HomeMy WebLinkAboutResolution - 2007-R0438 - Parking Facilities Lease Agreement - 1859 Management Partners LP - 09/13/2007Resolution No. 2007—RO438
September 13, 2007
Item No. 6.11
1:7:063KI I>�1 GIN
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Parking Facilities Lease
Agreement with 1859 Management Partners, L.P. Said agreement is attached hereto and
incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the Council.
Passed by the City Council this 13th day of September 2007.
DAVID A. MILLER, MAYOR
ATTEST:
Rebec a Garza, City Secretary
APPROVED AS TO CONTENT:
Rob Allis , istant ity Manager
Development Services
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
Lc: CityAtt/Linda/Res-Conference Center Parking Facilities Lease
September 5, 2007
Resolution No. 2007-R0438
PARKING FACILITIES
LEASE AGREEMENT
between
1859 MANAGEMENT PARTNERS, LP,
as Lessor
and
CITY OF LUBBOCK,
as Lessee
TABLE OF CONTENTS
Page
ARTICLE I GRANT, TERM OF LEASE AND CERTAIN DEFINITIONS................................1
I.I.
Leasing Clause.........................................................................................................1
1.2.
Term.........................................................................................................................1
1.3.
Certain Definitions...................................................................................................1
1.3.1. AV Taxes.....................................................................................................2
1.3.2. Base Rental..................................................................................................2
1.3.3. City Facilities Lease.....................................................................................2
1.3.4. Commencement Date...................................................................................2
1.3.5. Conference/Civic Center..............................................................................2
1.3.6. Impositions...................................................................................................2
1.3.7. Improvements..............................................................................................2
1.3.8. Land.............................................................................................................2
1.3.9. Lease............................................................................................................2
1.3.10. Leased Premises...........................................................................................2
1.3.11. Leseee..........................................................................................................2
1.3.12. Lessor...........................................................................................................2
1.3.13. Master Development Agreement.................................................................2
1.3.14. Party or Parties.............................................................................................2
1.3.15. Project..........................................................................................................3
1.3.16. Restrictions and Limitations........................................................................3
1.3.17. Term.............................................................................................................3
ARTICLEII
BASE RENTAL..................................................................................................3
2.1.
Base Rental..............................................................................................................3
ARTICLE III
IMPOSITIONS AND UTILITIES......................................................................3
3.1.
Payment of Impositions...........................................................................................3
3.2.
Contest of Impositions.............................................................................................3
3.3.
Certain Provisions Related to AV Taxes.................................................................3
3.4.
Utilities.....................................................................................................................3
ARTICLE IV
IMPROVEMENTS.............................................................................................4
4.1.
Improvement Rights.................................................................................................4
4.2.
Right to Alter...........................................................................................................4
4.3.
Easements and Dedications......................................................................................4
4.4.
Zoning and Permits..................................................................................................4
ARTICLE V USE OF PREMISES
5.1. Use ...............................
5.2. Compliance with Laws
5.3. Maintenance; Casualty.
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Parking Facilities Lease Agreement
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ARTICLE VI INSURANCE AND INDEMNITY...
6.1. Liability Insurance...................................................................................................5
6.2. Workers' Compensation Insurance..........................................................................5
6.3. Policies.....................................................................................................................6
6.4. Environmental Investigation and Remediaton.........................................................6
ARTICLE VII NO ASSIGNMENT BY LESSEE AND NONDISTURBANCE .......................7
7.1. No Assignment.........................................................................................................7
7.2. Nondisturbance Agreements....................................................................................7
ARTICLE VIII DEFAULT OF LESSOR OR LESSEE
7
8.1
Defaults....................................................................................................................7
11.1.2. Authority ....................................................................................................10
ARTICLE LX
REMEDIES
9.1.
Remedies of Lessee..................................................................................................8
11.1.5. Consents.....................................................................................................11
9.2.
Remedies of Lessor..................................................................................................8
l
ARTICLEX
CONDEMNATION............................................................................................8
11.1.8. Compliance with Laws..............................................................................11
10.1.
Definitions................................................................................................................8
10.2.
Efforts to Prevent Taking.........................................................................................9
10.3.
Entire Taking...........................................................................................................9
10.4.
Partial Taking...........................................................................................................9
11.2.3. Binding Obligations...................................................................................12
10.5.
Temporary Taking...................................................................................................9
10.6.
Effect of Taking.....................................................................................................10
ii
10.7.
Settlement of Proceedings......................................................................................10
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND SPECIAL
COVENANTS...................................................................................................10
11.1. Lessee's Representations, Warranties and Special Covenants..............................10
11.1.1. Existence....................................................................................................10
11.1.2. Authority ....................................................................................................10
11.1.3. Binding Obligation.....................................................................................10
11.1.4. No Defaults................................................................................................10
11.1.5. Consents.....................................................................................................11
11.1.6. Proceedings................................................................................................1
l
11.1.7. Impositions.................................................................................................
11
11.1.8. Compliance with Laws..............................................................................11
11.1.9. As-Is...........................................................................................................11
11.2. Lessor's Representations, Warranties and Special Covenants..............................11
11.2.1. Existence....................................................................................................11
11.2.2. Authority ....................................................................................................1
l
11.2.3. Binding Obligations...................................................................................12
11.2.4. No Default..................................................................................................12
11.2.5. Consents.....................................................................................................12
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Parking Facilities Lease Agreement
11.2.6. Proceedings ........................
11.2.7. Impositions .........................
11.2.8. Compliance with Laws ......
11.2.9. Quiet Enjoyment ................
11.2.10 Limitations ........................
ARTICLE XII MISCELLANEOUS ..................
12.1. Inspection...................................................................
12.2. Estoppel Certificates..................................................
12.3. Release.......................................................................
12.4. Lessee's Right to Perform Lessor's Covenants .........
12.5. Notices.......................................................................
12.6. Successors and Assigns ..............................................
12.7. Modifications.............................................................
12.8. Descriptive Headings .................................................
12.9. Unavoidable Default and Delays ...............................
12.10. Partial Invalidity.........................................................
12.11. Applicable Law and Venue ........................................
12.12. Attorneys' Fees..........................................................
12.13. Interpretation..............................................................
12.14. Brokerage Commission ..............................................
12.15. Short Form.................................................................
12.16. No Third Party Beneficiaries .....................................
12.17. Lessor's Lien Waiver .................................................
12.18. Non-Waiver................................................................
12.19. Survival......................................................................
12.20. Entire Agreement.......................................................
12.21. Lessor Mortgages.......................................................
12.22. Counterparts...............................................................
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Parking Facilities Lease Agreement
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Resolution No. 2007-RO438
PARKING FACILITIES LEASE AGREEMENT
This Parking Facilities Lease Agreement (this "Lease") is entered into as of the Bth day
of September, 2007, by and between 1859 MANAGEMENT PARTNERS, LP, a Texas limited
partnership ("Lessor") and the CITY OF LUBBOCK, a political subdivision of the State of
Texas located in Lubbock County, Texas ("Lessee"). Lessor and Lessee sometimes are referred
to herein collectively as the "Parties" or singularly as a "Party."
RECITALS
A. Lessee, Overton Park Hotel, LP and Garfield Traub Development, LLC (which
limited liability company is a limited partner of Lessor), entered into the Master Development
Agreement (hereinafter defined), regarding the construction and financing of hotel,
conferencelcivic center ("Conference/Civic Center) and parking lot facilities in the City of
Lubbock, Texas, to accomplish, among other things, serving the needs of the City of Lubbock,
producing increased tax revenues, promoting tourism and the convention and hotel industry in
the City of Lubbock and otherwise to benefit the public. This Lease is being entered into as
contemplated in the Master Development Agreement.
B. Lessor is the owner of the Land (hereinafter defined), and Lessor has agreed to
lease the Leased Premises (hereinafter defined) to Lessee for parking for the Conference/Civic
Center.
C. Lessor desires to lease to Lessee, and Lessee desires to lease and take from
Lessor, the Leased Premises on the terms set forth in this Lease.
ARTICLE I
Grant, Term of Lease and Certain Definitions
1.1 LeasingClause. Upon and subject to the terms and provisions contained herein,
Lessor does hereby lease, demise and let unto Lessee, and Lessee does hereby take and lease
from Lessor, the Leased Premises, to have and to hold the Leased Premises, together with all
rights, privileges and appurtenances belonging to or in any way pertaining to the Leased
Premises, for the term hereinafter provided. This Lease is made and accepted subject to the
Restrictions and Limitations (hereinafter defined), and all laws, ordinances and other police
power and governmental regulations affecting the Leased Premises.
1.2 Term. The term of this Lease shall be for a period commencing on the
Commencement Date (hereinafter defined) and terminating on the 40th anniversary of the
commencement date of the City Facilities Lease or on the last day of any extension of the City
Facilities Lease (herein defined), as applicable, unless earlier terminated in accordance with the
provisions of this Lease.
1.3 Certain Definitions. The following terms shall have the meaning set forth below
in this Section 1.3:
Parking Facilities Lease Agreement — Page I
1.3.1 AV Taxes. Any and all property and ad valorem taxes assessed against
the Leased Premises or Lessee's interest therein.
1.3.2 Base Rental. The amount of $1.00 per year payable on or before the last
day of each lease year.
1.3.3 City Facilities Lease. That certain City Facilities Lease Agreement to be
entered into with 1859 Management Partners, LP, as lessee, pursuant to which the City of
Lubbock, as lessor thereunder, leases the Conference/Civic Center pursuant to Section 4.2.3 of
the Master Development Agreement.
1.3.4 Commencement Date. The date first above written, on which date this
Lease has been fully executed and delivered by Lessor and Lessee.
1.3.5 Conference/Civic Center. The Lessee's Conference/Civic Center defined
in the Recitals.
1.3.6 Imositions. Taxes and assessments against the Leased Premises that
accrue during the Term.
1.3.7 Improvements. All buildings, structures, equipment, improvements and
fixtures from time to time constructed, installed or situated on the Land.
1.3.8 Land. The real property described in Exhibit A attached hereto and made
a part hereof.
1.3.9 Lease. This Lease Agreement by and between Lessor and Lessee,
covering the Leased Premises.
1.3.10 Leased Premises. The Land, together with all present and future
Improvements now or hereafter located on the Land, and other rights, privileges and
appurtenances benefiting, belonging to or in any way appertaining thereto.
1.3.11 Lessee. The City of Lubbock, apolitical subdivision of the State of Texas,
located in Lubbock County, Texas.
1.3.12 Lessor. 1859 Management Partners, LP, a Texas limited partnership.
1.3.13 Master Development Agreement. That certain Master Development
Agreement dated February 24, 2006, by and among Lessee, Overton Park Hotel, LP and Garfield
Traub Development LLC, relating to the initial development of the Project.
1.3.14 Party or Parties. Party or Parties mean the Lessee or Lessor as set forth in
the Preamble.
Parking Facilities Lease Agreement — Page 2
1.3.15 Proiect. The hotel, conference/civic center and parking lot facilities
project described as the "Project' in the Master Development Agreement.
1.3.16 Restrictions and Limitations. Those certain matters described on
Exhibit B, attached hereto and made a part hereof for all purposes, which affect the Land, and to
which this Lease is made subject.
1.3.17 Term. The term of this Lease as provided in Section 1.2 of this Lease.
ARTICLE II
Base Rental
2.1 Base Rental. On or before the Commencement Date, Lessee shall pay Lessor the
full amount of the Base Rental as rental for the use and occupancy of the Leased Premises during
the Term.
ARTICLE III
Impositions and Utilities
3.1 Payment of Impositions. Except as provided elsewhere in this Article III, Lessor
shall pay all Impositions before the same become delinquent, and, at the request of Lessee, shall
famish to Lessee receipts or copies thereof showing the payment of such Impositions. Lessor
shall be entitled to pay, or cause to be paid, any Impositions in installments as and to the extent
the same may be permitted by the applicable taxing authority or claimant. Lessee agrees to
cooperate with Lessor in seeking the delivery of all notices of Impositions to Lessor directly
from the applicable taxing authorities.
3.2 Contest of Impositions. If the levy of any of the Impositions shall be deemed by
Lessor to be improper, illegal or excessive, or if Lessor desires in good faith to contest the
Impositions for any other reason, Lessor may, at no cost to Lessee, dispute and contest the same
and file all such protests or other instruments and institute or prosecute all such proceedings for
the purpose of contest as Lessor shall deem necessary or appropriate; provided, however, that
Lessor shall not permit any lien which may be imposed against the Leased Premises for
contested Impositions to be foreclosed. Subject to the foregoing, any item of contested
Imposition need not be paid until it is finally adjudged to be valid.
3.3 Certain Provisions Related to AV Taxes. Lessor and Lessee acknowledge that
Lessor has leased the Leased Premises to Lessee to be used and operated as a public parking
facility.
3.4 Utilities. After the Commencement Date and during the Term, Lessor shall pay
any bills for utility service furnished to the Leased Premises, including, but not limited to, bills
for water, electricity, gas, telephone, drainage and sewer service.
Parking Facilities Lease Agreement — Page 3
ARTICLE H
Improvements
4.1 Improvement Riehts. Lessor shall have the right, at its option and expense
(subject only to the Restrictions and Limitations and the express provisions set forth in this
Lease) to develop any and all portions of the Leased Premises and to erect Improvements on the
Leased Premises; provided, Lessor provides, on a timely basis, an equivalent number of
alternative parking spaces to Lessee, suitable for use by the Conference/Civic Center, for any
parking spaces that are lost to the Improvements.. Such Improvements, together with any
furnishings, operating supplies, equipment, and any other contents, shall remain the property of
Lessor.
4.2 RiPht to Alter. Lessor shall have the right, at its sole cost and in its sole
discretion subject to the terms of this Lease, to alter, add to, reconstruct, reconfigure, remodel or
rebuild, as often as and whenever Lessor deems proper or desirable, any of the Improvements;
provided, there are parking spaces available to, and suitable for use by, the Convention/Civic
Center equivalent in number to the original parking spaces on the Leased Premises.
4.3 Easements and Dedications. In order to develop the Leased Premises, it may be
necessary or desirable that (a) street, water, sewer, drainage, gas, power lines, set back lines or
other easements, dedications or similar rights be granted or dedicated over or within portions of
the Leased Premises by plat, replat, grant, deed or other appropriate instrument or acquired on
other properties, or (b) that existing street, sewer, drainage, gas, power lines, set back lines or
other easements, dedications or similar rights on, in the vicinity of or affecting the Leased
Premises or portions thereof be vacated or abandoned. Lessee shall, on written request of Lessor
cooperate with or assist Lessor (at Lessor's expense), from time to time throughout the Term, as
may be reasonably appropriate or necessary for the development of the Leased Premises or to
reasonably facilitate future Improvements on the Leased Premises or the operation of the Leased
Premises as a parking facility.
4.4. Zonine and Permits. In the event that Lessor deems it necessary or appropriate to
obtain use, zoning, site plan approval or any permit from any governmental entity having
jurisdiction over the Leased Premises or any part thereof, Lessee, from time to time on request of
Lessor, shall cooperate in such applications as may be appropriate.
Ift7J 061 A'/
Use of Premises
5.1 Use. Lessee shall have the exclusive right, subject to the Restrictions and
Limitations, and the provisions of this Lease, including, but not limited to, Article IV, to use the
Leased Premises solely for a public parking facility to serve the Conference/Civic Center.
5.2 Compliance with Laws. Lessee agrees not to use the Leased Premises for any use or
purpose in violation of any valid and applicable law, regulation or ordinance of the United
Parking Facilities Lease Agreement — Page 4
States, the State of Texas, the City of Lubbock or other lawful governmental authority having
jurisdiction over the Leased Premises, including, without limitation, the Americans with
Disabilities Act of 1990, as amended; provided, however, there shall be no violation by Lessee of
this provision (a) so long as Lessee shall, in good faith within a reasonable time after Lessee
acquires actual knowledge thereof, by appropriate proceedings and with due diligence, contest
the alleged violation or the validity or applicability of the law, regulation or ordinance; (b) until
Lessee has had a reasonable time to cure such violation after a final adjudication that such law,
regulation or ordinance, in fact, has been violated; and (c) so long as neither Lessor nor any
portion of the Leased Premises, during the period of such contest, will be subject to any liability,
loss, penalty or forfeiture.
5.3 Maintenance; Casualty.
(a) Subject to the rights of Lessee pursuant to Section 4.1 and Section 4.2 hereof and
to Lessee's obtaining all necessary governmental permits, Lessor shall keep the public parking
facilities on the Leased Premises in a state of good repair (reasonable wear and tear excepted) to
the reasonable satisfaction of Lessee.
(b) With regard to casualty damage to the Leased Premised, Lessor will within 12
months after the date of the casualty, commence the work of repair, reconstruction or
replacement of the damaged property to the extent insurance proceeds are available to cover the
costs and to the extent such spaces are still needed to serve the Conference/Civic Center.
ARTICLE VI
Insurance and Indemnity
6.1 Liability Insurance. Lessor, at its sole expense agrees to obtain and maintain
public liability insurance at all times during the Term of this Lease with responsible insurance
companies, legally authorized to transact business in the State of Texas for bodily injury
(including death) and property damage with minimum limits of $3,000,000.00 Combined Single
Limit protecting Lessor and Lessee against any liability, damage, claim or demand arising out of
or connected with the condition or use of the Leased Premises and to name Lessee as an
additional insured on a primary and non-contributory basis. Such insurance shall include
contractual liability, personal injury and advertising liability, liquor liability, business automobile
(including owned, non -owned and hired) and independent contractor liability. Such insurance
coverage must be written on an "occurrence" basis. It must be maintained by any combination
of single policies and umbrella policies and may be obtained and maintained by a sublessee with
respect to that portion of the Leased Premises subleased to such sublessee. All policies shall
include a waiver of subrogation in favor of the Lessee.
6.2 Workers' Compensation Insurance. Lessor agrees, at its sole expense, to obtain
and maintain workers' compensation insurance, as required by applicable law, during the Term,
and if so required, with statutory limits and employer's liability with limits of $500,000.00 each
accident, $500,000.00 disease each employee and $500,000.00 disease per policy with a waiver
of subrogation in favor of Lessee
Parking Facilities Lease Agreement — Page 5
6.3 Policies. All insurance policies required by this Article VI shall, if possible,
provide for at least 30 days written notice to Lessee before cancellation and certificates or copies
of policies of insurance shall be delivered to Lessee. If any blanket general insurance policy of
Lessor complies with the terms of these provisions, the naming of Lessee therein as additional
insured on a primary and non-contributory basis shall be deemed compliance with the
requirements for the insurance coverage provided in any such blanket policy. Lessor and
Lessee hereby waive all claims, rights of recovery and causes of action that either party or
any party claiming by, through or under such party by subrogation or otherwise may now
or hereafter have against the other party or any of the other party's partners, directors,
officers, employees or agents, for bodily injuries (including death) to persons, or loss or
damage to property of Lessor and Lessee whether caused by the negligence or fault of
Lessor and Lessee or their partners, directors, officers, employees or agents or otherwise,
to the extent that the injuries, loss or damages are covered by the proceeds of insurance
policies maintained by either party.
6.4 Environmental Investigation and Remediation.
(a) Lessor shall be responsible for performing any environmental investigation and
remediation work which may be required in connection with the use and occupancy of the
Leased Premises and which is caused by the presence of Hazardous Materials (hereinafter
defined) on the Leased Premises, except to the extent such work results from the act of Lessee or
its officers, employees, representatives or agents. Such environmental investigation and
remediation work shall be carried out in accordance with all applicable laws. Lessor shall notify
and advise Lessee of the remediation Lessor will undertake and the procedures to be used.
Lessor shall complete the remediation with due diligence and shall comply with, and shall cause
its agents and contractors to comply with, all applicable laws regarding the use, removal, storage,
transportation, disposal and remediation of Hazardous Materials. Lessor's obligation as
provided above to undertake environmental investigation and remediation of the Leased
Premises shall be a continuing obligation of Lessor throughout the Term.
(b) The term "Hazardous Materials" means any substance, material or waste which is
now or hereafter classified or considered to be hazardous, toxic or dangerous under any federal,
state or local laws, rules and regulations (collectively "Laws") affecting the Leased Premises
relating to pollution or the protection or regulation of human health, natural resources or the
environment, but shall exclude any such items that are necessary for the ordinary performance of
Lessee's business activities, provided that such are used, stored and disposed of in compliance
with all Laws. If Lessee breaches its obligations under this Section 6.4 and such breach is not
cured following notice and within the applicable cure period specified in Article VIII below,
Lessor may take any and all action reasonably appropriate to remedy such breach, including
taking all appropriate action to clean up or remediate any contamination resulting from Lessee's
use, generation, storage or disposal of Hazardous Materials, and Lessee shall promptly pay all
reasonable costs incurred by Lessor in connection therewith. To the extent permitted under
applicable law, Lessor shall defend, indemnify and hold harmless Lessee and the officers, agents,
employees and representatives of Lessee, from and against any and all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including reasonable
attorneys' fees and cost of clean up and remediation) arising from Lessor's failure to comply
Parking Facilities Lease Agreement — Page 6
with the provisions of this Section 6.4. This indemnity provision shall survive termination or
expiration of this Lease.
ARTICLE VII
No Assignment by Lessee and Nondisturbance
7.1 No Assignment. Lessee shall not have the right to sell, assign, mortgage or sublet
all or any portion of the leasehold estate created hereby except pursuant to the City Facilities
Lease.
7.2 Nondisturbance Agreement. Upon the written request of Lessee, Lessor will
provide a nondisturbance agreement, in form reasonably acceptable to both Lessee and Lessor, to
Lessee or to any person designated by Lessee.
ARTICLE VIII
Default of Lessor or Lessee
8.1 Defaults.
(a) Each of the following occurrences shall be an "Event of Default":
(i) Estoppel. Lessee, as applicable, fails to provide any estoppel certificate
after Lessor's written request therefor pursuant to Section 12.2 and such failure shall
continue for five days after Lessor's second written notice thereof to Lessee;
(ii) Insurance. Lessor fails to procure, maintain and deliver to Lessee
evidence of the insurance policies and coverages as required under Article VI within 10
business days after written notice from Lessee;
(iii) Mechanic's Liens. Lessor fails to pay and release of record, or diligently
contest and bond around, any mechanic's lien filed against the Leased Premises for any
work performed, materials furnished, or obligation incurred by or at the request of Lessor
within 30 days after written notice thereof;
(iv) Other Defaults. Lessor's or Lessee's failure to perform, comply with, or
observe any other agreement or obligation of Lessor or Lessee under this Lease and the
continuance of such failure for a period of more than 30 days after Lessor or Lessee, as
the case may be, has delivered to the non -defaulting party written notice thereof or such
longer period as may be reasonably necessary, provided Lessor or Lessee commences to
cure such failure and proceeds diligently to completion; and
(v) Insolvency. The filing of a petition by or against Lessor or Lessee (1) in
any bankruptcy or other insolvency proceeding; (2) seeking any relief under any state or
federal debtor relief law; (3) for the appointment of a liquidator or receiver for all or
Parking Facilities Lease Agreement — Page 7
substantially all of Lessor's or Lessee's property or for Lessor's or Lessee's interest in
this Lease; (4) for the reorganization or modification of Lessee's capital structure; or
(5) in any assignment for the benefit of creditors proceeding; however, if such a petition
is filed against Lessor or Lessee, then such filing shall not be an Event of Default unless
Lessor or Lessee, as applicable, fails to have the proceedings initiated by such petition
dismissed within 90 days after the filing thereof.
(b) Upon and during the continuance of any Event of Default, Lessor or Lessee, as
applicable, may, in addition to all other rights and remedies afforded Lessor or Lessee hereunder
or by law or equity, perform any act Lessor or Lessee is obligated to perform.
ARTICLE IX
Remedies
9_1 Remedies of Lessee. In the event of any breach by Lessor of any covenant of
Lessor under this Lease, Lessee shall have the right to deliver to Lessor a written notice
specifying such breach, and unless within 90 days from and after the date of delivery of such
notice Lessor shall have commenced to remove or to cure such breach or occurrence and shall
be proceeding with reasonable diligence to completely remove or cure such breach or
occurrence, then Lessor shall be in default hereunder, in which event Lessee may, in addition
to all other rights and remedies afforded Lessee hereunder or by law or equity, have the right
to damages suffered or incurred by Lessee as a result of such default, the right to an injunction
and/or an order seeking specific performance. All remedies of Lessee under this Lease shall
be cumulative, and the failure to assert any remedy or the granting of any waiver (as provided
in Section 12.17 of this Lease) of any event of default shall not be deemed to be a waiver of
such remedy or any subsequent event of default.
9_2 Remedies of Lessor. Lessor agrees that its sole remedy against Lessee for any
default by Lessee hereunder shall be to enforce specific performance of Lessee's obligations
hereunder and/or perform any obligations required of Lessee on behalf of Lessee and be
reimbursed therefore. Accordingly, notwithstanding anything to the contrary herein, Lessor
waives any and all other remedies available to Lessor at law or in equity, including without
limitation any right to terminate this Lease or to terminate Lessees' right of possession of the
Leased Premises.
ARTICLE X
Condemnation
10.1 Definitions. Whenever used in this Article, the following words shall have the
definitions and meanings hereinafter set forth:
(a) "Condemnation Proceedings". Any action brought for the purpose of any taking
of the Leased Premises, or any part thereof or any property interest therein (including, without
Parking Facilities Lease Agreement—Page 8
limitation, the right to the temporary use of all or any portion of the Leased Premises), by
competent authority as a result of the exercise of the power of eminent domain, including a
voluntary sale to such authority either under threat of condemnation or while such action or
proceeding is pending.
(b) "Taking" or "Taken". The event and date of vesting of title to the Leased
Premises or any part thereof or any property interest therein (including, without limitation, the
right to the temporary use of all or any portion of the Leased Premises), pursuant to a
Condemnation Proceeding.
10.2 Efforts to Prevent Taking. Lessee shall use reasonable efforts to cause all other
competent authorities with the power of eminent domain to refrain from instituting any
Condemnation Proceedings or exercising any other powers of eminent domain with respect to
the Leased Premises, or any part thereof or any interest therein, during the Term of this Lease.
10.3 Entire Taking. If all or substantially all of the Leased Premises shall be Taken in
Condemnation Proceedings, Base Rental shall be fully abated from and after the date of such
Taking and from and after such date Lessee and Lessor shall not have any other obligations
under this Lease with respect to the Leased Premises.
10.4 Partial Taking.
(a) If less than all of the Leased Premises shall be Taken in Condemnation
Proceedings, no portion of the Base Rental shall be abated, but from and after such date Lessee
and Lessor shall not have any other obligations under this Lease with respect to the portion of the
Leased Premises that has been taken.
(b) If, following such Taking, in the opinion of Lessee it is not economically feasible
to continue this Lease, then Lessee, at its election, may vacate the Leased Premises, whereupon
the Base Rental shall be fully abated from and after the date of such vacating, and from and after
such date Lessee and Lessor shall not have any other obligations under this Lease with respect to
the Leased Premises. Such election to vacate, and the vacating of the Leased Premises, must be
exercised and completed no later than 180 days after the date of such Taking.
(c) If Lessee does not elect to vacate the Leased Premises upon any partial Taking,
then (i) the Leased Premises shall be reduced by the portion thereof Taken in the Condemnation
Proceeding, and the Base Rental payable hereunder shall be equitably reduced during the
unexpired portion of the Term as provided above, and (ii) Lessor shall commence and proceed
with reasonable diligence to repair or reconstruct the remaining Improvements on the Leased
Premises; provided, however, Lessor's obligation to so repair or reconstruct the remaining
Improvements shall be limited to the proceeds of the condemnation award actually received by
Lessor.
10.5 Temporary Taking. If any right of temporary possession or occupancy of all or
any portion of the Leased Premises shall be Taken, the Base Rental shall be reduced during the
duration of such Taking in a fair and equitable manner that reflects the inability of Lessee to use
the affected portion of the Leased Premises.
Parking Facilities Lease Agreement — Page 9
10.6 Effect of Taking.
(a) No Taking shall have the effect of terminating this Lease. None of the provisions
of this Article X shall affect the right, title or interest of Lessee in the leasehold interest created
by this Lease. This Article X pertains only to Lessee's and Lessor's continuing obligations
under this Lease following a Taking and to the agreement between Lessor and Lessee regarding
any condemnation awards.
(b) At any time within 180 days following an entire Taking or a partial Taking
following which Lessee vacates the remaining Leased Premises as provided in Section 10.4(b)
above, Lessee may terminate this Lease by delivering a written termination notice to Lessor
specifying the effective date of such termination, in which event the Term shall terminate as of
the date specified by Lessee in such notice.
(c) Any award which shall be made as a result of a taking (i) of the leasehold interest
in the Leased Premises shall be paid to Lessee and (ii) of the fee simple title in the Land and the
improvements to the Land shall be paid to Lessor. Lessor shall deliver to Lessee that portion of
any condemnation award that Lessor may receive to which Lessee is entitled as provided in this
Section 10.6(c). The provisions of this Section 10.6(c) shall survive any such termination.
10.7 Settlement of Proceedings. Lessor shall not make any settlement with the
condemning authority in any Condemnation Proceedings nor convey or agree to convey the
whole or any portion of the Leased Premises to such authority in lieu of condemnation without
first obtaining the written consent of Lessee and any Lessor mortgagee.
ARTICLE XI
Representations, Warranties and Special Covenants
11.1 Lessee's Representations, Warranties and Special Covenants. Lessee hereby
represents, warrants and covenants as follows:
11.1.1 Existence. Lessee is a home rule municipal corporation of the State of
Texas duly incorporated and currently existing pursuant to the constitution and laws of the State
of Texas, including the Texas Local Government Code and Texas Government Code.
11.1.2 Authoritv. Lessee has all requisite power and authority to lease the
Leased Premises, to execute, deliver and perform its obligations under this Lease and to
consummate the transactions herein contemplated and, by proper action in accordance with all
applicable law has duly authorized the execution and delivery of this Lease, the performance of
its obligations under this Lease and the consummation of the transactions herein contemplated.
11.1.3 Binding Obligation. This Lease is a valid and binding obligation of
Lessee and is enforceable against Lessee in accordance with its terms.
11.1.4 No Defaults. The execution by Lessee of this Lease and the
consummation by Lessee of the transactions contemplated hereby (i) do not, as of the
Commencement Date, result in a breach of any of the terms or provisions of, or constitute a
Parking Facilities Lease Agreement —Page 10
default, or a condition which upon notice or lapse of time or both would ripen into a default,
under Lessee's charter or any resolution, indenture, agreement, instrument or obligation to which
Lessee is a party or by which the Leased Premises or any portion thereof is bound; and (ii) do
not, to the knowledge of Lessee, constitute a violation of any law, order, rule or regulation
applicable to Lessee or any portion of the Leased Premises of any court or of any federal or state
or municipal regulatory body or administrative agency or other governmental body having
jurisdiction over Lessee or any portion of the Leased Premises.
11.1.5 Consents. No permission, approval or consent by third parties or any
other governmental authorities is required in order for Lessee to enter into this Lease, make the
agreements herein contained or perform the obligations of Lessee hereunder other than those
which have been obtained.
11.1.6 Proceedinps. There are no actions, suits or proceedings pending or, to the
reasonable best knowledge of Lessee, threatened or asserted against Lessee affecting any portion
of the Leased Premises, at law or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign.
11.1.7 Impositions. Lessee has not received any notice of any condemnation
actions or special assessments which are pending or being contemplated with respect to the
Leased Premises or any portion thereof.
11.1.8 Compliance with Laws. Lessee has not received any notice of any
violation of any ordinance, regulation, law or statute of any governmental agency pertaining to
the Leased Premises or any portion thereof.
11.1.9 As-Is. Lessee accepts the leasehold interest in the Leased Premises
granted by this Lease on an "as-is" basis with all faults, and without warranties express or
implied. Other than as expressly set forth in Section 11.2 below, Lessee is not relying on any
representations, disclosures or non-assertions by Lessor in connection with the lease of the
Leased Premises. By acceptance of this Lease, Lessee releases any claim or cause of action
Lessee may have against Lessor, its officers and employees, based upon the condition of the
Leased Premises, its suitability (or lack thereof) for any specific purpose, or arising in connection
with the terms of this Lease. This release is binding upon Lessee, and Lessee's successors, if
any.
11.2 Lessor's Representations, Warranties and Special Covenants. Lessor hereby
represents, warrants and covenants as follows:
11.2.1 Existence. Lessor is duly organized and validly existing under the laws
of Texas, the state of its organization.
11.2.2 Authoritv. Lessor has all requisite power and authority to own its
property, operate its business, enter into this Lease and consummate the transactions herein
contemplated, and by proper action has duly authorized the execution and delivery of this Lease
and the consummation of the transactions herein contemplated.
Parking Facilities Lease Agreement — Page I I
11.2.3 Binding Obligations. This Lease is a valid obligation of Lessor and is
binding upon Lessor in accordance with its terms.
11.2.4 No Defaults. The execution by Lessor of this Lease and the
consummation by Lessor of the transactions contemplated hereby (i) do not, as of the
Commencement Date, result in a breach of any of the terms or provisions of, or constitute a
default, or a condition which upon notice or lapse of time or both would ripen into a default,
under Lessor's charter or any resolution, indenture, agreement, instrument or obligation to which
Lessor is a parry or by which the Leased Premises or any portion thereof is bound; and (ii) do
not, to the knowledge of Lessor, constitute a violation of any law, order, rule or regulation
applicable to Lessor or any portion of the Leased Premises of any court or of any federal or state
or municipal regulatory body or administrative agency or other governmental body having
jurisdiction over Lessor or any portion of the Leased Premises.
11.2.5 Consents. No other permission, approval or consent by third parties or
any other governmental authorities is required in order for Lessor to enter into this Lease or
consummate the transactions herein contemplated, other than those which have been obtained.
11.2.6 Proceedings. There are no actions, suits or proceedings pending or, to the
reasonable best knowledge of Lessor, threatened or asserted against Lessor affecting any portion
of the Leased Premises, at law or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign.
11.2.7 Im3ositions. Lessor has not received any notice of any condemnation
actions or special assessments which are pending or being contemplated with respect to the
Leased Premises or any portion thereof.
11.2.8 Compliance with Laws. Lessor has not received any notice of any
violation of any ordinance, regulation, law or statute of any governmental agency pertaining to
the Leased Premises or any portion thereof.
11.2.9 Ouiet Enjoyment. During the Term of this Lease and subject to the terms
of this Lease, Lessee shall have the quiet enjoyment and peaceable possession of the Leased
Premises against hindrance or disturbance by Lessor or by any person or entity acting by,
through or under Lessor.
11.2.10 Limitations. Except as otherwise expressly provided herein, this Lease is
made by Lessor without representation or warranty of any kind, either express or implied, as to
the condition of the Leased Premises, its merchantability, its condition or its fitness for Lessee's
intended use or for any particular purpose.
ARTICLE XII
Miscellaneous
12.1 Inspection. Lessee shall permit Lessor and its agents and any Lessor mortgagee
and its agents to enter into and upon the Leased Premises for the purpose of inspecting the same
Parking Facilities Lease Agreement — Page 12
on condition that Lessee's and Lessee's tenants' and invitees' quiet enjoyment of the same is not
interfered with.
12.2 Estoppel Certificates. Lessee and Lessor shall, at any time and from time to time
upon not less than ten days' prior written request by the other Party execute, acknowledge and
deliver to Lessor, Lessee, or Lessor's mortgagee, as the case may be, a statement in writing
certifying (a) its ownership of the interest of Lessor or Lessee hereunder (as the case may be), (b)
that this Lease is unmodified and in full force and effect (or if there have been any modifications,
that the same is in full force and effect as modified and stating the modifications), (c) the dates to
which the Base Rental has been paid, and (d) that, to the best knowledge of Lessor or Lessee, as
the case may be, no default hereunder on the part of the other Party exists (except that if any such
default does exist, the certifying Party shall specify such default).
12.3 Release. If requested by Lessor, Lessee, upon termination of this Lease, shall
execute and deliver to Lessor an appropriate release, in form proper for recording, of all Lessee's
interest in the Leased Premises, and upon request of Lessee, Lessor will execute and deliver a
written cancellation and termination of this Lease and release of all claims (if none are then
outstanding) in proper form for recording to the extent such release is appropriate under the
provisions hereof.
12.4 Lessee's Right to Perform Lessor's Covenants. If Lessor shall fail in the
performance of any of its covenants, obligations or agreements contained in this Lease, and such
failure shall continue without Lessor curing or commencing to cure such failure within all
applicable grace and/or notice and cure periods, Lessee, after ten days' additional written notice
to Lessor specifying such failure (or shorter notice if any emergency meaning that there is
imminent danger to the safety of persons or of substantial damage to property exists), may (but
without any obligation to do so) perform the same for the account and at the expense of Lessor,
and the amount of any payment made or other reasonable expenses (including reasonable
attorneys' fees incurred by Lessee for curing such default), with interest thereon at the rate of
10% per annum, shall be payable by Lessor to Lessee on demand. This provision is not in lieu
of, but is in addition to, any other rights or remedies Lessor may have with respect to any such
failure of performance by Lessor.
12.5 Notices.
(a) Any notice to be given or to be served in connection with this Lease must be in
writing and shall be given only by (i) actual delivery, (ii) overnight courier, or (iii) telecopy and
shall be deemed to have been given and received upon actual delivery, addressed as follows:
Parking Facilities Lease Agreement — Page 13
If to Lessee:
City Manager
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Attention: Rob Allison, Assistant City Manager
Telecopy No. (806) 775-2051
With a copy to:
City Attorney
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Attention: Linda Chamales, Senior Attorney
Telecopy No. (806) 775-3307
If to Lessor:
1859 Management Partners, LP
c/o Gal -Tex Hotel Corporation
2302 Postoffice Street, Suite 500
Galveston, Texas 77550-1935
Attention: Eugene Lucas
Telecopy No.: (409) 763-5304
With a copy to:
Winstead
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attention: John C. Rutherford, Esq.
Telecopy No.: (214) 745-5390
"IT4I
Garfield Traub Development LLC
13455 Noel Road, Suite 2150
Dallas, Texas 75240
Attention: Daniel K. Hennessy, Esq.
Telecopy No.: (972)991-5150
provided, however, that any Party may at any time change the place of receiving notice by ten
days' written notice of such change of address to the other Party in accordance with the manner
of giving notice described above.
Parking Facilities Lease Agreement—Page 14
12.6 Successors and Assigns. The word "Lessee" as used in this instrument shall
extend to and include the entity executing this Lease, as lessee, as well as any and all persons or
entities who at any time or from time to time during the Term of this Lease shall succeed to the
interest and estate of Lessee hereunder (if approved by Lessor) and all of the covenants,
agreements, conditions and stipulations herein contained which inure to the benefit of or are
binding upon Lessee shall also inure to the benefit of and shall be jointly and severally binding
upon the successors, assigns, and grantees of Lessee (if approved by Lessor) and each of them,
and any and all persons who at any time to from time to time during the Term shall succeed to
the interest and estate of Lessee created thereby. The word "Lessor" as used in this instrument
shall extend to and include the entity executing this instrument, as lessor, as well as any and all
persons or entities who at any time or from time to time during the term of this Lease shall
succeed to the interest and estate of Lessor in the Leased Premises, and all of the covenants,
agreements, conditions and stipulations herein contained which inure to the benefit of or are
binding upon Lessor shall also inure to the benefit of and shall be jointly and severally binding
upon the successors, assigns or other representatives of Lessor, and of any and all persons who
shall at any time or from time to time during the Term of this Lease succeed to the interest and
estate of Lessor in the Leased Premises.
12.7 Modifications. This Lease may be modified only by written agreement signed by
Lessor and Lessee.
12.8 Descriptive Headings. The descriptive headings of this Lease are inserted for
convenience in reference only and do not in any way limit or amplify the terms and provisions of
this Lease.
12.9 Unavoidable Default and Delays. The time within which either Party hereto shall
be required to perform any act under this Lease shall be extended by a period of time equal to the
number of days during which performance of such act is delayed by condemnation, casualty
damage, strikes, lockouts, acts of God, governmental restrictions, failure or inability to secure
materials or labor, reason of priority or similar regulations or order of any governmental or
regulatory body, enemy action, civil disturbance, fire, unavoidable casualties or any other cause
beyond the reasonable control of the party seeking the delay.
12.10 Partial Invalidity. If any term, provision, condition or covenant of this Lease or
the application thereof to any Party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this Lease, or the application of such term, provisions, condition
or covenant to persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
12.11 Applicable Law and Venue. This Lease shall be governed by and construed in
accordance with the laws of the State of Texas and the terms, provisions, obligations and
covenants hereof are performable in Lubbock County, Texas. The Parties hereby agree that
exclusive venue for any action instituted in connection with this Lease, or to enforce the right of
either Party hereunder, shall be in a court of competent jurisdiction in Lubbock County, Texas.
Parking Facilities Lease Agreement — Page 15
12.12 Attorneys' Fees. Should either Party to this Lease engage the services of
attorneys or institute legal proceedings to enforce its rights or remedies under this Lease, the
prevailing Party shall be entitled to recover its reasonable attorneys' fees, court costs and similar
costs incurred in connection, prosecution or defense in such proceedings from the other Party to
the extent authorized by law and awarded by the court.
12.13 Interpretation. Nothing contained herein shall be deemed or construed by the
Parties hereto or by any third party as creating the relationship of principal and agent,
partnership, joint venture or any association between the Parties hereto, it being understood and
agreed that none of the provisions contained herein or any acts of the Parties in the performance
of their respective obligations hereunder shall be deemed to create any relationship between the
Parties hereto other than the relationship of Lessor and Lessee.
12.14 Brokerage Commission. Lessor and Lessee represent and warrant one to the other
that no broker commission, finder's fees or similar compensation is due to any party claiming
through Lessor or Lessee, as applicable, and Lessor and Lessee, to the extent permitted by law,
agree to hold the other Party harmless from any liability to pay any such brokerage commission,
finder's fees or similar compensation to any parties claiming same through the indemnifying
Party.
12.15 Short Form. Lessor and Lessee agree to execute and deliver to each other a short
form of this Lease in recordable form which incorporates all of the terms and conditions of this
Lease by reference in the form attached hereto as Exhibit C.
12.16 No Third Party Beneficiaries. This Lease is solely for the benefit of the parties
hereto and their successors and assigns permitted under this Lease (including any Subtenant),
and no provisions of this Lease shall be deemed to confer upon any other person any remedy,
claim, liability, reimbursement, cause of action or other right.
12.17 Lessor's Lien Waiver. Lessor hereby waives all landlord's liens that Lessor
might hold, statutory or otherwise, to any of the Improvements and to any of Lessee's equipment
or other personal property now or hereafter placed on the Leased Premises.
12.18 Non -Waiver. No Party shall have or be deemed to have waived any default under
this Lease by the other Party unless such waiver is embodied in a document signed by the
waiving Party that describes the default that is being waived. Further, no party shall be deemed
to have waived its rights to pursue any remedies under this Lease, unless such waiver is
embodied in a document signed by such party that describes any such remedy that is being
waived.
12.19 Survival. Covenants in this Lease providing for performance after termination of
this Lease shall survive the termination of this Lease.
12.20 Entire Agreement. This Lease and the documents referenced in this Lease
constitute the entire agreement between Lessor and Lessee regarding the subject matter hereof.
There are no representations, promises or agreements of either Lessor or Lessee regarding the
subject matter of this Lease not contained in this Lease except for those agreements within the
Master Development Agreement dated February 24, 2006, and those agreements within the City
Parking Facilities Lease Agreement — Page 16
Facilities Lease which is or will be entered into between the parties regarding the use and
operation of the Conference/Civic Center.
12.21 Lessor Mortgages. Lessor shall have the right, from time to time, to grant a
mortgage, deed of trust or other lien on its fee interest in and to the Land and its rights hereunder.
Notwithstanding the foregoing, any such mortgage, deed of trust or lien shall expressly be
subject and subordinate to Lessee's leasehold interest created under this Lease, and such
leasehold estate and this Lease shall not be terminated or otherwise affected or disturbed by any
such mortgage, deed of trust or lien or exercise of any rights hereunder, including without
limitation, foreclosure of lien.
12.22 Counterparts. This Lease may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall compromise but a single
document.
[Remainder of Page Intentionally Left Blank]
Parking Facilities Lease Agreement — Page 17
EXECUTED as of the day and year first above written, but actually executed on the dates
set forth in the respective acknowledgments below.
ATTEST:
Rebetca. Garza, City Secretaz
APPROV D A, kTCONTENT:
J/Rob ssManager,
Development Services
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
Parking Facilities Lease Agreement — Page 18
LESSOR:
1859 MANAGEMENT PARTNERS, LP,
a Texas limited partnership
By: 1859 Management Partners GP
By:
Name: EegeneZAw As. *&t t c
Title: Manager
LESSEE:
CITY OF LUBBOCI , T XAS
By`--_�� vel
DAVID A. LLER, Mayor
STATE OF TEXAS
COUNTY OF&WfZSYt
This mi ent was acknowledged before me on the C day of �j r 2007,
by k J(1 I(1 )1 C 11 UI r of 1859 Management Partners GP, LLC,
general partner of 1859 MANAGEMENT TNERS, LP, a Texas limited partnership, on
behalf of said limited partnership.
--------------------
DEBORAH S. CLIFFORD
Notary public, State of Texas
Na My Commission Expires
" eopte 06-01-08
STATE OF TEXAS
COUNTY OF LUBBOCK
��kL
Notary Public in and f r the Sta f Texas
-Nk
This instrument was acknowledged before me on the [ 7 " day of�2007,
by David A. Miller, Mayor, CITY OF LUBBOCK, TEXAS, a political subdivision of the State
of Texas, located in Lubbock County, Texas, on behalf of said city.
Parking Facilities Lease Agreement — Page 19
NotarMblic in and for the State of Texas
Resolution No. 2007—RO438
EXHIBIT "A"
Land
BEGINNING at the Southeast Comer of Lot 1, Block 124, Overton Addition and the Northeast
Comer of Tract 9, Overton Park, Lubbock County, Texas;
THENCE S 00001'06" E a distance of 61.19 feet;
THENCE S 89053'08" W a distance of 287.53 feet;
THENCE SOUTH a distance of 35 feet;
THENCE S 89053'08" W a distance of 95.43 feet;
THENCE S 89053'08" W a distance of 192.07 feet;
THENCE N 00°06'52" W a distance of 153.14 feet;
THENCE S 89052'12" E a distance of 225.38 feet;
THENCE N 00°07'04" W a distance of 93.53 feet;
THENCE S 89°59'51" E a distance of 185.02 feet;
THENCE S 00°06' 14" E a distance of 93.94 feet;
THENCE S 8952'12" E a distance of 164.83 feet to the Point of Beginning and containing
approximately 1.69 acres.
[TO BE CORRECTED WHEN CONFERENCE/CIVIC CENTER TRACT IS SURVEYED.]
Parking Facilities Lease Agreement - Exhibit "A" - Page 1
9/10/2007 5:34 PM
EXHIBIT "B"
RESTRICTIONS AND LIMITATIONS
1. Any and all matters of record in the Real Property Records of Lubbock County, Texas,
but only to the extent such matters are valid, existing and, in fact, affect the Leased
Premises on the date of this Lease Agreement.
Parking Facilities Lease Agreement - Exhibit "B" - Page 1
9/10/2007 5:34 PM
Resolution No. 2007—RO438
MEMORANDUM OF LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF LUBBOCK
THIS MEMORANDUM OF LEASE AGREEMENT ("Memorandum") is entered into as
of the J 1'4day of $ 2007, by and between the CITY OF LUBBOCK, a
municipal corporation of Lubbock County, Texas ("Lessee" ), and 1859 MANAGEMENT
PARTNERS, LP, a Texas limited partnership ("Lessor"), sometimes collectively referred to
herein as the "Parties" or singularly as a "Fifty'.
RECITALS
A. Lessor and Lessee have entered into a Lease Agreement (the "Lease") pertaining
to the Leased Premises (as defined in the Lease) which includes the land described on Exhibit A
attached hereto and made a part hereof for all purposes (the "Land").
B. Lessor and Lessee desire to enter into and record this Memorandum in the public
records of Lubbock County, Texas, to put all third parties on notice of the Lease and Lessee's
rights thereunder in and to the Leased Premises.
AGREEMENT
1. The Lease. Upon and subject to the terms and provisions set forth in the Lease,
Lessor has leased, demised and let unto Lessee, and Lessee has taken and leased from Lessor, the
Leased Premises. Lessee has certain rights and interests in the Leased Premises under the Lease.
2. Term. The Term of the Lease is for a period commencing on the date first above
written and ending on the 40th anniversary of the commencement date of the Sublease (defined
in the Lease), unless sooner terminated or extended according to the terms and provisions of the
Lease.
3. Incorporation of Lease. The terms, conditions and provisions of the Lease are
incorporated herein by reference for all purposes. Any inconsistencies between this
Memorandum and the Lease are governed by the Lease and not by this Memorandum. This
Memorandum in no way modifies or amends the Lease.
Executed as of the day and year first above written.
ATTEST:
Rebe6ca Garza, City Secretaz
APPROVED AS TO CONTENT:
Rob -s-s-1sT9t City Manager,
Development Services
STATE OF TEXAS
COUNTY O VPS 0 vl §
LESSOR:
1859 MANAGEMENT PARTNERS, LP,
a Texas limited partnership
By: 1859 Management Partners GP, LLC,
General Partner
in
Title:
LESSEE:
CITY OF LUBBOC C, EXAS
David A"iller, Mayor
�This ent was acknowledged before me on the day o �,Onl6 , 2007,
by L r\ lJi Ck cLv% c of 1859 Management Partners GP, LLC,
general partner of 1859 MANAGEMENT PARTNERS, LP, a Texas limited partnership, on
behalf of said limited partnership.
mnnLIFFORDte of Texasn Expires08
Notary Public in and fo the State Texas
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on the /7 day of ' ie„ -,be!' 2007,
by David A. Miller, Mayor CITY OF LUBBOCK, TEXAS, a political subdivision of the State
of Texas, located in Lubbock County, Texas, on behalf of said city.
WEBS NotariTrublic in and for the State of Texas
NoIn po 4 Stole dum
N'y � EVh$ ObOi4mo