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HomeMy WebLinkAboutResolution - 2022-R0052 - Lease Agreement with Lubbock Moonlight MusicalsResolution No. 2022-R0052 Item No. 7.27 January 25, 2022 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Lease Agreement by and between the City of Lubbock and Lubbock Moonlight Musicals Inc. regarding the Amphitheatre at Mackenzie Park, and related documents. Said Lease is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on January 25, 2022 DANIEL M. POPE, MAYOR ATTEST: Re ecca Garza, City Se et ry APPROVED AS TO CONTENT: Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: R n oke, Assistant City Attorney RES.Lease-LMMI Amphitheatre 1.5.22 Resolution No. 2022-R0052 LEASE AGREEMENT LUBBOCK MOONLIGHT MUSICALS AMPHITHEATRE THE STATE OF TEXAS § COUNTY OF LUBBOCK § This Lease Agreement ("Agreement") is made and entered into this 25th day of January , in the City of Lubbock, Lubbock County, Texas, by and between the City of Lubbock, a municipal corporation of the State of Texas, ("City") and Lubbock Moonlight Musicals Inc., ("LMMI"), a State of Texas nonprofit organization. Whereas, it is a public purpose of the City to operate the City's Lubbock Moonlight Musicals Amphitheatre ("Amphitheatre") and to have regularly scheduled events therein for the public; and Whereas, in consideration of the $1,500,000 of improvements made to date to the Amphitheatre, and continued and future improvements that will be made by Lubbock Moonlight Musicals Inc.; and, Whereas, LMMI desires the use of the Amphitheatre to conduct theatrical productions and rehearsals at the Amphitheatre, which events will provide an economic development benefit by attracting visitors to the City and the surrounding area; and now therefore, THE PARTIES AGREE AS FOLLOWS: 1. PREMISE. That upon the terms and conditions herein, and in consideration of the covenants and agreements herein and of the faithful performance by LMMI of all such covenants and agreements, the City does hereby grant unto LMMI the right to use and occupy the Amphitheatre for the purpose of theatrical productions, educational camps, and rehearsals and for no other purpose without the written consent of the City. The use of the Amphitheatre shall be deemed to include use of associated available dressing rooms, ticket booth, and storage area above the dressing room storage areas will be available to LMMI on an "as available basis" as determined by the Director of the Lubbock Civic Center ("Director"). This is a non-exclusive agreement and is subject to the Event Services Manual hereto attached as Exhibit A. 2. TERM. The term of this Agreement shall be for a period beginning upon final execution of this Agreement, and ending November 30, 2026 ("Term"). The Term shall consist of five (5) periods beginning February 1st and running through November 30th of each year during the Term of this Agreement ("Season"). 3. RENT. a. LMMI hereby covenants and agrees to pay to City for the use of the Amphitheatre, on or before the first day of each Season during the Term of this Agreement, without demand at its office in the Lubbock Civic Center, according to the following payment schedule: Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 Season Fee 2022 $ 7,500.00 2023 8,000.00 2024 8,500.00 2025 9,000.00 2026 9,500.00 b. LMMI further agrees to pay to City on demand any and all sums which may be due to City for additional services. LMMI understands and agrees that City has the right and privilege to alter rates for services, per its discretion and established policy. City and LMMI acknowledge and agree that TIME IS OF THE ESSENCE with respect to the payment schedule and any and all sums which may be due to City for additional services. 4. BUILDING AVAILABILITY. a. This agreement does not limit or prevent the City from scheduling, promoting, or producing any event in the facility at any time that does not conflict with the terms of this agreement. b. Because LMMI is the resident tenant during the summer months and has items of great value and for liability reasons, LMMI shall have uninterrupted and exclusive use of the facility, absent a declared emergency by the City, for each Season during the Term of this Agreement. However, from July 1st through noon on July 51h of each Season during the Term of this Agreement the Amphitheatre will not be available for use by LMMI. No performances or other events will be held during the South Plains Fair (generally a nine day period the last week of September). 5. EVENT REQUIREMENTS. LMMI shall file with the Director's office upon signing this Agreement, a full and detailed outline of all dates the Amphitheatre will be utilized for rehearsals, camps, and performances and all other information as may be required by the Director concerning LMMI'S activities. 6. SCHEDULE DATES. A minimum of eighteen (18) performances shall be scheduled during each Season during the Term of this Agreement. Existing holds for events scheduled prior to the effective date of this Agreement will not be released by the City. 7. MAINTAINENCE AND ACTIVITY SCHEDULE. a. An Activity schedule will be made available to the Director prior to each season. It will be coordinated with one representative from LMMI. b. An activity schedule shall be submitted to the Director on a monthly basis. All changes to dates and/or times shall be provided to the Director with as much advance notice as possible, but weekly at minimum. 8. SPECIAL PROGRAMS. Subject to prior written approval of the Director, LMMI may engage in a special program, if in the Director's judgment, such program will be mutually beneficial to the parties of this Agreement and may significantly increase gross ticket sales, total attendance, or be Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 advantageous for advertising, goodwill, or publicity. Written notification as to the details of any special program shall be submitted to the Director at least ten (10) business days prior to the promotion. Any and all costs associated with presenting the programs shall be at LMMI'S expense. 9. PERFORMANCE DAY ACTIVITIES. To assure proper sequencing of activities on performance days, LMMI shall present a performance day schedule forty-eight (48) hours in advance of the performance starting time to assist in providing optimum operational services required under this Agreement. The stage will be cleared of cast by midnight with the exception of the final night of each production when the set is changed. Vector control will be notified not to spray prior to midnight on any production or rehearsal night. 10. QUIET ENJOYMENT. a. City shall permit LMMI peaceable and quiet enjoyment and use of the Amphitheatre for the purpose and Term of this Agreement, including restroom conveniences customarily open to the general public. b. The Amphitheatre's halls, ramps, surrounding premises, sidewalks, and entrances shall neither be obstructed by LMMI nor used for any other purposes than ingress or egress. LMMI shall not permit any chairs, movable seats or other obstructions to be or remain in the passageways, and will keep such passageways clear at all times. 11. CONTROL OF PREMISES. The City, acting through the Director, police officers, fire fighters, and other designated representatives, shall have the right at any time to enter any portion of the Amphitheatre for any purpose whatsoever. The Amphitheatre, and any related property or facility, shall at all times be under the charge and control of the Director. 12. ASSIGNMENT. LMMI shall not assign this Agreement, or any part thereof, nor allow or permit any use of said Amphitheatre other than herein specified without the prior written consent of the City. For the purposes of this Agreement, assignment shall mean assumption of the assets of LMMI by any person, association or entity by any means. 13. DELAY IN DELIVERY OF POSSESSION. If the City is unable to deliver possession of the Amphitheatre, by the date specified for the commencement of any Season during the Term of this Agreement or for any option period, as a result of causes beyond City's reasonable control, City shall not be liable for any damage experienced by LMMI for the City's failure to deliver possession. This Agreement shall not be void or voidable for any such delay. The Term of this Agreement shall not be extended by any such delay. 14. FAILURE TO TAKE POSSESSION. If LMMI, being entitled to possession hereunder, shall fail for any reason to take possession of or use the Amphitheatre, without the prior written consent of City, no rent refund shall be made to LMMI by the City, and any payment made to City shall be taken by City as liquidated damages and not as a penalty. The full rent called for by this Agreement, including any disbursements or expenses incurred by City in connection herewith, shall be payable by LMMI to the City. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 3 15. LOCKS; KEYS. No additional locks or bolts of any kind shall be placed on any of the doors or windows by LMMI. LMMI shall, on the termination of LMMI's tenancy, deliver to City all keys to any space within the Amphitheatre. In the event of the loss of any keys furnished to LMMI by City, LMMI shall pay to City the cost of the keys. The City shall retain a key to all spaces at the Amphitheatre for emergency and maintenance purposes. 16. OPENING HOURS. LMMI must open the doors for activities and performances as scheduled unless otherwise agreed upon as necessity indicates. LMMI shall open the doors to the Amphitheatre at least one hour prior to any activity or performance. 17. CONDUCT OF PERFORMERS. Conduct of performers should not be such as to deliberately incite or entice patrons to leave their seats, or tend to create hazardous, uncontrollable crowd situations. Conduct of performers should not be such as to cause deliberate damage to the facility or injury to others. 18. EQUIPMENT ENTRANCE. All articles, equipment, fixtures, materials, etc., of LMMI shall be brought into or out of the Amphitheatre and surrounding premises only at such entrances that are designated by the Director. 19. TICKETING. a. The City has a contract with Civic Lubbock Inc.'s Select -a -Seat to conduct the sale of tickets to all events taking place in the Venues. Terms of such use will be outlined in a separate box office agreement with Civic Lubbock, Inc., which will be executed prior to the beginning of each Season during the Term of this Agreement. b. Ticket prices will be set by LMMI at the beginning of each Season during the Term of this Agreement. Ticket prices may be changed during a season for special promotional events and/or to accommodate special group events. Written notification of ticket prices shall be given to the Director prior to such tickets going on sale. 20. SEATING. Seating capacity for the Amphitheatre shall be nine hundred (900) seats. The City will not provide any additional chairs, movable chairs, benches, or any other type of seating device for the purpose of this Agreement. No additional seating may be added without prior approval of the Director and the Fire Marshall. LMMI shall not sell or distribute or permit to be sold or distributed tickets or passes in excess of seating capacity of the Amphitheatre. 21. SMOKING NOTICE. In accordance with Federal, State, and City laws governing smoking in public places, LMMI shall take reasonable and prudent care that its patrons, performers, and other employees are informed of the NO SMOKING rule. Smoking in any interior portion of the Amphitheatre, including, but not limited to seating areas, public restrooms, and dressing rooms, will not be permitted. LMMI's security personnel and ushers shall be responsible for monitoring these areas. 22. TELEVISION/RADIO. All broadcast rights for LMMI's performances are granted to LMMI. Any costs associated with the production of such broadcasts shall be paid by LMMI. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 4 23. STANDARD PERFORMANCE DAY SET-UP. City and LMMI will cooperate and share responsibility for activities in connection with the standard performance set-up in the Amphitheatre. LMMI shall provide reasonable assistance in the set-up as may be requested by City. 24. INTERRUPTION OR TERMINATION OF PERFORMANCE. City retains the right to cause the interruption or termination of any performance when such interruption or termination is, in the City's sole judgment, in the interest of public safety. 25. DRESSING ROOMS. At no additional cost to LMMI, LMMI shall have access to the Amphitheatre's dressing rooms for scheduled performances, rehearsals, and other activities described in this Agreement. At the end of each Season during the Term of this Agreement, LMMI will be required to remove all items from the Amphitheatre. At the Director's discretion LMMI may store items in the area above the dressing room, at their own risk. LMMI's access to this storage area will be allowed throughout the year at the Directors discretion. City is not responsible for any LMMI property. 26. PHYSICAL ALTERATION/SIGNAGE. a. Except as may be agreed to in advance in writing by the parties to this Agreement, LMMI will not cause or permit: anything which will damage or change the finish or appearance of the Amphitheatre or the furnishings and equipment thereof. LMMI will preserve the integrity of the structure of the Amphitheatre. Any permanent alterations will be agreed on with Director before commencing. LMMI shall pay the cost of repairing any and all injury and damage which may be done to the Amphitheatre or any of the fixtures, furniture, or furnishings thereof by any act of LMMI, LMMI's employees, LMMI's agents, LMMI's patrons, or anyone visiting the Amphitheatre upon the invitation of LMMI. It is expressly agreed that the Director and the City's Risk Management Coordinator shall determine whether any such damage has been done, the amount thereof, the reasonable cost of repairing the same, and whether it is one for which, under the terms of this Agreement, LMMI is to be held responsible. The decision of the Director and City's Risk Management Coordinator shall be final and binding upon LMMI 27. SIGNAGE. a. Signs, Posters, Literature, and Decorations: Posters and/or signs may only be posted on bulletin boards provided for such use within the Facility. All such advertisements must relate to the event to be held on the premises. The hanging of pictures, banners, or other items must have the approval of the Director. b. Distribution: The Lessee shall not distribute, circulate, or allow circulation of any advertising matter or programs at the entrance to any part of the premises that does not completely pertain to the immediate attraction. No advertising matter shall be distributed or circulated on parking facilities or walkways adjacent to the facility. C. Approval: In order to abide by the sign ordinance in effect within the City of Lubbock, approval by the Director will be required prior to any signsibanners of any type being placed on Amphitheatre property outside of the building. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 5 d. Content of Signage: All signage shall be in good taste, professionally developed, and presented so as to be inoffensive to the general public and of such high caliber as to contribute to the establishment of the Amphitheatre facilities as a prestigious location for commercial advertising media. LMMI will promptly remove or modify the presentation of any advertising or signage if so directed by the Director if deemed to be in violation of this clause. 28. CONCESSION SALES. The City has a contract with Civic Lubbock Inc. to conduct the concession sales all events taking place in the Venues. This includes the sole right to sell or dispense soft drinks, candies, food, alcoholic beverages, and related merchandise commonly sold or dispensed in the Amphitheatre. 29. UTILITIES AND SERVICES. a. During the Term of this Agreement, City shall furnish, at City's expense, heat, water, lights, air conditioning, and custodial services deemed necessary by the Director for LMMI's use of the Amphitheatre. City shall not be responsible for or liable to LMMI for any loss resulting from any lack of heat, water, lights, air conditioning, or custodial services due to an act of God or the failure of equipment to operate or function properly through no fault or act of City. All utilities will be furnished from present openings in the Amphitheatre. No petroleum products, oil lights, or any other artificial lighting, light plants, or electrical equipment shall be permitted. b. City agrees to provide janitorial and maintenance services for the Amphitheatre and agrees to keep and maintain all areas of the Amphitheatre in a reasonably good and tenantable condition and appearance, through the prompt removal of all trash, litter, and other debris. The City shall maintain its working standard for janitorial and maintenance services for the Amphitheatre as performed by the City prior to this Agreement. C. LMMI shall provide for its own telephone, cable, Wi-Fi, or any similar service, including any connection fees that LMMI may require, for its performances or any other LMMI-related events. 30. PARKING LOTS. Under the supervision and control of the Director, City reserves the right to maintain and operate the Amphitheatre parking lots located within the area. Pending no unforeseen changes to any existing agreement, areas will be maintained as per the appropriate schedule for contracted maintenance through the Parks department. 31. PERSONNEL. At its own cost, LMMI shall arrange for and provide the following personnel for each performance and for any special program: a. Box office staff, ticket takers, door guards, and ushers in numbers approved by the Director to assure safety and control of patrons attending the performance; b. Approved Security Personnel in numbers sufficient to control the seating area, and control access/egress points. The actual number of security personnel may increase or decrease depending on anticipated crowd size or a developing pattern of crowd management problems at the Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 discretion of the Director. All security personnel shall be on duty until the Amphitheatre is cleared of the general public; C. Sound and stage technicians as required to operate any Amphitheatre sound or lighting systems; d. For special programs, LMMI may be required to provide additional security, ushers, door guards, and other personnel necessary in numbers approved by the Director to assure safety and control of the public attending the functions; e. LMMI shall hire and pay for any medical equipment, services, and attendants that it deems necessary, including, but not limited to, physicians, physician assistants, trainers, paramedics, emergency medical technicians, and ambulance attendants during the performance and other special programs scheduled by LMMI; f. City reserves the right at all times to control the ushers, doormen, ticket takers, grounds, security personnel, and all other employees of LMMI. City shall have the right to remove from the Amphitheatre any and all such employees of LMMI. City reserves the right, with its officers and agents, including its police officers, to eject any objectionable person or persons from the building and surrounding premises. In the event of the exercise of this authority, LMMI hereby waives any and all claims for damages or contribution against the City and its officers and employees on account thereof; and g. LMMI shall hire and pay for personnel to oversee all other activities planned and/or scheduled by LMMI in the Amphitheatre. LMMI's personnel shall insure that participants remain in the proper areas and that the facility is properly secured upon leaving, i.e., lights turned off, doors and gates locked, and secured. 32. INDEMNITY AND INSURANCE. a. As a material part of the consideration to be rendered to City under this Agreement, and to the fullest extent allowed under any applicable law, LMMI hereby covenants and agrees to hold City harmless and relieve and discharge City, its officers and employees, from any and all liability for loss, injury, or death to any person or persons, or loss or damage to property occasioned by or sustained by reason of the occupancy or use of the Amphitheatre and the facilities thereof without regard to the cause of such loss or whether the loss was caused in whole or in part by the negligence of the City, its officers, and employees. b. LMMI hereby covenants and agrees to pay for any and all damage to the Amphitheatre, damage to or loss of any of the property or equipment of the Amphitheatre, or to any other City property resulting, either directly or indirectly, from such occupancy or use of the Amphitheatre by or through the negligence or other acts of LMMI, its agents, employees or any person or persons participating in or attending the performances in connection with or during said use and occupancy. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 C. City shall not be liable to LMMI for any damage by or from any act or negligence of any other occupant of the Amphitheatre. LMMI agrees to pay for all damages to the Amphitheatre and any related property or facilities, as well as all injury to other occupants of the Amphitheatre and any damage to their property, directly or indirectly caused by LMMI'S misuse or neglect of the Amphitheatre, its apparatus, or appurtenances. d. LMMI shall secure at its own expense and provide City with evidence that it meets the insurance requirements as outlined in the Event Services Manual, which is attached and is a part of this Agreement. City shall be named as a named insured on a primary and non-contributory basis in said policy of insurance. e. LMMI shall procure Worker's Compensation Insurance protecting the agents and employees of LMMI or any subcontractor. All Workers' Compensation coverage shall include a waiver of subrogation in favor of City. 33. DAMAGE OR DESTRUCTION. a. In case the Amphitheatre, in its entirety or any part thereof, should be destroyed or damaged in any way by fire or any other cause, of if any other casualty or unforeseen occurrence shall render fulfillment of this Agreement by City impossible, then the Term of this Agreement shall end and LMMI shall be liable for partial rent only up to the time of such termination and LMMI hereby waives and releases the City from any claim for damages or compensation on account of such termination. b. In the event that the Amphitheatre should be partially damaged by fire, or other cause, but only to such an extent that it can be rebuilt or repaired within ninety (90) days after the date of such destruction, the Agreement shall be void or voidable, but not terminated except as otherwise provided herein. If the City intends to rebuild or repair the Amphitheatre, it shall, within thirty (30) days after the date of such damage, give written notice to LMMI of the intention to rebuild or repair and shall proceed with reasonable diligence to restore the Amphitheatre to substantially the same condition in which it was immediately prior to the destruction. However, City shall not be required to rebuild, repair, or replace any improvements or alterations made by tenant within the Amphitheatre. During the period of rebuilding or repairing, there shall be no diminution of rent. If, after rebuilding or repairing has commenced, such rebuilding or repairing cannot be completed within ninety (90) days after the date of such partial destruction, the City may either terminate the Agreement or continue with the Agreement with a proportional rent rebate to LMMI. If City undertakes to rebuild or repair, LMMI shall, at its own expense, restore all work required to be done by LMMI under this Agreement. 34. EXPIRATION OF AGREEMENT. a. At the expiration of this Agreement and in accordance with all applicable provisions of this Agreement, LMMI shall quit its use of the Amphitheatre and return to the City all equipment and facilities procured in as good condition and repair as when acquired, except for normal wear and tear. If LMMI has constructed any temporary alterations or temporary additions to the Amphitheatre, to the extent required by the City, all temporary alterations and temporary additions made by LMMI shall be removed, at the sole cost of the LMMI, and the Amphitheatre shall be restored to the condition when the Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 8 Agreement began. LMMI's obligations under this paragraph shall survive the expiration or other termination of the Agreement. b. City reserves the right, after the expiration of the Term of this Agreement, to remove from the Amphitheatre all effects remaining therein and to store the same wherever it sees fit in its name, or at its option, in the name of LMMI, but at the cost, expense, and risk of LMMI, and City shall not be liable in any way to LMMI on account of so removing and storing any such effects. For such additional period beyond the Term of this Agreement, if any effects of LMMI may so remain in the Amphitheatre, City shall be entitled to charge LMMI a reasonable fee for storage. 35. LICENSES AND LAWS. a. Throughout the Term of this Agreement, LMMI shall comply with all laws of the United States, and the State of Texas, all ordinances of the City, and all rules and requirements of the Police and Fire Departments, or other municipal authorities of the City, and will obtain and pay for all necessary permits, and licenses, and will not do, nor suffer to be done, anything on the Amphitheatre in violation of any such laws, ordinances, rules or requirements. If the attention of LMMI is called to any such violation on the part of LMMI, any person employed by LMMI, or admitted to the Amphitheatre by LMMI, then LMMI will immediately desist from and correct such violations. b. LMMI shall comply with the Federal Copyright Act of 1976, as amended, and assure that all copyrighted music played or caused to be played during the Term of this Agreement is played with the permission of the copyright owner. LMMI agrees to pay all the obligations under the copyright license, and to the fullest extent allowed under any applicable law, will hold harmless and indemnify the City and its employees from any such claims or obligations. C. Any violation of such laws and ordinances by LMMI shall, at the Director's sole discretion, subject LMMI to immediate expulsion from the Amphitheatre and the forfeiture of all paid rents, percentages, or other fees, and in no way will such expulsion release LMMI from its obligation to pay any unpaid rent, percentages, or other fees required during the Term of this Agreement. 36. POSTPONED DELIVERY. In the event that City reasonably postpones delivery of the Amphitheatre on the above described times and/or dates for any reason, such event shall not be considered an event of default hereunder, and the City shall not be subject to any liability, nor shall the validity of this Agreement be affected, nor the Term extended in such event. If the City unreasonably postpones tender of possession of the Amphitheatre to LMMI, LMMI may terminate this Agreement by providing written notice to the City at least ten (10) business days prior to such termination. 37. CONDITION OF PREMISES. LMMI has determined that the Amphitheatre, as presently constituted, is sufficient for the use contemplated by LMMI. LMMI's taking possession of the Amphitheatre is conclusive evidence that the Amphitheatre, including without limitation, the equipment, fixtures, furnishings, and the buildings comprising the Amphitheatre, is clean, sanitary, and in good order and condition at the time of possession by LMMI. LMMI shall, throughout the Term, maintain the Amphitheatre and furnishings in good, clean, and sanitary order and condition. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 38. CANCELLATION. During the Term of this Agreement, LMMI may cancel this Agreement by providing written notice of cancellation to City at least thirty (30) days prior to LMMI's expected date of cancellation. In the event LMMI cancels this Agreement, the parties hereby agree that all monies paid by LMMI any time prior to the date of cancellation are presumed to be liquidated damages and such monies shall become the property of the City and shall not be refunded. Any installed permanent equipment, modifications, and or improvements to the Amphitheatre, if not removed within 30 days after the cancellation of the agreement, shall become the property of the City. 39. DEFAULTS AND TERMINATION. a. In the event LMMI shall fail to keep, perform, or respect the terms, covenants, and conditions of this Agreement, and within ten (10) days after receipt of written notice of such failure by LMMI, LMMI shall not have cured or corrected such failure or is not diligently taking action to cure or correct such failure, LMMI shall be considered to be an event of default of this Agreement. Notwithstanding the above, LMMI shall be in default of this Agreement if LMMI fails to timely follow the payment schedule provided for herein, without the necessity of the City giving LMMI written notice of failure as herein above provided. b. Upon the occurrence of any one or more event(s) of default, LMMI's right to possession of the Amphitheatre shall terminate, and LMMI shall surrender possession thereof to City immediately. In such event, LMMI hereby grants to City full and free license to enter into and upon Amphitheatre, or any part thereof, to take possession thereof with process of law, and to expel and remove LMMI therefrom, or any person who may be occupying the Amphitheatre, or any part thereof, and City may repossess the Amphitheatre as of its former estate. In addition to terminating this Agreement, City may sue for and recover all damages directly or indirectly caused by such event of default. City may, if it so elects, pursue any other remedy or remedies provided by law for the breach of this Agreement or any of its terms, covenants, conditions or stipulations. No right of entry or remedy herein conferred upon or reserved by City is intended to be exclusive of any other right or remedy. C. City's acceptance of rent following an event of default hereunder shall not be construed as City's waiver of such event of default. No waiver by City of any violation or breach of any of the terms or provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or default. The loss or damage that City may suffer by reason of LMMI's default shall include the reasonable expense of repossession and any reasonable repairs or remodeling undertaken by City following repossession. d. LMMI covenants that if LMMI shall make an assignment for the benefit of creditors, or if a petition shall be filed to have it adjudicated as bankrupt, whether voluntary or involuntary, or if an execution is issued against LMMI and it shall fail to procure a stay thereof within thirty (30) days after the entry of same or otherwise fail to satisfy a judgment against it, then and in such event this Agreement, at the option of the City shall cease and terminate. In the event of such termination, the entire unpaid portion of the payment schedule as set forth in this Agreement shall thereupon immediately become due and payable. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 �o 40. STORAGE. City assumes no responsibility whatsoever for any property placed in or on said Amphitheatre, and said City is hereby expressly released and discharged from any and all liabilities for any loss, injury or damages to person or property that may be sustained by reason of the occupancy of said Amphitheatre under this Agreement. 41. THIRD PARTY AGREEMENTS. City shall not be responsible in any way for any third - party agreements entered into by LMMI for supplies, services or any other items, whether in writing or verbal. LMMI shall be solely responsible for all such agreements and any payments due thereon. 42. INDEPENDENT CONTRACTOR. LMMI, in the performance of its functions, duties, and obligations herein, shall at all times be and act as an independent contractor. Nothing in this Agreement shall be construed as creating a partnership or joint venture between the parties hereto, or as constituting LMMI as an agent or employee of City in any manner whatsoever, nor shall any part of this Agreement be construed as giving LMMI any authority whatsoever to bind City in any manner whatsoever. LMMI hereby agrees and covenants that City shall not be liable for any salaries or sums of money due employees of LMMI nor for any expense incurred by LMMI, nor for any debt contracted by LMMI. 43. NON-DISCRIMINATION. LMMI agrees that in conducting its operation hereunder it will not discriminate against any employee, applicant for employment, customer or patron due to age, sex, race, color, handicap, sexual orientation, religion or national origin. 44. AMERICANS WITH DISABILITIES ACT. LMMI agrees that it will comply with all applicable requirements of the Americans with Disabilities Act of 1990, 42 U.S.C. S 12101, et. seq. 45. FIRE HAZARDS. LMMI shall not bring or permit anyone to bring into said building or surrounding premises or keep therein anything that generates any hazardous materials or wastes, or causes a fire hazard. 46. HAZARDOUS MATERIALS. If LMMI uses, stores, or generates any hazardous materials or wastes, LMMI will obey all Federal, State, and Local laws governing such materials. In the event that hazardous materials are discharged on City property, LMMI will be responsible for all costs and activities related to proper clean-up, and will provide the Director with proper documentation evidencing that a complete clean-up has occurred. LMMI shall be responsible for all liabilities related to the use, storage, disposal, and clean-up of all hazardous materials at the Amphitheatre. 47. ATTORNEY'S FEES. If any party to this Agreement should commence legal proceedings to enforce the terms and conditions of this Agreement, the prevailing party will be entitled to reimbursement of all such legal fees and cost incurred, including the legal fees and costs incurred in any appellate proceeding. 48. EXTENT OF AGREEMENT. This Agreement represents the entire and integrated Agreement between the parties hereto and supersedes all prior negotiations, representations or agreements either written or oral, and this Agreement may be amended only by written instrument signed by both parties. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 49. PROHIBITION AGAINST NUISANCE OR UNLAWFUL USE. LMMI shall not create or allow any nuisance to exist on the PREMISES, or use or allow the Amphitheatre to be used for any unlawful purpose. 50. CONSENTS. City and LMMI agree that whenever in this Agreement their consent is required to be obtained such consent will not be unreasonably withheld or delayed. 51. LEGAL CONSTRUCTION. If any clause or provision of this Agreement is illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, or any extension thereof, then it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision of this Agreement that is illegal, invalid or enforceable, there be added as a part of this Agreement a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid or enforceable. 52. PARTIES BOUND. Each and every provision of this Agreement shall bind and shall inure to the benefit of the parties to the Agreement and their legal representatives. 53. NOTICES. Any notice required hereunder shall be in writing and shall be deemed received by the party to be notified whenever a letter containing such notice is deposited with the United States Postal Service, certified mail, return receipt requested, with proper postage affixed thereto and addressed to the party to be notified in the following manner: CITY: Director — Lubbock Civic Center 1501 Mac Davis Lane Lubbock, Texas 79401 (806) 775-2236 LMMI: Frank Rendon Director of Ops P.O. Box 93522 Lubbock, Texas79493 (214) 454-2089 Frank@moonlightmusicals.com Dimitri Pappas President — LMMI 3707 67th St Lubbock, TX 79413 (806) 392-2024 DPappas@mac.com 54. CAPTIONS. The captions contained in this Agreement are for convenience of reference only, and shall in no way limit or enlarge the terms and conditions of this Agreement. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 1.2 55. EXHIBITS AND ATTACHMENTS. All exhibits referred to in this Agreement are incorporated into this Agreement and made a part hereof for all intents and purposes. 56. CHOICE OF LAW. The laws of the State of Texas shall govern the formation, operation, construction, and enforcement of this Agreement. 57. AUTHORITY TO BIND. City represents and warrants that this Agreement has been approved by the City Council of Lubbock, Texas and constitutes a legal, valid, and binding obligation of the City. It is understood and acknowledged by City and LMMI that any extensions of this Agreement as provided for above, are subject to the approval of the City Council of Lubbock, Texas. LMMI represents and warrants to the City that the individual executing this Agreement has the full lawful right, power, and authority to execute this document on behalf of LMMI and that this Agreement constitutes a legal, valid, and binding obligation of LMMI. 58. NON -ARBITRATION. City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 13 IN WITNESS WHEREOF, we have hereunto set our hands as date first above written. City of Lubbock: Daniel M. Pope, Mayor ATTEST: ,DJA�-O' )1C Reb ecca Garza, City Sec eta APPROVED AS TO CONTENT: 14 1 Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Rya Br ke, Assistant City Attorney Lubbock Moonlight Musicals, Inc.: i Pappas, President Lubbock Moonlight Musicals, Inc. Lease Agreement - 2022 14