HomeMy WebLinkAboutResolution - 2018-R0051 - LEPAA Shared Parking Lease And Commitment Agreement - 01/25/2018Resolution No. 2018-R0051
Item No. 6.41
January 25, 2018
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 Commitment Agreement and a Shared Parking
Lease Agreement by and between the City of Lubbock and the Lubbock Entertainment and
Performing Arts Association (LEPAA) in order to provide certain requirements for LEPAA
to satisfy before the City of Lubbock will transfer real property to LEPAA for the public
purpose of the construction and operation of a parking area adjacent to the Buddy Holly Hall
of Performing Arts and Sciences. Said Commitment Agreement and Shared Parking Lease
Agreement are attached hereto and incorporated in this resolution as if fully set forth herein;
shall supersede and replace all prior agreements relating to the transfer of the property
associated with the attached Commitment Agreement; and, shall be included in the minutes
of the City Council.
Passed by the City Council on January 25, 2018
ATTEST:
DANIEL M. POPE, MAYOR
9), �" 'ec' Ad ) -,
Reb cca Garza, City Secretary
APPROVED AS TO C
�m
Scott Snider, Assistant City Manager
APPROVED AS TO FORM:
City
greement — Lubbock Entertainment and Performing Arts Association — Parking Area Agreements
18
Resolution No. 2018-R0051
SHARED PARKING LEASE AGREEMENT
THIS SHARED PARKING LEASE AGREEMENT (the "Agreement") is made by and
between the City of Lubbock, Texas, a State of Texas home rule municipal corporation (the "City")
and the Lubbock Entertainment and Performing Arts Association, a State of Texas nonprofit
organization ("LEPAA"), (each a "Party;" and collectively, the "Parties"), acting by and through
their respective and duly authorized officers and officials, and is hereby entered into by the Parties
on, Janus, 95, 1018 (the "Effective Date").
THE PARTIES, FOR GOOD AND VALUABLE CONSIDERATION, AGREE AS FOLLOWS:
Article 1. The LEPAA Parking Area. Subject to the terms hereof, LEPAA authorizes the joint
use by the Parties of the parking area that will be constructed and maintained by LEPAA on
approximately four and a half (4.5) acres of land generally located on the easternmost portion of
the area bordered by 4 h Street and Marsha Sharp Freeway on the north, Avenue O on the west,
Mac Davis Lane on the south, and the Buddy Holly Hall of Performing Arts and Sciences (the
"Performing Arts Center") on the east (the "LEPAA Parking Area"). The Parties' joint use of the
LEPAA Parking Area shall be at no cost to the Parties, shall be non -preferential, and shall be for
the sole purpose of public parking during either of the Parties' events near the LEPAA Parking
Area. However, through its ticketing system or procedure, LEPAA may charge LEPAA patrons
for parking in the LEPAA Parking Area for events held at the Performing Arts Center. The LEPAA
Parking Area is more specifically described and depicted in "Exhibit 1" of this Agreement.
Article 2. The City Parking Area. Subject to the terms hereof, the City authorizes the joint use
by the Parties of the parking lot located at the Lubbock Memorial Civic Center (the "City Parking
Area"). The Parties' joint use of the City Parking Area shall be at no cost to the Parties, shall be
non -preferential, and shall be for the sole purpose of public parking during either of the Parties'
events near the City Parking Area. The City Parking Area does not include any existing or future
City -owned parking lot located off the Lubbock Memorial Civic Center property. The City Parking
Area is more specifically described and depicted in "Exhibit 2" of this Agreement.
Article 3. The Term. This Agreement shall become binding on the Effective Date and shall
remain in effect through December 31, 2068 (the "Term"). The City reserves the right to extend
the Term for two (2) additional ten (10) year periods (the "Extension Periods"), and LEPAA shall
not prevent such extension. The City and LEPAA may extend the Term beyond the Extension
Periods through a supplemental agreement signed by the Parties.
Article 4. Ouarterly Event Coordination. Each Party will provide a quarterly update to the other
Party that lists the Party's planned events that might affect the Parties' joint use of the LEPAA
Parking Area and the City Parking Area. The quarterly updates shall be provided by each Party no
later than January 10, April 10, July 10, and October 10 of each year, with each update detailing
the planned and expected events that will occur prior to the next quarterly update. Based upon the
quarterly update, the Parties shall develop a quarterly plan for the joint use of both the LEPAA
Parking Area and the City Parking Area. If a Party should schedule an event not included in its
quarterly plan, then that Party shall immediately inform the other Party in order to ensure the joint
use of the LEPAA Parking Area and the City Parking Area. The Parties may adopt an updated plan
other than the quarterly plan considered in this Article upon approval by the City Manager. The
shared Parking Lease Agreement — City of Lubbock & LEPAA-2018 Page 1
intent of the quarterly plan is for each Party to have priority in their own parking area for that
Party's events. If both Parties are holding events at the same time, the quarterly plan will address
how to provide adequate parking for each event.
Article 5. Parkin2 Area Maintenance. The City will maintain the City Parking Area at its own
expense. LEPAA will maintain the LEPAA Parking Area at its own expense according to the terms
of the Commitment Agreement between the City and LEPAA, with such Commitment Agreement
being made a part of this Agreement by reference. The City will not create or allow to be created
any waste or nuisance on the LEPAA Parking Area caused by the City's use of the LEPAA Parking
Area. LEPAA will not create or allow to be created any waste or nuisance on the City Parking
Area caused by LEPAA's use of the City Parking Area.
Article 6. Future City Improvements. Nothing in this Agreement shall prevent the City from
improving any land or property owned by the City at the time of, or subsequent to the Effective
Date of, this Agreement. If the City should so improve any of its property, and should such
improvement interfere with LEPAA's joint use of the City Parking Area, then this Agreement shall
not terminate and the Parties' joint use of the LEPAA Parking Area shall continue without
interruption. However, if the City should improve its property as contemplated under this Article,
and should such improvement affect the availability of the parking at the City Parking Area, then
this Agreement shall be immediately suspended and shall not become reactivated until such time
as the City has amended this Agreement through a resolution passed by the City Council of the
City. Any suspension of this Agreement under this Article shall neither extend nor otherwise have
any effect on the Term of this Agreement.
Article 7. Future LEPAA Improvements. Nothing in this Agreement shall prevent LEPAA from
improving the LEPAA Parking Area so long as such improvements do not create a net loss in
parking spaces in the LEPAA Parking Area, unless such loss in parking spaces is temporary and
City approved. The LEPAA Parking Area shall conform to the depiction of the proposed LEPAA
Parking Area in "Exhibit l ." The parking spaces listed in "Exhibit l" are the consideration for the
transfer of the LEPAA Parking Area from the City to LEPAA, therefore, with the exception of a
City -approved temporary reduction of parking spaces available to the City, and without prior
written authorization of the City, the number of parking spaces available to the City at the LEPAA
Parking Area shall not fall below the number listed in the attached "Exhibit I," and shall not fall
below three hundred seventy-five (375) spaces. If the City and LEPAA agree in writing that the
depiction of the proposed LEPAA Parking Area should be amended to address changes in design
to the proposed LEPAA Parking Area, then, because the parking spaces provided in "Exhibit 1"
are a material part of the consideration for the transfer of the LEPAA Parking Area that is the
subject of this Agreement, such adjustment to the LEPAA Parking Area shall not create a net loss
of parking spaces provided in the attached depiction of the proposed LEPAA Parking Area. If
LEPAA should improve the LEPAA Parking Area, and should such improvement cause a net loss
in parking spaces in the LEPAA Parking Area, then LEPAA shall pay to the City as liquidated
damages in consideration of the City's loss of the public use of the parking spaces, the value of
the net loss of the parking spaces in the LEPAA Parking Area. The value of the net loss of parking
spaces shall be agreed upon by the Parties.
Shared Parking Lease Agreement —City of Lubbock & LEPAA— 2018 Page 2
Article 8. Access to City Property. This Agreement shall have no effect on the City's ability to
have free and uninterrupted access at all times to City -owned property near the LEPAA Parking
Area including, but not limited to, the City's ability to access the Physical Plant located adjacent
to the LEPAA Parking Area. The property associated with the Physical Plant is further depicted
and described in "Exhibit 3" attached to this Agreement.
Article 9. Termination. Either Parry may terminate this Agreement for cause by providing written
notice of such termination to the other Party at least thirty (30) days prior to the effective date of
termination, with such notice allowing the cure of the cause of termination within a reasonable
time.
Article 10. Service of Notice. Any notice required by this Agreement shall be deemed to be
properly served if deposited in the U.S. mail by certified letter, return receipt requested, addressed
to the recipient at the recipient's address shown below, and subject to the right of either Party to
designate a different address by notice given in the manner just described.
For the City:
For LEPAA:
City Manager
Chairman
City of Lubbock
Lubbock Entertainment
& Performing Arts Association
P.O. Box 2000
1500 Broadway, Suite 1254
Lubbock, Texas 79457
Lubbock, Texas 79401
(806)775-2016
(806)773-5650
The Parties acknowledge and affirm that no department of the City has the legal authority to enter
into any contract of any type or nature in the name of the department or to accept any legal notice
on behalf of the City.
Article 11. Funding. The Parties understand and acknowledge that the funding of this Agreement,
if any such funding is required, is contained in the City's annual budget and is subject to the
approval of the City in each fiscal year. The Parties further agree that should the City Council fail
to approve a budget which includes sufficient funds for the continuance of this Agreement, or
should the City Council fail to certify funds for any reason, then and upon the occurrence of such
event, this Agreement shall terminate as to the City and the City shall then have no further
obligation to LEPAA. When the funds budgeted or certified during any fiscal year by the City to
discharge its obligations under this Agreement are expended, LEPAA may terminate this
Agreement.
Article 12. Venue and Applicable Law. This Agreement is subject to all present and future valid
laws, orders, rules, ordinances, and regulations of the United States of America, the State of Texas,
the Parties, and any other regulatory body having jurisdiction over this Agreement. This
Agreement shall be construed and governed according to the laws of the State of Texas. The sole
venue for any action, controversy, dispute, or claim arising under this Agreement shall be in a
court of appropriate jurisdiction in Lubbock County, Texas exclusively.
Article 13. Rights and Remedies Reserved. Each Party 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, neither Party shall
be subject to any arbitration process prior to exercising its unrestricted right to seek judicial
Shared Parking Lease Agreement — City of Lubbock & LEPAA— 2018 Page 3
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 Agreement, the former shall control.
Article 14. Public Information. This Agreement is public information. To the extent, if any, that
any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et sea., as
amended, same shall be of no force and effect.
Article 15. No Third -Party Beneficiaries. This Agreement is entered solely by and between, and
may be enforced only by and among, the Parties. Except as set forth above, this Agreement shall
not be deemed to create any rights in or obligations to any third parties.
Article 16. No Personal Liability. Nothing in this Agreement is construed as creating any
personal liability on the part of any employee, officer or agent of any public body or other person
that may be a party to this Agreement.
Article 17. No Joint Enterprise, This Agreement is not intended to, and shall not be construed to
create any joint enterprise between or among the Parties.
Article 18. No Indemnification by City. The Parties expressly acknowledge that the City's
authority to indemnify and hold harmless any third parry is governed by Article XI, Section 7 of
the Texas Constitution, and any provision that purports to require indemnification by the City is
invalid.
Article 19. Insurance Requirements. LEPAA, and any contractor or subcontractor of LEPAA,
shall obtain and maintain all insurance coverage required by the City at all times while this
Agreement is in effect.
Article 20. Sovereign Immunity Acknowledged and Retained. THE PARTIES EXPRESSLY
ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS AGREEMENT IS IN
ANY WAY INTENDED TO CONSTITUTE A WAIVER BY ANY PARTY OF ANY
IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY
OPERATION OF LAW. THE CITY RETAINS ALL GOVERNMENTAL IMMUNITIES.
Article 21. Authority to Amend.
This Agreement may be amended by either Party in writing approved by the Parties and by the
City Council.
The Parties execute and enter into this Agreement on January 25, 2018
[SIGNATURES ON FOLLOWING PAGE]
Shared Parking Lease Agreement — City of Lubbock & LEPAA— 2018 Page 4
FOR THE CITY:
DANIEL M. POPE, MAYOR
ATTEST:
Pebca Garza, City Secretar
APPROVED AS TO CONTENT:
W. Jarr tt Atkinson, City Manager
APPROVED AS TO FORM:
i4, Assistant City Attorney
SIGNATURES
FOR LEPAA:
Tim Collins, airman
Shared Parldng Lease Agreement — City of Lubbock & LEPAA— 2018 Page 5
Exhibit 1— The LEPAA Parking Area (Metes & Bounds)
[77 i, a �j-`\ HUGO F:�EEED ANcF—) ASSOCTIATEFS,061NC.
JtE S REGISTERED ENGINEERING FIRM'F,]60
TEXAS LICENSED SURVEYING FIRM 100676 00
LAND SLJRVEYORS
CIVIL ENGINEER S
LEPAA Property — Metes & Bounds Description
METES AND BOUNDS DESCRIPTION of a portion of Lot 1-A, Block 1 and a portion of Lot 1-B, Block 1, Memorial Center
Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded under
County Clerk File Number 2017013164 of the Official Public Records of Lubbock County, Texas, being further described as
follows:
BEGINNING at a 1/2" iron rod with cap marked "HRA" found in the South right-of-way line of the Marsha Sharp Freeway as
described in Volume 7235, Page 120 of the Real Property Records of Lubbock County, Texas, being the Northeast comer of Lot
1-A, Block 1, and the Northwest corner of Lot 2-A, Block 1, Memorial Center Addition to the City of Lubbock, Lubbock County,
Texas, according to the map, plat and/or dedication deed thereof recorded under County Clerk File Number 2017013164 of the
Official Public Records of Lubbock County, Texas, for the Northeast corner of this tract;
THENCE S. 01041'14" W., along the Eastern boundary of said Lot 1-A, and the Western boundary of said Lot 2-A, at 481.33 feet
pass the most Easterly Southeast corner of said Lot 1-A same being the Northeast corner of Lot 1-B, Block 1, said Memorial Center
Addition, continuing along the Western boundary of said Lot 2-A, and along the Eastern boundary of said Lot 1-B, for a total
distance of 547.27 feet to a 1/2" iron rod with cap marked "HRA" set for the most Easterly Southeast comer of this tract, from
whence a 1/2" iron rod with cap marked "HRA" found at the Southeast comer of said Lot 1-B bears S. 01'4F14" W. a distance of
89.24 feet;
THENCE N. 88018'46" W. a distance of 161.50 feet to a 1/2" iron rod with cap marked "HRA" set for an "ell" corner of this tract;
THENCE S. 01041'14" W. a distance of 89.24 feet to a 1/2" iron rod with cap marked "HRA" set in the North right-of-way line of
Mac Davis Lane as dedicated by plat recorded in Volume 5, Page 384 of the Deed Records of Lubbock County, Texas, and the
Southern boundary of said Lot 1-B, for the most Southerly Southeast comer of this tract, from whence a 1/2" iron rod with cap
marked "HRA" found at the Southeast corner of said Lot 1-B bears S. 88018'46" E. a distance of 161.50 feet;
THENCE N. 88018'46" W., along said North right-of-way line and the Southern boundary of said Lot 1-B, a distance of 156.50
feet to a 1/2" iron rod with cap marked "HRA" set for the Southwest corner of this tract;
THENCE N. 01041'14" E., at 26.99 feet pass a point in the Northern boundary of said Lot 1-B, continuing for a total distance of
458.23 feet to a 1/211 iron rod with cap marked "HRA" set for a point of curvature;
THENCE Northwesterly, along a curve to the left, said curve having a radius of 99.50 feet, a central angle of 25057'39", tangent
lengths of 22.94 feet, a chord distance of 44.70 feet and a chord bearing of N. 11017'36" W. to a 1/2" iron rod with cap marked
"HRA" set for a point of tangency;
THENCE N. 24016'26" W. a distance of 117.49 feet to a set 1/211 iron rod with cap marked "HRA";
THENCE N. 01041'14" E. a distance of 30.00 feet to a 1/2" iron rod with cap marked "HRA" set in the said South right-of-way
line of Marsha Sharp Freeway and the Northern boundary of said Lot 1-A, for the Northwest corner of this tract;
THENCE S. 88010'30" E., along said South right-of-way line and the Northern boundary of said Lot 1-A, a distance of 379.48
feet to the Point of Beginning.
Contains: 193,880 square feet - 4.451 acres.
Bearings are Relative to Grid North, Texas Coordinate System 1983, North-Central Zone, (2011, epoch 2010.0).
Distances are Surface, U.S. Survey Feet.
N077CE: lllls;flrnonie.fi[e Is plroridrd,/nrr I ,uivaI pmpl<< ,..: . Ih<rtimpg oioIrl lived Lr 1p1i rotainrd on fik at Hngo Re,dcold i col it ,1"', /n nor ravr:Jdi>nip..: <�r.
the certified desn'ipiion g"rerns.
Shared Parking Lease Agreement — City of Lubbock & LEPAA — 2018 Page 6
FUTURE PARKING
GARAGE
, I.Y
1
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THIS DOCUMENT IS RELEASED ON SEPT.
19, 2017 FOR THE PURPOSE OF INTERIM
f oRSi1A SHARP FREENAY REVIEW UNDER THE AUTHORITY OF MIKE
W. MOSS. R.A.. TEXAS LICENSE #12113. IT
"'^-•-•-."..... ..-, �r , IS NOT TO BE USED FOR REGULATORY
L "'_---- ------ __ __ _ __ _ APPROVAL. CONSTRUCTION, BIDDING OR
_ PERMIT PURPOSES.
ACCFss RDAD ONt-WAY EAST SO D PARKHILL, SMITH & COOPER, INC.
'\\\I "" ''-;'l
' I GENERAL NOTES
TOTAL PROPERTY: 193,880 SF(4.451ACRES
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LANDSCAPE: 42,654 SFf0.979 ACRES(22%)
�'� TOTAL PARKING: 421
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MAC DAY13 LANE
BUDDY HOLLY HALL PARKHILL SMITH & COOPER
UVAt OF PERFORMING ARTS
AND SCIENCES
Lubbock Entertainment / LUBBOCK. TEXAS 0 100, 200 PARKING LAYOUT -OPTION 1
Performing Arts Association NORTH Project No: B669.15 Date: 9.19.17
Exhibit 2 — The City Parking Area
MIN .
T S t
y r
Area Excluded From
This Agreement
�.2_ _ IR:I[�IYJ L�:�y �.yf: U'l� �?L �. UL�CJ:N C.CI�•I IL,-:
The City Parking Area
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Exhibit 3 — The City's Physical Plant
"= HUGO REED AND ASSOCIATES, INC.
1601 AVENUE N I LUBBOCK, TEXAS 79401 1 8061763.5642 I FAX 8061763-3891
TEXAS REGISTERED ENGINEERING FIRM F•760
TEXAS LICENSED SURVEYING FIRM 100676.00
LAND SURVEYORS
CIVIL ENGINEERS
METES AND BOUNDS DESCRIPTION of a portion of Lot 1-B of Lots 1-A, 1-B and 2-A, Block 1, Memorial Center
Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof
recorded in County Clerk File Number (CCFN) 2017013164 of the Official Public Records of Lubbock County,
Texas (OPRLCT), being further described as follows:
BEGINNING at a 1/2" iron rod with cap set in the North right-of-way line of Mac Davis Lane as dedicated by plat
recorded in Volume 5, Page 384 of the Deed Records of Lubbock County, Texas, for the Southwest corner of said
Lot 2-A, Block 1, and the Southeast corner of this tract;
THENCE N. 88°18'46" W., along said North right-of-way line, a distance of 161.50 feet to a 1/2" iron rod with cap
set for the Southwest corner of this tract;
THENCE N. 01 °41'14" E. a distance of 89.24 feet to a 1/2" iron rod with cap set for the Northwest corner of this
tract;
THENCE S. 88°18'46" E. a distance of 161.50 feet to a 1/2" iron rod with cap set in the Western boundary of said
Lot 2-A, Block 1, for the Northeast corner of this tract;
THENCE S. 01 °41'14" W., along the Western boundary of said Lot 2-A, Block 1, a distance of 89.24 feet to the
Point of Beginning;
Bearings are Relative to Grid North, Texas Coordinate System 1983, North-Central Zone, (2011, epoch 2010.0).
Distances are Surface, U.S. Survey Feet
Contains 14,412 square feet or 0.3309 acres
Shared Parking Lease Agreement — City of Lubbock & LEPAA — 2017 Page 9
Resolution No. 2018-R0051
COMMITMENT AGREEMENT
THIS COMMITMENT AGREEMENT (the "Agreement") is made by and between the
City of Lubbock, Texas (the "City"), a State of Texas home rule municipal corporation,
and the Lubbock Entertainment and Performing Arts Association ("LEPAA"), a State of
Texas nonprofit organization, (each a "Party;" and collectively, the "Parties") acting by
and through their respective and duly authorized officers and officials, and is hereby
entered into by the Parties on _Tanuary 25, 2019 , (the "Effective Date")
RECITIALS
WHEREAS, LEPAA is a nonprofit organization founded in 2013, with donations and
grants from interested and caring citizens, organizations, and charitable foundations of
Lubbock, Texas and the surrounding South Plains region, to support it in achieving its goal
of providing entertainment and performing arts in Lubbock, including concerts, ballet
programs, symphony performances, Broadway shows, lecture series, cultural exhibits, and
educational materials; and
WHEREAS, LEPAA, in order to provide a venue for such entertainment and performing
arts, is building a permanent facility for a new performing arts center to be known as the
Buddy Holly Hall of Performing Arts and Sciences (the "Performing Arts Center") on
property located at 1300 Mac Davis Lane, Lubbock, Texas, across from the Lubbock
Memorial Civic Center (the "Civic Center"); and
WHEREAS, LEPAA, desires to construct a parking area adjacent to the Performing Arts
Center (the "Parking Area") on land currently owned by the City (the "Property"), with
such Property being further depicted and described by a survey with metes and bounds in
"Exhibit A" attached hereto, and with such Parking Area being further depicted in "Exhibit
B" attached hereto; and
WHEREAS, the City Council of the City (the "City Council") hereby finds that the
Parking Area would serve a public purpose by providing public and private parking for
downtown events at the Performing Arts Center, the Civic Center, and other downtown
Lubbock locations;
WHEREAS, the City and LEPAA recognize that the Property is located within the Central
Business District Tax Increment Financing Reinvestment Zone (the "CBD TIF") which
was established by the City through Ordinance 2001-0091, and along with the boundary
of the CBD TIF, the City also adopted the Central Business District Project Plan and
Financing Plan, the most recently updated version of which was approved by the City
through Ordinance 2017-00050 (the "Project Plans"); and
WHEREAS, the Project Plans anticipate that the CBD TIF will provide additional stimulus
to development and redevelopment in the CBD TIF, and the Project Plans support the
transfer, sale, and improvement of property within the CBD TIF; and
WHEREAS, Texas Tax Code §311.008(b)(2) allows the governing body of the City to
exercise any power necessary and convenient to sell real property on the terms and
conditions and in the manner it considers advisable, to implement the Project Plans, and,
according to Texas Tax Code §311.008(c), the authority of the governing body of the City
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 1
to sell real property to support the Project Plans prevails over any law or municipal charter
to the contrary; and
WHEREAS, for the public purpose of LEPAA's construction and maintenance of the
Parking Area, and to implement the Project Plans, the City desires to transfer the Property
to LEPAA through a Deed Without Warranty the terms and conditions of which the City
considers advisable; and NOW THEREFORE,
THE PARTIES, FOR GOOD AND VALUABLE CONSIDERATION, AGREE AS FOLLOWS:
AGREEMENT
Section 1— Recitals and Exhibits
The representations, covenants, and findings set forth in the recitals and exhibits of this
Agreement are material to this Agreement and are hereby incorporated into and made a
part of this Agreement.
Section 2 — Contract Authority
The Parties hereby warrant and represent that each has full lawful right, power, and
authority to execute, deliver, and perform the terms and obligations -of this Agreement.
Accordingly, this Agreement constitutes a legal and binding obligation upon the Parties.
Section 3 — The Property
As more particularly depicted and described in "Exhibit A" attached hereto, the Property
that is the subject of this Agreement is approximately four and a half (4.5) acres of City -
owned land generally located on the easternmost portion of the area bordered by 0' Street
and Marsha Sharp Freeway on the north, Avenue O on the west, Mac Davis Lane on the
south, and the Performing Arts Center on the east.
Section 4 — Public Purpose
LEPAA hereby warrants and agrees that if the Property is transferred according to the terms
contained in this Agreement, then the Property will be used solely for the public purpose
of providing public parking through a parking lot or parking garage containing no less than
three hundred seventy-five spaces (375) available for public use, with such parking lot or
parking garage containing space for retail sales and office uses according to the Site Plan
attached to this Agreement as "Exhibit B" (the "Public Purpose"). LEPAA hereby
acknowledges that the use of the Property is restricted to the Public Purpose.
Section 5 — Term
Unless terminated earlier under any provision contained herein, this Agreement shall
become effective on the day of its execution by both Parties and shall be effective through
December 31, 2023 (the "Term"). The Term may be extended or reduced in writing by
either Party as authorized by the City Council through a resolution.
Section 6 — LEPAA's Responsibilities
Upon the execution of this Agreement, LEPAA agrees to be bound by the following:
A. Prior to the transfer of the Property that is the subject of this Agreement, and prior to
the expiration of the Term, LEPAA shall conduct and pay for an official survey of the
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association— 2018 Page 2
Property. Upon its completion, said official survey of the Property shall be incorporated
into "Exhibit A" of this Agreement.
B. Prior to the transfer of the Property that is the subject of this Agreement, and prior to
the expiration of the Term, LEPAA shall enter into a shared parking lease agreement
with the City that addresses: LEPAA's use of public parking near the Property during
the construction and operation of the Parking Area; the City's use of the Parking Area;
and, the City's access to City -owned land that is adjacent to the Parking Area. Such
shared parking lease agreement shall be in substantially the same form as the Draft
Shared Parking Lease Agreement attached as "Exhibit C" to this Agreement.
C. Prior to the transfer of the Property, LEPAA may use a portion of the Property for a
stack lot in order to further the construction of the Performing Arts Center. LEPAA's
proposed portion of the Property to be used as a stack lot is depicted in "Exhibit D"
attached to this Agreement, with such use being subject to City approval.
D. Upon the transfer of the Property that is the subject of this Agreement, LEPAA agrees
to pay for all closing costs, including, but not limited to, a title policy, if such a policy
is required.
E. Upon the transfer of the Property that is the subject of this Agreement, and during the
construction and operation of the Parking Area, LEPAA agrees to maintain the Property
at its own expense and in accordance with the City's Code of Ordinances, including
the Downtown Public Improvements Design Standards.
F. Prior to LEPAA's initiation of any construction or improvements on the Property,
LEPAA shall submit final site plans to the City for permit approval that reflect
LEPAA's intended use of the Property solely for the Public Purpose.
G. Prior to LEPAA's initiation of any construction or improvements on the Property,
LEPAA shall provide evidence to the City that LEPAA has secured all the funding
necessary for the construction and maintenance of the Parking Area. Such evidence
shall be in an amount and form reasonably acceptable to the City. If the City, in its sole
discretion, determines that LEPAA has not secured all the funding required for the
construction and maintenance of the Parking Area, then the City will notify LEPAA in
writing and provide thirty (30) days for LEPAA to secure such funding, or this
Agreement shall terminate.
H. Within a reasonable time after the execution of this Agreement, but no later than twelve
(12) months after substantial completion of the construction of the Performing Arts
Center, LEPAA agrees to begin construction of the Parking Area at its own expense,
and upon completion of the Parking Area, LEPAA agrees to maintain the Parking Area
at its own expense according to the Downtown Public Improvements Design Standards.
I. The Parking Area will be primarily designed for the public purpose of vehicle parking,
but LEPAA agrees that at least twenty-two percent (22%) of the Parking Area will be
designed, constructed, and maintained as green space at LEPAA's expense.
Landscaping in the green space may consist of a combination of plant material,
including, but not limited to: grass, trees, shrubs, planters, brick, stone, natural forms,
water forms, decorative pavers, and other similar features. Any combination of brick,
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 3
stone, and decorative pavers shall account for no more than twenty-five (25%) of the
required landscaped area. Landscaping shall not include smooth concrete or asphalt.
LEPAA shall be responsible for the irrigation and maintenance of the landscaping in
the Parking Area at its own expense. The requirements of this provision may only be
adjusted through a written agreement signed by the Parties.
J. The Parking Area shall conform to the depiction of the proposed Parking Area in
"Exhibit B." The parking spaces listed in "Exhibit B" are the consideration for the
transfer of the Property from the City to LEPAA, therefore, with the exception of a
City -approved temporary reduction of the parking spaces made available to the City,
and without prior written approval of the City, the number of parking spaces available
to the City at the Parking Area shall not fall below the number listed in the attached
"Exhibit B," and in no case shall fall below three hundred seventy-five (375) spaces. If
the City and LEPAA agree in writing that the depiction of the proposed Parking Area
should be amended to address changes in design to the proposed Parking Area, then,
because the parking spaces provided in "Exhibit B" are a material part of the
consideration for the transfer of the Property that is the subject of this Agreement, such
adjustment to the Parking Area shall not create a net loss of parking spaces provided in
the attached depiction of the proposed Parking Area. If LEPAA should improve the
Parking Area, and should such improvement cause a net loss in parking spaces in the
Parking Area, then LEPAA shall pay to the City as liquidated damages in consideration
of the City's loss of the public use of the parking spaces, the value of the net loss of the
parking spaces in the LEPAA Parking Area. The value of the net loss of parking spaces
shall be agreed upon by the Parties.
K. LEPAA agrees that its business records, including any financial documents, shall be
open for inspection at reasonable times upon the request of the City.
L. LEPAA may terminate this Agreement without cause by providing written notice of
such termination to the City at least thirty (30) days prior to the effective date of such
termination.
Section 7 — The City's Responsibilities
Upon the execution of this Agreement, the City agrees to be bound by the following:
A. The City agrees to hold the Property for the public purpose of the Parking Area
throughout the Term, by which time LEPAA shall have satisfied its applicable
responsibilities under this Agreement.
B. If the City determines that LEPAA has satisfied its applicable responsibilities under
this Agreement prior to the expiration of the Term, then the City will notify LEPAA in
writing of the City's intent to transfer the Property to LEPAA by a Deed Without
Warranty in a form substantially similar to the draft Deed Without Warranty that
attached to this Agreement as "Exhibit E."
C. If the City determines that LEPAA has not satisfied all of its applicable responsibilities
under this Agreement by the expiration of the Term, then the City shall provide written
notification to LEPAA that this Agreement shall terminate, the City shall not transfer
the Property to LEPAA, and the Property shall not be available to LEPAA for the
Commitment Agreement —City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 4
Parking Area or any other project. The termination described in this subsection shall
become effective immediately upon the determination of the City and shall not require
any additional act, writing, or ruling of the City.
D. Through a resolution authorizing an amendment to this Agreement, the City may elect
to waive any of LEPAA's responsibilities under this Agreement. If any such resolution
is approved by the City Council, then the City will provide a copy of such resolution
and amendment to LEPAA.
Section 8 — Service of Notice
Any notice required by this Agreement shall be deemed to be properly served if deposited
in the U.S. mail by certified letter, return receipt requested, addressed to the recipient at the
recipient's address shown below, and subject to the right of either Party to designate a
different address by notice given in the manner just described.
For the City:
City Manager
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
(806) 775-2016
For LEPAA:
Chairman
Lubbock Entertainment
& Performing Arts Association
1500 Broadway, Suite 1254
Lubbock, Texas 79401
(806) 773-5650
The Parties acknowledge and affirm that no department of the City has the legal authority
to enter into any contract of any type or nature in the name of the department or to accept
any legal notice on behalf of the City.
Section 9 — Funding
The Parties understand and acknowledge that the funding of this Agreement, if any such
funding is required, is contained in the City's annual budget and is subject to the approval
of the City in each fiscal year. The Parties further agree that should the City Council fail to
approve a budget which includes sufficient funds for the continuance of this Agreement,
or should the City Council fail to certify funds for any reason, then and upon the occurrence
of such event, this Agreement shall terminate as to the City and the City shall then have no
further obligation to LEPAA. When the funds budgeted or certified during any fiscal year
by the City to discharge its obligations under this Agreement are expended, LEPAA may
terminate this Agreement.
Section 10 — Venue and Applicable Law
This Agreement is subject to all present and future valid laws, orders, rules, ordinances,
and regulations of the United States of America, the State of Texas, the Parties, and any
other regulatory body having jurisdiction over this Agreement. This Agreement shall be
construed and governed according to the laws of the State of Texas. The sole venue for any
action, controversy, dispute, or claim arising under this Agreement shall be in a court of
appropriate jurisdiction in Lubbock County, Texas exclusively.
Section 11— Rights and Remedies Reserved
Each Party 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, neither Party shall be subject to any
Commitment Agreement —City of Lubbock & Lubbock Entertainment and Performing Arts Association— 2018 Page 5
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 Agreement, the former shall control.
Section 12 — Public Information
This Agreement is public information. To the extent, if any, that any provision of this
Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et sea., as amended,
same shall be of no force and effect.
Section 13 — No Third -Party Beneficiaries
This Agreement is entered solely by and between, and may be enforced only by and among,
the Parties. Except as set forth above, this Agreement shall not be deemed to create any
rights in or obligations to any third parties.
Section 14 — No Personal Liability
Nothing in this Agreement is construed as creating any personal liability on the part of any
employee, officer, or agent of any public body or other person that may be a party to this
Agreement.
Section 15 — No Joint Enterprise
This Agreement is not intended to, and shall not be construed to create any joint enterprise
between or among the Parties.
Section 16 — No Indemnification by City
The Parties expressly acknowledge that the City's authority to indemnify and hold
harmless any third party is governed by Article XI, Section 7 of the Texas Constitution,
and any provision which purports to require indemnification by the City is invalid.
Section 17 — Insurance Requirements
LEPAA, and any contractor or subcontractor of LEPAA, shall obtain and maintain all
insurance coverage required by the City at all times while this Agreement is in effect.
Section 18 — Sovereign Immunity Acknowledged and Retained
THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO
PROVISION OF THIS AGREEMENT IS IN ANY WAY INTENDED TO
CONSTITUTE A WAIVER BY EITHER PARTY OF ANY IMMUNITIES FROM
SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW.
THE CITY RETAINS ALL GOVERNMENTAL IMMUNITIES.
Section 19 — Authority to Amend
This Agreement may be amended in writing by either Party, with such writing being subject
to the approval of the Parties and of the City Council.
The Parties execute and enter into this Agreement on January 25, 2018
[SIGNATURES INCL UDED ON THE NEXT PAGE)
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 6
SIGNATURES
FOR THE CITY:
DANIEL M. POPE, MAYOR
ATTEST:
pt .5K-
Rebt a Garza, City Secretary
APPROVED AS TO CONTENT:
01
W. Jai/eft Atkinson, City Manager
APPROVED AS TO FORM:
FOR LEPAA:
Tim Collins, airman
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 7
Exhibit A — The Property (Metes & Bounds)
-
HU -� CtD REED ANO ASSOCIATES. INC.
LAN E S LJ R I/ E'e O R S
C I V I L E N G I N E E R S
METES AND BOUNDS DESCRIPTION of a portion of Lot 1-A, Block 1 and a portion of Lot 1-B, Block 1, Memorial
Center Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed
thereof recorded under County Clerk File Number 2017013164 of the Official Public Records of Lubbock County, Texas,
being further described as follows:
BEGINNING at a 1/2" iron rod with cap marked "HRA" found in the South right-of-way line of the Marsha Sharp
Freeway as described in Volume 7235, Page 120 of the Real Property Records of Lubbock County, Texas, being the
Northeast corner of Lot 1-A, Block 1, and the Northwest corner of Lot 2-A, Block 1, Memorial Center Addition to the
City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded under
County Clerk File Number 2017013164 of the Official Public Records of Lubbock County, Texas, for the Northeast
comer of this tract;
THENCE S. 01041'l4" W., along the Eastern boundary of said Lot I -A, and the Western boundary of said Lot 2-A, at
481.33 feet pass the most Easterly Southeast corner of said Lot 1-A same being the Northeast corner of Lot 1-B, Block
1, said Memorial Center Addition, continuing along the Western boundary of said Lot 2-A, and along the Eastern
boundary of said Lot 1-B, for a total distance of 547.27 feet to a 1/2" iron rod with cap marked "HRA" set for the most
Easterly Southeast corner of this tract, from whence a 1/2" iron rod with cap marked "HRA" found at the Southeast corner
of said Lot I-B bears S. 01°41'l4" W. a distance of 89.24 feet;
THENCE N. 88018'46" W. a distance of 161.50 feet to a 1/2" iron rod with cap marked "HRA" set for an "ell" corner of
this tract;
THENCE S. 01041'14" W. a distance of 89.24 feet to a 1/2" iron rod with cap marked "HRA" set in the North right-of-
way line of Mac Davis Lane as dedicated by plat recorded in Volume 5, Page 384 of the Deed Records of Lubbock
County, Texas, and the Southern boundary of said Lot 1-B, for the most Southerly Southeast corner of this tract, from
whence a 1/2" iron rod with cap marked "HRA" found at the Southeast comer of said Lot 1-B bears S. 8898'46" E. a
distance of 161.50 feet;
THENCE N. 88018'46" W., along said North right-of-way line and the Southern boundary of said Lot 1-B, a distance of
156.50 feet to a 1/211 iron rod with cap marked "HRA" set for the Southwest corner of this tract;
THENCE N. 01 °41'14" E., at 26.99 feet pass a point in the Northern boundary of said Lot 1-B, continuing for a total
distance of 458.23 feet to a 1/2" iron rod with cap marked "HRA" set for a point of curvature;
THENCE Northwesterly, along a curve to the left, said curve having a radius of 99.50 feet, a central angle of 25°57'39",
tangent lengths of 22.94 feet, a chord distance of 44.70 feet and a chord bearing of N. 11°17'36" W. to a 1/2" iron rod
with cap marked "HRA" set for a point of tangency;
THENCE N. 24016'26" W. a distance of 117.49 feet to a set 1/2" iron rod with cap marked "HRA";
THENCE N. 01041'14" E. a distance of 30.00 feet to a 1/2" iron rod with cap marked "HRA" set in the said South right-
of-way line of Marsha Sharp Freeway and the Northern boundary of said Lot 1-A, for the Northwest corner of this tract;
THENCE S. 88010'30" E., along said South right-of-way line and the Northern boundary of said Lot 1-A, a distance of
379.48 feet to the Point of Beginning.
Contains: 193,880 square feet - 4.451 acres.
Bearings are Relative to Grid North, Texas Coordinate System 1983, North-Central Zone, (2011, epoch 2010.0).
Distances are Surface, U.S. Survey Feet.
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Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 8
Exhibit A — The Property (Survey)
Commitment Agreement —City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 9
a
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MARSHA SHARP FREEWAY
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PERRIUMM SURVEY OF A PORTION OF
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MEMORIAL CENTER ADDITION
TO THE CITI' OF LUBBOCK, LUBBOCK COUNTY•TEXAS
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Exhibit B — Proposed Parking Area
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 10
FUTURE PARKING
GARAGE
1.13% V
15% �
7
it/A YSHA SHARP F PEE/YA Y
ACCESS RDAD ON -WAY EAST .DNND
REP
�J/II�IS�P�11�111��I1111�14%
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.17y ' I fiD SP 1
t 29 SP t
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TENT
.U% U SP .10%
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1.60%I T
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L—J —
— r
MAC DAVIS LANE
- —t—
—t—_
—1—
IC — �I
THIS DOCUMENT IS RELEASED ON SEPT.
19, 2017 FOR THE PURPOSE OF INTERIM
REVIEW UNDER THE AUTHORITY OF MIKE
W. MOSS, R.A., TEXAS LICENSE #12113. IT
IS NOT TO BE USED FOR REGULATORY
APPROVAL, CONSTRUCTION, BIDDING OR
PERMIT PURPOSES.
PARKHILL, SMITH & COOPER, INC.
GENERAL NOTES
TOTAL PROPERTY: 193,880 SF/4.451ACRES
I LANDSCAPE:42,654 SF/0.979ACRES (22%)
'1 TOTAL PARKING: 421
- - - - _ - - - - -
- - - - - -
U..`
BUDDY HOLLY HALL
OF PERFORMING ARTSAND
SMITH &COOPER
SCIENCES
®®"PARKHILL
PARKING LAYOUT - OPTION 1
Lubbock Entertainment /
Performing Arts Association
LUBBOCK, TEXAS
o 100, 200
NORTH
Project No: 8669.15 Date: 9.19.17
Exhibit C — Draft Shared Parking Lease Agreement
(DRAFT) SHARED PARKING LEASE AGREEMENT
THIS SHARED PARKING LEASE AGREEMENT (the "Agreement") is made by and between the City
of Lubbock, Texas, a State of Texas home rule municipal corporation (the "City") and the Lubbock
Entertainment and Performing Arts Association, a State of Texas nonprofit organization ("LEPAA"), (each
a "Party;" and collectively, the "Parties"), acting by and through their respective and duly authorized officers
and officials, and is hereby entered into by the Parties on, (the "Effective Date").
THE PARTIES, FOR GOOD AND VALUABLE CONSIDERATION, AGREE AS FOLLOWS:
Article 1. The LEPAA Parking Area. Subject to the terms hereof, LEPAA authorizes the joint use by the
Parties of the parking area that will be constructed and maintained by LEPAA on approximately four and a
half (4.5) acres of land generally located on the easternmost portion of the area bordered by 41 Street and
Marsha Sharp Freeway on the north, Avenue O on the west, Mac Davis Lane on the south, and the Buddy
Holly Hall of Performing Arts and Sciences (the "Performing Arts Center") on the east (the "LEPAA Parking
Area"). The Parties' joint use of the LEPAA Parking Area shall be at no cost to the Parties, shall be non -
preferential, and shall be for the sole purpose of public parking during either of the Parties' events near the
LEPAA Parking Area. However, through its ticketing system or procedure, LEPAA may charge LEPAA
patrons for parking in the LEPAA Parking Area for events held at the Performing Arts Center. The LEPAA
Parking Area is more specifically described and depicted in "Exhibit l" of this Agreement.
Article 2. The City Parking Area. Subject to the terms hereof, the City authorizes the joint use by the Parties
of the parking lot located at the Lubbock Memorial Civic Center (the "City Parking Area"). The Parties' joint
use of the City Parking Area shall be at no cost to the Parties, shall be non -preferential, and shall be for the
sole purpose of public parking during either of the Parties' events near the City Parking Area. The City
Parking Area does not include any existing or future City -owned parking lot located off the Lubbock
Memorial Civic Center property. The City Parking Area is more specifically described and depicted in
"Exhibit 2" of this Agreement.
Article 3. The Term. This Agreement shall become binding on the Effective Date and shall remain in effect
through December 31, 2068 (the "Term"). The City reserves the right to extend the Term for two (2)
additional ten (10) year periods (the "Extension Periods"), and LEPAA shall not prevent such extension. The
City and LEPAA may extend the Term beyond the Extension Periods through a supplemental agreement
signed by the Parties.
Article 4.Ouarterly Event Coordination. Each Party will provide a quarterly update to the other Party that
lists the Party's planned events that might affect the Parties' joint use of the LEPAA Parking Area and the
City Parking Area. The quarterly updates shall be provided by each Party no later than January 10, April 10,
July 10, and October 10 of each year, with each update detailing the planned and expected events that will
occur prior to the next quarterly update. Based upon the quarterly update, the Parties shall develop a quarterly
plan for the joint use of both the LEPAA Parking Area and the City Parking Area. If a Party should schedule
an event not included in its quarterly plan, then that Party shall immediately inform the other Party in order
to ensure the joint use of the LEPAA Parking Area and the City Parking Area. The Parties may adopt an
updated plan other than the quarterly plan considered in this Article upon approval by the City Manager. The
intent of the quarterly plan is for each Party to have priority in their own parking area for that Party's events.
If both Parties are holding events at the same time, the quarterly plan will address how to provide adequate
parking for each event.
Article 5. Parking Area Maintenance. The City will maintain the City Parking Area at its own expense.
LEPAA will maintain the LEPAA Parking Area at its own expense according to the terms of the Commitment
Agreement between the City and LEPAA, with such Commitment Agreement being made a part of this
Agreement by reference. The City will not create or allow to be created any waste or nuisance on the LEPAA
Parking Area caused by the City's use of the LEPAA Parking Area. LEPAA will not create or allow to be
created any waste or nuisance on the City Parking Area caused by LEPAA's use of the City Parking Area.
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 11
Article 6. Future City Improvements. Nothing in this Agreement shall prevent the City from improving
any land or property owned by the City at the time of, or subsequent to the Effective Date of, this Agreement.
If the City should so improve any of its property, and should such improvement interfere with LEPAA's joint
use of the City Parking Area, then this Agreement shall not terminate and the Parties' joint use of the LEPAA
Parking Area shall continue without interruption. However, if the City should improve its property as
contemplated under this Article, and should such improvement affect the availability of the parking at the
City Parking Area, then this Agreement shall be immediately suspended and shall not become reactivated
until such time as the City has amended this Agreement through a resolution passed by the City Council of
the City. Any suspension of this Agreement under this Article shall neither extend nor otherwise have any
effect on the Term of this Agreement.
Article 7. Future LEPAA Improvements. Nothing in this Agreement shall prevent LEPAA from
improving the LEPAA Parking Area so long as such improvements do not create a net loss in parking spaces
in the LEPAA Parking Area, unless such loss in parking spaces is temporary and City approved. The LEPAA
Parking Area shall conform to the depiction of the proposed LEPAA Parking Area in "Exhibit L" The
parking spaces listed in "Exhibit 1" are the consideration for the transfer of the LEPAA Parking Area from
the City to LEPAA, therefore, with the exception of a City -approved temporary reduction of parking spaces
available to the City, and without prior written authorization of the City, the number of parking spaces
available to the City at the LEPAA Parking Area shall not fall below the number listed in the attached
"Exhibit 1," and shall not fall below three hundred seventy-five (375) spaces. If the City and LEPAA agree
in writing that the depiction of the proposed LEPAA Parking Area should be amended to address changes in
design to the proposed LEPAA Parking Area, then, because the parking spaces provided in "Exhibit 1" are a
material part of the consideration for the transfer of the LEPAA Parking Area that is the subject of this
Agreement, such adjustment to the LEPAA Parking Area shall not create a net loss of parking spaces
provided in the attached depiction of the proposed LEPAA Parking Area. If LEPAA should improve the
LEPAA Parking Area, and should such improvement cause a net loss in parking spaces in the LEPAA
Parking Area, then LEPAA shall pay to the City as liquidated damages in consideration of the City's loss of
the public use of the parking spaces, the value of the net loss of the parking spaces in the LEPAA Parking
Area. The value of the net loss of parking spaces shall be agreed upon by the Parties.
Article 8. Access to City Property. This Agreement shall have no effect on the City's ability to have free
and uninterrupted access at all times to City -owned property near the LEPAA Parking Area including, but
not limited to, the City's ability to access the Physical Plant located adjacent to the LEPAA Parking Area.
The property associated with the Physical Plant is further depicted and described in "Exhibit 3" attached to
this Agreement.
Article 9. Termination. Either Party may terminate this Agreement for cause by providing written notice of
such termination to the other Party at least thirty (30) days prior to the effective date of termination, with
such notice allowing the cure of the cause of termination within a reasonable time.
Article 10. Service of Notice. Any notice required by this Agreement shall be deemed to be properly served
if deposited in the U.S. mail by certified letter, return receipt requested, addressed to the recipient at the
recipient's address shown below, and subject to the right of either Party to designate a different address by
notice given in the manner just described.
For the City:
For LEPAA:
City Manager
Chairman
City of Lubbock
Lubbock Entertainment
& Performing Arts Association
P.O. Box 2000
1500 Broadway, Suite 1254
Lubbock, Texas 79457
Lubbock, Texas 79401
(806) 775-2016
(806) 773-5650
The Parties acknowledge and affirm that no department of the City has the legal authority to enter into any
contract of any type or nature in the name of the department or to accept any legal notice on behalf of the
City.
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 12
Article 11. Funding. The Parties understand and acknowledge that the funding of this Agreement, if any
such funding is required, is contained in the City's annual budget and is subject to the approval of the City
in each fiscal year. The Parties further agree that should the City Council fail to approve a budget which
includes sufficient funds for the continuance of this Agreement, or should the City Council fail to certify
funds for any reason, then and upon the occurrence of such event, this Agreement shall terminate as to the
City and the City shall then have no further obligation to LEPAA. When the funds budgeted or certified
during any fiscal year by the City to discharge its obligations under this Agreement are expended, LEPAA
may terminate this Agreement.
Article 12. Venue and Applicable Law. This Agreement is subject to all present and future valid laws,
orders, rules, ordinances, and regulations of the United States of America, the State of Texas, the Parties, and
any other regulatory body having jurisdiction over this Agreement. This Agreement shall be construed and
governed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute, or
claim arising under this Agreement shall be in a court of appropriate jurisdiction in Lubbock County, Texas
exclusively.
Article 13. Rights and Remedies Reserved. Each Party 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, neither Party shall 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 Agreement, the former shall control.
Article 14. Public Information. This Agreement is public information. To the extent, if any, that any
provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et sea., as amended, same
shall be of no force and effect.
Article 15. No Third -Party Beneficiaries. This Agreement is entered solely by and between, and may be
enforced only by and among, the Parties. Except as set forth above, this Agreement shall not be deemed to
create any rights in or obligations to any third parties.
Article 16. No Personal Liability. Nothing in this Agreement is construed as creating any personal liability
on the part of any employee, officer or agent of any public body or other person that may be a party to this
Agreement.
Article 17. No Joint Enterprise. This Agreement is not intended to, and shall not be construed to create any
joint enterprise between or among the Parties.
Article 18. No Indemnification by City. The Parties expressly acknowledge that the City's authority to
indemnify and hold harmless any third party is governed by Article XI, Section 7 of the Texas Constitution,
and any provision that purports to require indemnification by the City is invalid.
Article 19. Insurance Requirements. LEPAA, and any contractor or subcontractor of LEPAA, shall obtain
and maintain all insurance coverage required by the City at all times while this Agreement is in effect.
Article 20. Sovereign Immunity Acknowledged and Retained. THE PARTIES EXPRESSLY
ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS AGREEMENT IS IN ANY WAY
INTENDED TO CONSTITUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT
OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE CITY RETAINS
ALL GOVERNMENTAL IMMUNITIES.
Article 21. Authority to Amend. This Agreement may be amended by either Party in writing approved by
the Parties and by the City Council.
[Signatures and Exhibits will be Included on the Official Version of this Shared Parking Lease Agreement/
Commitment Agreement — Cite of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 13
Exhibit D — Proposed Stack Lot Location
<= North
1
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 14
Exhibit E — Draft Deed Without Warranty
(DRAFT) DEED WITHOUT WARRANTY
DATE:
GRANTOR: City of Lubbock, Texas
GRANTOR'S MAILING ADDRESS:
P.O. Box 2000
Lubbock, TX 79457
GRANTEE: Lubbock Entertainment & Performing Arts Association
GRANTEE'S MAILING ADDRESS:
1500 Broadway, Suite 1254
Lubbock, Texas 79401
CONSIDERATION:
The Grantor and the Grantee expressly stipulate that the Grantee shall utilize the Property solely in
a manner that promotes a public purpose of the Grantor. The Grantor and the Grantee stipulate that
the consideration of a public purpose use of the Property by the Grantee is the sole consideration
to be received by the Grantor for the conveyance of the Property by the Grantor and that such
consideration is sufficient in all respects. Further, under the authority granted to it by Texas Tax
Code §311.008(b)(2), the Grantor, in exercising the power it deems necessary and convenient to
implement the Central Business District Tax Increment Financing Reinvestment Zone Project Plan
and Financing Plan, adopted by the City of Lubbock through Ordinance 2017-00050 (the "Project
Plans"), finds that the consideration received for the transfer of the Property to the Grantee is
advisable to implement the Project Plans.
PROPERTY (INCLUDING ANY IMPROVEMENTS):
The property that is the subject of this Deed Without Warranty is depicted and described in the
attached "Exhibit A" (the "Property").
CONVEYANCE AND RESTRICTION OF USE OF THE PROPERTY:
It is the intent of the Grantor to convey a fee simple estate in the Property to the Grantee, with the
use of the Property being restricted to the public purpose of the Grantor. For the purposes hereof,
the public purpose of the Grantor shall mean a public parking area adjacent to the Grantee's Buddy
Holly Hall of Performing Arts and Sciences located at 1300 Mac Davis Lane, Lubbock, Texas,
across from the Lubbock Memorial Civic Center, with such public parking area being a parking lot
or parking garage providing no less than three hundred seventy-five spaces (375) available for
public use and containing space for retail sales and office uses as specifically depicted in the
attached "Exhibit 1." The parking area shall be a public benefit to the City of Lubbock by providing
public parking for downtown events and venues, including the Lubbock Memorial Civic Center
and the Buddy Holly Hall of Performing Arts and Sciences.
REPRESENTATIONS AND WARRANTIES OF GRANTEE:
The Grantee represents and warrants to the Grantor that it has made an independent inspection and
evaluation of the Property and the title to the same, and acknowledges that the Grantor has made
no statements or representations concerning the present or future value of the Property, the state of
Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 15
title of the Property, the condition, including the environmental condition of the Property, or the
anticipated income, costs, or profits, if any, to be derived from the Property.
FURTHER, THE GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT
WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, INCLUDING WITHOUT
LIMITATION, THE EXISTENCE OF LIENS AGAINST THE PROPERTY, THE VALUE,
QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY OR
MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY
AND/OR IMPROVEMENTS LOCATED THEREON, THE NATURE OF THE PAST OR
HISTORIC USE OF THE PROPERTY, MERCHANTABILITY OR FITNESS FOR
PURPOSE OF ANY OF THE PROPERTY.
The Grantee further acknowledges that, in accepting this Deed Without Warranty, it has relied
solely upon its independent evaluation and examination of the Property, and public records relating
to the Property and the independent estimates, computations, evaluations, and studies based
thereon. The Grantor makes no warranty or representation as to the accuracy, completeness, or
usefulness of any information furnished to the Grantee, if any, whether furnished by the Grantor or
any other third party. The Grantor, its officers, employees, elected officials, independent
contractors, and agents assume no liability for the accuracy, completeness, or usefulness of any
material furnished by the Grantor, or any of its officers, employees, elected officials, independent
contractors, or agents, if any, or any other person or party. Reliance on any material so furnished
shall not give rise to any cause, claim, or action against the Grantor, its officers, employees, elected
officials, independent contractors, or agents, and any such reliance shall be at the Grantee's sole
risk.
THE CONVEYANCE OF THE PROPERTY SHALL BE ON A "WHERE IS," "AS IS,"
AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION
OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED,
INCLUDING, BUT WITHOUT LIMITATION, AS TO TITLE, INCLUDING, BUT NOT
LIMITED TO, THE EXISTENCE OF LIENS AGAINST THE PROPERTY, THE
DESCRIPTION, PHYSICAL, AND ENVIRONMENTAL CONDITION OF THE
PROPERTY AND MATERIALS CONTAINED OR LOCATED IN, ON, OR UNDER THE
PROPERTY, OR IMPROVEMENTS LOCATED THEREON, THE NATURE OF THE
PAST OR HISTORIC USE OF THE PROPERTY, QUALITY, VALUE, FITNESS FOR
PURPOSE, MERCHANTABILITY, OR OTHERWISE.
The Grantee has satisfied itself as to the title, type, condition, quality, and extent of the Property
and Property interests that comprise the Property it is receiving pursuant to this Deed Without
Warranty.
The Grantor, for the consideration and subject to the conveyance and restriction of use of the
Property, grants, sells, and conveys to the Grantee the Property, to have and to hold it to the Grantee
and the Grantee's successors and assigns forever, without warranty, express or implied, statutory
or otherwise, and all warranties that might arise by common law and the warranties created by
Section 5.023 of the Texas Property Code (and all amendments and successors thereto) are
expressly excluded.
/Signature, Notary, and Exhibit Pages To Be Included On Official Copy]
Commitment Agreement —City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 16