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HomeMy WebLinkAboutResolution - 2022-R0244 - Amendment to Commitment Agreement with LEPAAResolution No. 2022-RO244 Item No. 7.37 May 10, 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, an Amendment to the January 25, 2018, Commitment Agreement, by and between the City of Lubbock and the Lubbock Entertainment and Performing Arts Association, and related documents. Said Amendment 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 May 10 DANIEL M. POPESMAYOR ATTEST: Rebe ca Garza, City Secredhwj Faggt1611VA 1NMtyIC�ZK�7� 1� Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Ryan B oke, Assistant City Attorney RES.Amendment to Commitment Agreement-LEPAA-BHFI & COL 11.14.21 Resolution No. 2022-R0244 AMENDMENT TO COMMITMENT AGREEMENT DATED JANUARY 25, 2018 This Amendment is made as of the IOth day of May , 2022 by and between the City of Lubbock, Texas (the "City"), a Texas home rule municipal corporation, and the Lubbock Entertainment and Performing Arts Association ("LEPAA"), a Texas nonprofit organization, (each a "Party," and collectively being the "Parties") acting by and through their respective and duly authorized officers and officials. RECITALS WHEREAS, due to the COVID-19 pandemic, the Buddy Holly Hall of Performing Arts and Sciences ("BHH") has encountered delays in the receipt of materials, construction delays, and restrictions on gathering of individuals, including theaters; and WHEREAS, there is a possibility that these circumstances may impact LEPAA's income from BHH during the first years of operation, and may also impact its ability to secure all the funding necessary for construction and maintenance of the Parking Area within the required time period; and WHEREAS, the Parties desire to adjust LEPAA's responsibilities in Section 6 of the Commitment Agreement to allow additional time to secure all the funding necessary for construction and maintenance of the Parking Area while also requiring LEPAA to construct a Temporary Parking Area prior to the completion of the Parking Area; NOW THEREFORE, the City and LEPAA agree to amend and replace Section 6, Paragraph H of the Commitment Agreement between the parties dated January 25, 2018, to read as follows: H. Parking Areas 1. Within a reasonable time after the execution of this Agreement, but no later than December 1, 2022, LEPAA agrees to begin construction of the initial phase, being roughly the southern half, of the Parking Area at its own expense. Said Parking Area being more particularly described in the attached Exhibit "C," to be included and become part of this Agreement after approval by the City. LEPAA shall complete construction of the initial phase of the Parking Area by May 31, 2023. LEPAA shall complete construction of the entire Parking Area by May 31, 2025. 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. Prior to beginning construction, LEPAA shall submit plans and specifications for the Parking Area, including delineation of the initial phase, to the City for approval. The City shall not unreasonably withhold approval of the plans and specifications. 2. LEPAA further agrees to grant the City the right of ingress and egress at all times for such purpose of accessing the City's physical plant located on the Southeast corner of the Parking Area. LEPAA shall not in any way, by design of the Parking Area or otherwise, restrict the City's access to the City's physical plant located on the Southeast corner of the Parking Area. Particularly, the access on the North side of the physical plant shall not be obstructed in any way. IN WITNESS WHEREOF, each Party hereto has caused this Amendment to be executed on behalf of such Party by an authorized representative as of the date first set forth above. FOR THE SIGNATURES FOR L DANIEL M. POPE, MAYOR Tim Collins, Chairman ATTEST: RebeU Garza, City Secret APPROVED AS TO CONTENT: Brooke Witcher, Assistant City Manager APPROVED AS TO FO v' Ryan �oke, Assistant City Attorney Commitment Agreement Amendment LEPAA & COL 5.2.22 BUDDY HOLLY HALL OF PERFORMING ARTS AND SCIENCES WEST PARKING PHASE 1 MARSHA SHARP FREEWAY SCALE: 1-=30• LEGEND US HIGHWAY NO 82 IVNe,.BIL A-O-k, COYCREI� �_�-��-_- - • - PHASE 1 -157 STANDARD PARKING SPACES 3UM•I[t0 'M-O-a a.3MT') 8 ADA STALLS ,.,.•_,,,r•�_. _�MARSHA SHARP FREEWAY --- •` —.—.. ACqE;SSROAD ONE-WAY EASTBOUND jam.._• _—_�..._._....._..._.__—_— ��_ _ _ __— I • •_`__�_"�__-...... _ —. •�. is �'p_' '• • 0 0 0 0 0 0 0 ■� O O O O O 0 p 0 0 0 0 0 ! 0 0 0 0 0 o O I' ! _ O o 0 0 0 0 0 j • 1 _0 O O— - O O ° O Ell hn § 0 0 0 0 0 01 I -- I. t io O O p O O O '1 _,Q 0 0 O O 0 •,1 ------------------------------------------------------- I�Ij--I���T:14 -------- i I _ [L t ILI_ i ! . 91 4 ; illl I I I I ' 43 • � / s . I • (( 11 I r f I . r } • III• ..A � y,�/ /r//// g � �'_�� '- ��III� �� �I �� .• it �' ��\ • I // � /i� rig /i /ri / \ \ ! iI I •},.. Ci' i I; {y I \ ,•�•-ate`-----_____ , I ^ ea•• > nrw,sv �x-o-n ,sc1 MAC DAVIS LANE °-' Resolution 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 DANIEL M. POPE, MAYOR ATTEST: Re T cca Garza, City Secretary APPROVED AS TO CONTENT: Scott Snider, Assistant City Manager APPROVED AS TO FORM: Pruitt) Assitstant City A 0eement —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, January 2Sr2018 (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 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 (l 0) 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. Parkine 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 U' 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. 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 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. 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 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. 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: Reb ca Garza, City Secretar APPROVED AS TO CONTENT: W. Ja tit Atkinson, City Manager APPROVED AS TO FORM: Assistant City Attorney SIGNATURES FOR LEPAA: Tim Collins, a rman Shared Parking Lease Agreement - City of Lubbock & LEPAA — 2018 Page 5 Exhibit 1— The LEPAA Parkine Area (Metes & Bounds) HUGO REED Ar4o ASSt7C1ATEs, INC. tool AVENUE N I LUDDOCN. TESAII TS+SI I SSSr1 Si SS+E I - SOSIAf ..*, TEXAS RED I STERED ENGINE GRIND FIRM 11SS T AS LICENSED SU-ETIND I.RN 1SSS1S SS LANM SURVEYORS CIVIL ENGINEERS LEPAA Property — Metes & Bounds Description METES AND BOUNDS DESCRIPTION of a portion of Lot 1-A, Block 1 and a portion of Lot I-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 lit" 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. 01 04 P14" 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 comer 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 corner of said Lot 1-B bears S. 01 *4 F14" 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. 88'18'46" 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 1/2" 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 25D57'39", tangent lengths of 22.94 feet, a chord distance of 44.70 feet and a chord bearing of N. I 1* 1 T36" 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. 8801010" E., along said South right-of-way line and the Northern boundary of said Lot I -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. %,)I IN, rhYI' owflr is J irr;•r r; u;!:a..rr•✓:uurtrlI "prin•n.:n:m Jas r:h ;Ili, "!.I Rr. .—_r;,w h, am rayenj r./nerrv.:ar: r. ripron p'r:r:n Shared Parking Lease Agreement — City of Lubbock & LEPAA — 2018 Page 6 FUTURE PARKING GARAGE THIS DOCUMENT -S RELEASED ON SEPT slit 19 2011 FOR THE PURPOSE OF INTERIM N.40PS11A S".PP "eOAPW r I'! �\ . SEW UNDER THE AUTHORITY OF MIKE r� W MOSS. RA . TEXAS L CENSE 812113. IT IS NOTTO BE USED FOR REGULATORY APPROVAL CONSTRUCTION BIDDING OR _ PERMIT PURPOSES .ocrr PARKHILL, SMITH& COOPER INC K.Z.2 r7D GENERAL NOTES II TOTALPROPERTY InSO0SF4451ACRES 54 F10979ACRES (2216) IANDSCAPE 12,6 TOTAL PARKWG s21S �t I ANT j i-,..........w t aa. BUDDY HOLLY HALL PARKHILL SMITH & COOPER OF PERFORMING ARTS � AND SCIENCES ®® PARKING LAYOUT - OPTION 1 Lubbock EnleAalnment I LUBBOCK- TEXAS 0 1o0' 200 e Performing Arts Assoclatmn NORTH Prgect No SSee 15 Gate 91917 Exhibit 2 — The City Parkine Area Oat 91 � r r KIM Area Excluded From This Agreement zf� '� l - :3IIa.i r.. , -M "` h `•ERA' mans.--T•r ETb* City, ftrkiAg �i n. F rF 1 ! n.i:.e 5Ot w w� IFshe Y 1 , � Exhibit 3 — The City's Physical Plant HUGO REED AND ASSOCIATES, INC. 1601 AVENUE N 1 LUBBOCK, TEXAS 79401 1 8061703.5042 1 FAX 8061763-3891 MEM" 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 1-13 of Lots 1-A, 1-13 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. 88018'46" 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 lanu= 25, 201 R , (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 7one (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 4" 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: 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. 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 INCLUDED 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: _Q..fVA0A -fr, , C Rebe ca Garza, City Secretary T, U APPROVED AS TO CONTENT: W. Ja ett 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) ;1.HUGO REED ANr� Aa80C1ATE8. INC. C'w �� .....«..«r........ ...,......,,.. LAND SI..IRV EY[]RS CIVIL ENGINEERS 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. 0104l'l4" 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 comer 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 1-B bears S. 01 *41' 14" 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. 01 °41' 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 corner of said Lot 1-B bears S. 88°18'46" E. a distance of 161.50 feet; THENCE N. 8801846" 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. 0104 F14" E., at 26.99 feet pass a point in the Northern boundary of said Lot I -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. 11017136" W. to a 1/2" iron rod with cap marked "HRA" set for a point of tangency; THENCE N. 2401676" 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 comer 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 - 4A51 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. :UT7t. 1: li;rr.Lrnn,•. ,r•..,r �,.,,.:•„�,,,„,.F„r.cn.u„r.:uc,rnnm,ur�uw.-nm,;m ::: r:or�•r„r, ❑rc r,a•r mr•r uu .� �,fAix'r,irem, nn r, rHli..i•7. "I.i7,r:,•,t,i,••, ruc•"•I,••' •,.. .,,,.. ... .� r Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2019 Page 8 Exhibit A — The Property (Survey) Commitment Agreement - City of Lubbock & Lubbock Entertainment and Performing Arts Association - 2018 Page 9 AL4IPld'LC dY MP FAWWAY I`-- :rs "���ae'-wa� earaa'ro aciS}i� �1 Ij�i �_� witi �OFoaw.uv�mMiAnonia� i�l � `1 1� ��a•ur 5 I' 4amr. `myvrt7ruongv I I � j I I� - AMC �QAKS rommaaa��rorAranwa IUi 1.A BDQ I AMIAIUaiNrlOr lOr.$®OR 4 MEMORIAL CENTER ADDMON N:r w W'ir� M.- ....�..... BMW a Od �u~id�asi tiN� s ...^" "' �• err •.rqz.. rr.suA..er.r+. r� F Exhibit B — Proposed Parking Area Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 10 J FUTURE PARKING GARAGE — Lj THIS DOCUMENT IS RELEASED ON SEPT 19, 2017 FOR THE PURPOSE INTERIM .IyA.PSHA S.YANP F.PEEH'AY I REVIEW .RA.TNDER HE TEXAS AUTHORITY LICENSE 0O113 IT r// W. MOSS, RA, TEXAS LICENSE f12113 IT IS NOT TO BE USED FOR REGULATORY �— APPROVAL. CONSTRUCTION. BIDDING OR PERMIT PURPOSES .......................... PARKHILL, SMITH 6 COOPER. INC GENERALNOTES TOTAL PROPERTY 193.880 SF14.451ACRES LANDSCAPE 42.85( SFIO 979 ACRES (22%) TOTAL PARKING 421 BUDDY HOLLY HALL PAP" SMfi1i &COOPER OF PERFORMING ARTS ® e AND SCIENCES PARKING LAYOUT -OPTION 1 lubbodcEnterlammenl/ LUBBOCK. TEXAS o 1ar tar Performing Arts Association NORTH Proled No866915 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 4t6 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 Parry'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 Parry'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 I I 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, City Manager For LEPAA: Chairman City of Lubbock Lubbock Entertainment & Peribtming Ails 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 Wit be Included on the Official Version of this Shared Parking Lease Agreement/ Commitment Agreement - City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2018 Page 13 Exhibit D — Proposed Stack Lot Location <= North 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 L" 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 htcluded On Official Copyl Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association - 2018 Page 16