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HomeMy WebLinkAboutResolution - 2017-R0139 - Lubbock Entertainment And Performing Arts Association (LEPPA) Commitment Agreeme - 04/13/2017Resolution No.2017-R0139 Item No.6.24 April 13,2017 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 andon behalfof the Cityof Lubbock,a Commitment Agreement and related documents by and between the City of Lubbock and the Lubbock Entertainment and Performing Arts Association (LEPAA) for the transfer of real property from the City of Lubbockto 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 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 April 13,2017 ATTEST: i/CC^e Rebedca Garza,City Secret1 APPROVED AS TO CONTENT Scott Snider,Assistant City Manager APPROVED AS TO FORM: DANIEL M.POPE,MAYOR ccdocs/K6S*i<greement - Lubbock Entertainmentand PerformingArtsAssociation-Parkins AreaCommitment Agreement March 30,2017 Resolution No. 2017-RO139 COMMITMENT AGREEMENT This Commitment Agreement (the "Agreement") is made 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, acting by and through their respective and duly authorized officers and officials. 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 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, Texas Local Government Code (the "Local Gov't Code") Section 253.011 allows a municipality to transfer real property to a non-profit organization for a public purpose; WHEREAS, the City desires to transfer the Property to LEPAA for the public purpose of LEPAA's construction and maintenance of the Parking Area, with such Parking Area being further depicted in "Exhibit B" attached hereto; 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. Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 1 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 the Parking Area. LEPAA hereby acknowledges that if at any time the Property is not used for the public purpose of the Parking Area, except as may be otherwise provided in this Agreement, then the ownership of the Property will automatically revert to the City. 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, 2022 (the "Term"). The Term may be extended through an amendment to this Agreement 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 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. B. 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 of the Parking Area. C. 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 Property. Upon its completion, said official survey of the Property shall be incorporated into "Exhibit A" of this Agreement. D. 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 Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 2 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. E. Prior to the transfer of the Property, LEPAA may use a portion of the Property for a stack Iot 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. F. 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. G. 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. H. Within a reasonable time after the transfer of the Property that is subject to 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, 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. J. LEPAA hereby represents that as of the date of execution of this Agreement it is a nonprofit organization as that term is defined in the Local Gov't Code Section 253.011(a). LEPAA further warrants that it will maintain its status as a nonprofit organization, as that term is defined in the Local Gov't Code Section 253.01 l (a), throughout its construction, maintenance, ownership, and control of the Parking Area. 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 with cause by providing written notice of such termination to the City at least thirty (30) days prior to the effective date of termination. Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 3 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 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, 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 Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 4 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 not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this 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 seq., 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 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. Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 5 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 ANY 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 City Council. The Parties execute and enter into this Agreement on April 13. 2017 SIGNATURES FOR THE CITY: L'— DANIEL M. POPE, MAYOR ATTEST: Re ecca Garza, City Sec eta APPROVED AS TO CONTENT: vvlC�L Scott Snider, Assistant City Manager FOR LEPAA: ,ex IK , A k--- I T16 Collins, hairman Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 6 APPROVED AS TO FORM: Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 7 Exhibit A — The Property Property — Survey Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 8 HUGO REED AND ASSOCIATES, INC. 1601 AVENUE N 1 LUBBOCK. TEXAS 79401 1 8061763-5642 / FAX 8061763-3391 TEXAS REGISTERED ENGINEERING FIRM F-760 J TEXAS LICENSED SURVEYING FIRM 100676-00 LAND SURVEYORS CIVIL ENGINEERS 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 corner of Lot I -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. 01041'14" 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 comer of said Lot 1-A same being the Northeast corner of Lot 1-B, 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°41'14" W. a distance of 89.24 feet; THENCE N. 88018'46" W. a distance of 161.23 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. 88'1846" E. a distance of 161.23 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 156.77 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 25°57'39", tangent lengths of 22.94 feet, a chord distance of 44.70 feet and a chord bearing of N. 1197136/1 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 I -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. .vsr of 16 , "paurn it r' nli d dra nl 1, l xn , rr_s. Commitment Agreement —City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 9 I Lubbock •nt`ainment / Performing Arts Association O FUTURE PARKING GARAGE BUDDY HOLLY HALL OF PERFORMING ARTS AND SCIENCES I UBBDCK TEXAS IfA.oS" SNA.VP FFEElYAY THIS DOCUMENT IS RELEASED ON FEB 16, 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 // I\ REGULATORY APPROVAL, CONSTRUCTION, BIDDING OR PERMIT PURPOSES. DOPER INC NOTES 185955 50 SFA 27 ACRES i9 SF/O 80 ACRES (18.5%) 130 ,297. 78 SF/0.21 ACRES 18.595 55M 43 ACRES PARKHILL SMITH & COOPER aDPARKING LAYOUT -OPTION 2 NORTH Prolect No - - r.: Ltt- _ . 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 municipal corporation (the "City") and the Lubbock Entertainment and Performing Arts Association, a State of Texas nonprofit organization ("LEPAA"), (each considered a "Party," and considered collectively as the "Parties"), acting by and through their respective and duly authorized officers and officials, and is hereby entered into by the Parties on , 2017 (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" 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. 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, 2037. The Term may be extended with written authorization of the City Council. 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 report, 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 update schedule other than the schedule considered in this Article upon approval by the City Manager. 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 — 2017 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. 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 8. 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 9. 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 10. 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 11. 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 12. 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 Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 12 all forms of relief in a court of competent jurisdiction. Further, neither Party shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Article 13. 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 14. 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 15. 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 that may be a party to this Agreement. Article 16. 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 17. 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 18. 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 19. Sovereien 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 20. Authority to Amend. This Agreement may be amended by either Party in writing as approved by the City Council (Signatures and Exhibits will be Included on the Official Version of this Shared Parking Lease Agreement/ Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 13 Exhibit D — Proposed Stack Lot Location North Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 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: Grantor and Grantee expressly stipulate that Grantee shall utilize the Property solely in a manner that promotes a public purpose of the Grantor. Grantor and Grantee stipulate that the consideration of public purpose use by Grantee is the sole consideration to be received by Grantor for the conveyance of the Property by Grantor and that such consideration is sufficient in all respects. 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"). The Property is conveyed to Grantee and Grantee's successors and assigns for so long as the Property is used to promote a public purpose of the Grantor. If the Property ceases to be so used, all rights, title, and interest conveyed by this instrument shall automatically revert to and vest in Grantor, and Grantor's successors and assigns, without the necessity of any further act on the part of or on behalf of the Grantor, it being the intent of Grantor to convey a fee simple determinable estate to the Grantee. For the purposes hereof, the "public purpose" of the Grantor shall mean a 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. The Parking Area shall be a public benefit to the City 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: Grantee warrants and represents that it is a non-profit organization, as that term is defined in the Texas Local Government Code Section 253.011(a). Grantee represents and warrants to Grantor that it has made an independent inspection and evaluation of the Property and the title to same and acknowledges that Grantor has made no statements or representations concerning the present or future value of the Property, the state of 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. Commitment Agreement —City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 15 FURTHER, 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 AND/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. 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. Grantor makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Grantee, if any, whether furnished by Grantor or any other third party. Grantor, its officers, employees, elected officials, independent contractors, and agents assume no liability for the accuracy, completeness or usefulness of any material furnished by Grantor, or any of its officers, employees, elected officials, independent contractors and/or agents, if any, and/or any other person or party. Reliance on any material so furnished shall not give rise to any cause, claim or action against Grantor, its officers, employees, elected officials, independent contractors and/or agents, and any such reliance shall be at 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. 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. Grantor, for the consideration and subject to the reservations and exceptions to conveyance, grants, sells, and conveys to Grantee the Property, to have and to hold it to Grantee and 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 Of Copy] Commitment Agreement — City of Lubbock & Lubbock Entertainment and Performing Arts Association — 2017 Page 16