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HomeMy WebLinkAboutResolution - 2017-R0259 - LEPAA Amended And Restated Deed Without Warranty - 07/27/2017Resolution No.2017-R0259 Item No.6.20 July 27, 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 and on behalf of the City of Lubbock, an Amended and Restated Deed Without Warranty and related documents for the transfer of property generally described as Lot 2 and portions of Lot 1,Block 1,Memorial Center Addition to the City of Lubbock; the East 15 feet of the South 15 feet of Lot 3 and all of Lots 4-7, Block 4 of the Original Town of Lubbock; and, a portionof Avenue M, locatedWestof andadjacentto said Lots4-7, Block4 of the Original Town of Lubbock, Lubbock County, Texas, by and between the City of Lubbock and the Lubbock Entertainment and Performing Arts Association. Said Amended and Restated DeedWithout Warranty is attached hereto and incorporated in this resolution as if fully set forthhereinand shall be includedin the minutesofthe CityCouncil. Passed by the City Council on July 27,2017 ATTEST: JL*-bAX, Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Atkinson,City Manager APPROVED AS TO FORM: ccdocs/KES_AgreefiTem -City of Lubbock &LEPAA -Amended &Restated Deed Without Warranty July 20,2017 LATRELLE JOY,MAYDR PRO TEM File and Return to Dave Booher R.O.W. Resolution No.2017-R0259 City of Lubbock ^g-j :-J i id s NOTICE OF CONFIDENTIALITY RIGHTS:IF YOU ARE A NATURAL PERSON,YOU S MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION ^g FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC §3 RECORDS:YOUR SOCIAL SECURITY NUMBER OR DRIVER'S LICENSE NUMBER.S m AMENDED AND RESTATED DEED WITHOUT WARRANTY RECITALS WHEREAS,the City of Lubbock (the "City")has transferred 6.121 acres of City-owned land located at 1300 Mac Davis Lane,Lubbock,Texas (the "Property"),to the nonprofit organization, Lubbock Entertainment and Performing Arts Association ("LEPAA");and WHEREAS,the City's transfer to LEPAA of the Property was under the authority of Texas Local Government Code §253.011,which allowed the consideration for the transfer of the Property to be in the form of an agreement between the City and LEPAA that required LEPAA to use the Property in a manner that primarily promotes a public purpose of the City or the Property would automatically revert to the City; and WHEREAS,a Commitment Agreement between the City and LEPAA containing the required consideration under Texas Local Government Code §253.011 was approved by the City on July 23, 2013 through Resolution 2013-R0239,attached to this Amended and Restated Deed Without Warranty as Exhibit B (the "Commitment Agreement");and WHEREAS,Texas Local Government Code §253.011 required the Deed Without Warranty that effectuated the transfer of the Property to contain a provision that required LEPAA to use the Property in a manner that primarily promotes a public purpose of the City, and if LEPAA ever failed to use the Property for such public purpose,then the Property would automatically revert to the City;and WHEREAS,a Deed Without Warranty transferring the Property from the City to LEPAA and containing the provisions required under Texas Local Government Code §253.011 was filed and recorded as County Clerk File 2015022810 in the Official Public Records of Lubbock County, Texas (the "Original Deed");and WHEREAS,through the Commitment Agreement and the Original Deed,the City and LEPAA agreed that the Property should be used for the public purpose of an entertainment and performing arts venue providing concerts,ballet programs,symphony performances,Broadway shows,lecture series,cultural exhibits,and educational programs for the residents of the City; and WHEREAS,LEPAA planned,designed,and began construction of the Buddy Holly Hall of Performing Arts and Sciences (the "Buddy Holly Hall")on the Property,in order to satisfy the public purpose of an entertainment and performing arts venue required in the Commitment Agreement and the Original Deed;and WHEREAS,in addition to money promised in written commitments to LEPAA for the Buddy Holly Hall,LEPAA attempted to secure interim financing from a coalition of banks to pay for the remaining construction and operation costs of the Buddy Holly Hall,but LEPAA was unable to Amended &Restated Deed Without Warranty - City of Lubbock to Lubbock Entertainment and Performing Arts Association -2017 Page 1 ,3 -z. i O secure interim financing because the Property was subject to the reversion in the Commitment Agreement and the Original Deed; and WHEREAS, with the construction and operation costs of the Buddy Holly Hall remaining unfunded, the Buddy Holly Hall will not be constructed and the City's and LEPAA's desire for a public entertainment and performing arts venue on the Property will not materialize; and WHEREAS, the City and LEPAA recognize that the reversion required in the Commitment Agreement and the Original Deed prevents the funding of the public entertainment and performing arts venue on the Property, and so the City and LEPAA agree that the Commitment Agreement should be terminated and that the Original Deed should be amended and restated in order to allow for the public purpose of a public entertainment and performing arts venue to be constructed and operated on the Property; and WHEREAS, the City and LEPAA recognize that Texas Property Code §5.029 and §5.030 allow the parties of a land transaction to execute and sign a correction instrument to make a material correction to the original instrument, with such correction instrument becoming effective as of the effective date of the original recorded instrument of conveyance; and WHEREAS, the City and LEPAA agree that this Amended and Restated Deed Without Warranty constitutes a material correction to the Original Deed as contemplated under Texas Property Code §5.029 and §5.030, that this Amended and Restated Deed Without Warranty replaces and is a substitute for the Original Deed, and that this Amended and Restated Deed Without Warranty terminates the Commitment Agreement; and WHEREAS, the City and LEPAA recognize that the Property is located within the Central Business District Tax Increment Financing Reinvestment Zone (the "CBD TIF") which was established by the City through Ordinance 2001-0091, and along with the boundary of the CBD TIF, the City also adopted the Central Business District Project Plan and Financing Plan, the most recently updated version of which was approved by the City through Ordinance 2017-00050 (the "Project Plans"); and WHEREAS, the Project Plans anticipate that the CBD TIF will provide additional stimulus to development and redevelopment in the CBD TIF, and the Project Plans support the transfer, sale, and improvement of property within the CBD TIF; and WHEREAS, Texas Tax Code §311.008(b)(2) allows the governing body of the City to exercise any power necessary and convenient to sell real property on the terms and conditions and in the manner it considers advisable, to implement the Project Plans, and, according to Texas Tax Code §311.008(c), the authority of the governing body of the City to sell real property to support the Project Plans prevails over any law or municipal charter to the contrary; and WHEREAS, in addition to a material change under Texas Property Code §5.029 and §5.030, the City and LEPAA acknowledge that this Amended and Restated Deed Without Warranty for the Property is the memorialization of the City's exercise of its power under Texas Tax Code §311.008(b)(2) to implement the Project Plans by transferring the Property to LEPAA for the consideration and restrictions contained herein, namely, that this Amended and Restated Deed Without Warranty contains no reversion, but instead provides consideration for the transfer on the Amended & Restated Deed Without Warranty — City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 2 terms and conditions and in the manner the governing body of the City considers advisable to implement the Project Plans; and WHEREAS, upon the filing of this Amended and Restated Deed Without Warranty for the transfer of the Property from the City to LEPAA for LEPAA's construction and operation of the Buddy Holly Hall, the City will not be obligated to pay or advance any money for the development, construction, or operation of the Buddy Holly Hall, all of which obligations have been assumed by LEPAA; and NOW THEREFORE, IN CONSIDERATION OF THE RECITALS, PROMISES, AND COVENANTS CONTAINED IN THIS AMENDED AND RESTATED DEED WITHOUT WARRANTY; THE PUBLIC BENEFIT TO THE CITY AND ITS RESIDENTS ARISING OUT OF AND IN CONNECTION WITH THE BUDDY HOLLY HALL; THE CONSIDERATION PAID IN HAND TO THE CITY FROM LEPAA IN THE AMOUNT OF FIFTY THOUSAND DOLLARS ($50,000); THE RESTRICTION OF THE USE OF THE PROPERTY FOR THE PUBLIC PURPOSE OF AN ENTERTAINMENT AND PERFORMING ARTS VENUE; AND, FOR OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH CONSIDERATION IS HEREBY ACKNOWLEDGED, THE CITY AND LEPAA AGREE TO THE TRANSFER OF THE PROPERTY AS FOLLOWS: AMENDED AND RESTATED DEED WITHOUT WARRANTY The City of Lubbock, a State of Texas Home Rule Municipal Corporation, located at P.O. Box 2000, Lubbock, Texas 79457 (the "Grantor"), by virtue of the authority set forth in Texas Tax Code §311.008(b)(2), and the Lubbock Entertainment and Performing Arts Association, a State of Texas Nonprofit Organization, located at 1500 Broadway, Suite 1254, Lubbock, Texas 79401 (the "Grantee"), each acting by and through its duly authorized officers and elected officials, according to Texas Property Code §5.029 and §5.030, do hereby amend and restate the Deed Without Warranty filed and recorded as County Clerk File 2015022810 in the Official Public Records of Lubbock County, Texas through this Amended and Restated Deed Without Warranty. A. PROPERTY (INCLUDING ANY IMPROVEMENTS) The property that is the subject of this Amended and Restated Deed Without Warranty (the "Property") is legally described as: The surface only of Lot Two (2), and portions of Lot One (1), Block One (1) Memorial Center Addition to the City of Lubbock, Lubbock County, Texas, according to the plat and dedication deed for Memorial Center Addition recorded in Volume 1349, pages 521 through 525 of the Deed Records of Lubbock County, Texas. The Property is more specifically described by metes and bounds in the attached Exhibit A. The Property is conveyed by the Grantor to the Grantee and the Grantee's successors and assigns under the authority of Texas Tax Code §311.008(b)(2). B. CONSIDERATION The Grantor and the Grantee expressly stipulate that the Grantee shall utilize the Property in a manner that promotes the public purpose of an entertainment and performing arts venue in order to implement the Grantor's Central Business District Project Plan and Financing Plan. The Grantor Amended & Restated Deed Without Warranty — City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 3 and the Grantee stipulate that the payment of fifty thousand dollars ($50,000) by the Grantee to the Grantor and the restricted use of the Property to a manner that promotes the public purpose of an entertainment and performing arts venue in order to implement the Grantor's Central Business District Project Plan and Financing Plan is sufficient consideration to be received by the Grantor for the conveyance of the Property to the Grantee by the Grantor (the "Consideration"). C. RESTRICTION OF USE The Grantor and Grantee hereby agree that the use of the Property shall be restricted to the public purpose of an entertainment and performing arts venue that will benefit the residents of the City (the "Restriction of Use"). D. EXCEPTIONS AND RESERVATIONS The Grantor hereby waives its right to provide for any exception or reservation to its interest in the Property by this Amended and Restated Deed Without Warranty. E. REPRESENTATION 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 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, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, THE EXISTENCE OF LIENS AGAINST THE PROPERTY, THE VALUE, QUALITY, PHYSICAL CONDITION OF THE PROPERTY, ENVIRONMENTAL CONDITION OF THE PROPERTY, MATERIALS LOCATED ON, IN, OR UNDER THE PROPERTY, IMPROVEMENTS LOCATED ON THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, OR THE MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY PORTION OF THE PROPERTY. The Grantee further acknowledges that, in accepting this Amended and Restated Deed Without Warranty, it has relied solely upon its independent evaluation and examination of the Property, 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, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, THE EXISTENCE OF LIENS AGAINST THE PROPERTY, THE VALUE, QUALITY, Amended & Restated Deed Without Warranty— City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 4 PHYSICAL CONDITION OF THE PROPERTY, ENVIRONMENTAL CONDITION OF THE PROPERTY, MATERIALS LOCATED ON, IN, OR UNDER THE PROPERTY, IMPROVEMENTS LOCATED ON THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, OR THE MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY PORTION OF THE PROPERTY. The Grantee has satisfied itself as to the title, type, condition, quality, and extent of the Property and the interests that comprise the Property as the Grantee has received the Property pursuant to this Amended and Restated Deed Without Warranty. THE GRANTOR, FOR THE CONSIDERATION AND THE RESTRICTION OF USE, 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 TEXAS PROPERTY CODE §5.023, ARE EXPRESSLY EXCLUDED. THIS CONVEYANCE CONTEMPLATED IN THIS AMENDED AND RESTATED DEED WITHOUT WARRANTY IS ACCORDING TO TEXAS TAX CODE §311.008(B)(2), AND, ACCORDING TO TEXAS PROPERTY CODE §5.029 AND §5.030, IS EXECUTED BY THE GRANTOR AND GRANTEE ON , AND UPON THE FILING AND RECORDING OF THIS AMENDED AND RESTATED DEED WITHOUT WARRANTY, IT SHALL BE EFFECTIVE AS OF THE DATE OF COUNTY CLERK FILE 2015022810 IN THE OFFICIAL PUBLIC RECORDS OF LUBBOCK COUNTY. F. SIGNATURES AND NOTARIZATION FOR THE GRANTOR: FOR THE GRANTEE: LATRELLE JOY, MAYOR RO TEM LEPAA, by TIM COLLINS, Chairman Amended & Restated Deed Without Warranty — City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 5 State of Texas § County of Lubbock § This instrument vOWZf before me on 2017, by , ATE aniel M. Pope the City of Lu bock, a Texas municipal corporation, on beha f ofUid Ma)or corporation. °sPPY JENNIFER SOWpER CLEMENTS * Notary public, State of Texas Notary IDt 12497068.3 Sr'TFOFT Ei'My Commission Expires 06-28-2020 State of Texas § County of Lubbock § This instrument was executed before me on I'd (, 2017, by COk i V>S Cy DATE Ti. Collins o Y \QC� i VA CAM of the Lubbock Entertainment and Performing Arts Association, a Texas Chalrmao nonprofit organization, on behalf of said organization. NaryYubfic r`'i�:Y•P9e •., SHELBY DELUNA *: *= MY COMMISSION EXPIRES April 9, 2019 When Recorded, Return an Official Copy To: City Secretary City of Lubbock, Texas 1625 13`h Street Lubbock, Texas 79401 Amended & Restated Deed Without Warranty — City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 6 Exhibit A - Property (Including Any Improvements) METES AND BOUNDS DESCRIPTION of Lot 2 and portions of Lot 1, 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 Volume 1349, Page 521 of the Deed Records of Lubbock County, Texas and the East 15 feet of the South 15 feet of Lot 3 and all of Lots 4-7, Block 4 of the Original Town of Lubbock, Lubbock County, Texas, according to the map, plat, and/or dedication deed thereof recorded in Volume 5, Page 384 of the Deed Records of Lubbock County, Texas, and a portion of Avenue "M," located West of and adjacent to said Lots 4-7, Block 4 of the Original Town of Lubbock, closed and abandoned by Quit Claim Deed recorded in Volume 1338, Page 818 of the Deed Records of Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" iron rod with cap marked "HUGO REED & ASSOC." found in the North right-of-way of Mac Davis Lane as dedicated by plat recorded in Volume 5, Page 384 of the Deed Records of Lubbock County, Texas at the most Southerly Southeast corner of Lot 2, Block 1, Memorial Center Addition to the City of Lubbock, Lubbock County, Texas; THENCE, N. 88° 1846" W., along said North right-of-way line and the Southern boundary of said Lot 2, Block 1, at 373.02 feet pass a 1/2" iron rod with cap marked "WSC" found at the most Southerly Southeast corner of said Lot 1, Block 1 and the most Southerly Southwest corner of said Lot 2, Block 1, continuing along said North right-of-way line and the Southern boundary of said Lot 1, Block 1, for a total distance of 552.20 feet to a 1/2" iron rod with cap marked "HUGO REED & ASSOC." set for the Southwest corner of this tract; THENCE, N. 01°4114" E., at 152.91 feet pass a 1/2" iron rod with cap marked "WSC" found at the most Westerly Southwest corner of said Lot 2, Block 1, continuing along the Eastern boundary of said Lot 1, Block 1 and the Western boundary of said Lot 2, Block 1, at 466.15 feet pass a 3/8" iron rod found at the most Westerly Northwest corner of said Lot 2, Block 1 and a corner of said Lot 1, Block 1, continuing for a total distance of 636.52 feet to a 1/2" iron rod with cap 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 at the Northwest corner of this tract; THENCE, S. 88°10'30" E., along said South right-of-way line, a distance of 188.00 feet to a 1/2" iron rod with cap marked "WSC" found in the West line of a 20 foot alley as granted by plat recorded in Volume 5, Page 384 of the Deed Records of Lubbock County, Texas and the Eastern boundary of said Lot 1, Block 1 at a corner of this tract; THENCE, S. 01 °41' 14" W., along said West alley line, the Eastern boundary of said Lot 1, Block 1, and the Eastern boundary of said Lots 3-7, Block 4, a distance of 169.91 feet to a 1/2" iron rod with cap marked "HUGO REED & ASSOC." found in the Northern boundary of said Lot 2, Block 2 at the Southeast corner of said Lot 7, Block 4 and the Southwest corner of said 20 foot alley; THENCE, S. 88°18'46" E., along the Northern boundary of said Lot 2, Block 1 and the South line of said 20 foot alley, a distance of 20.00 feet to a 1/2" iron rod with cap marked "WSC" found at the Southeast corner of said 20 foot alley and an "ell" corner of said Lot 2, Block 1; Amended & Restated Deed Without Warranty - City of Lubbock to Lubbock Entertainment and Performing Arts Association - 2017 Page 7 THENCE, N. 01°41'14" E., continuing along the Northern boundary of said Lot 2, Block 1 and along the East line of said 20 foot alley, a distance of 170.75 feet to a 1/2" iron rod with cap marked "HUGO REED & ASSOC." found in the South right-of-way line of the Marsha Sharp Freeway as described in Volume 6332, Page 52 of the Real Property Records of Lubbock County, Texas at a corner of this tract; THENCE, S. 85-28-46" E., along said South right-of-way line, a distance of 95.13 feet to a "cross" cut in a utility vault for the most Northerly Northeast corner of this tract; THENCE, S. 43-18-54" E., continuing along said South right-of-way line, a distance of 42.41 feet to a 1/2" iron rod with cap marked "WSC" found in the West right-of-way line of Avenue "L" as granted by plat recorded in Volume 1349, Page 521 of the Deed Records of Lubbock County, Texas and the Eastern boundary of said Lot 2, Block 1 for the most Easterly Northeast corner of this tract; THENCE, S. 01'41-14" W., along said West right-of-way line and the Eastern boundary of said Lot 2, Block 1, a distance of 3.17 feet to an 80 penny nail found at a point of curvature; THENCE, Southeasterly, continuing along said West right-of-way line and the Eastern boundary of said Lot 2, Block 1, around a curve to the left, said curve having a radius of 598.00 feet, a central angle of 31°30'59", tangent lengths of 168.75 feet and a chord distance of 324.81 feet to a "cross" cut in concrete for a point of tangency; THENCE, S. 29°49'45" E., continuing along said West right-of-way line and the Eastern boundary of said Lot 2, Block 1, a distance of 291.35 feet to a 1/2" iron rod with cap marked "HUGO REED & ASSOC." found at a point of curvature; THENCE, Southwesterly, continuing along said West right-of-way line and the Eastern boundary of said Lot 2, Block 1, around a curve to the right, said curve having a radius of 25.00 feet, a central angle of 121°30'59", tangent lengths of 44.66 feet and a chord distance of 43.63 feet back to the Point of Beginning. Contains: 266,617 square feet — 6.121 acres. Bearings are relative to Grid North, NAD 83, Texas Coordinate System, North-Central Zone, City of Lubbock Geodetic Network and Aerial Control. Distances are Surface, U.S. Survey Feet. Amended & Restated Deed Without Warranty— City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 8 EXHIBIT B — Terminated Commitment Agreement between the City and LEPAA [COMM7TMENT AGREEMENT BEGINS ON TBE NEXT PAGE] Amended & Restated Deed Without Warranty— City of Lubbock to Lubbock Entertainment and Performing Arts Association — 2017 Page 9 (Resolution No. 2013-RO239 July 23, 2013 Item No. 6.7 RESOLUTION BE IT RESOLVED BY TI IE CITY COUNCIL OF TI IL' CITY OF IX1313OCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute flor and on behalf of the City of Lubbock a Commitment Agreement between the City of Lubbock and Lubbock Entertainment and Performing Arts Association to provide land located at 1302 Mac Davis Lane, for the public purpose of construction and operation of a Performing Arts Center. 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 Council. Passed by the City Council on ,lulu 23, 2013 , 2013. ;0 GLL'N C. ROBL' TSON, MAYOR A-171'LST: Rebcc ,a Gana. City Sc re ry APPROVED AS '1 O vl - 9 19 ing City .Nlanager APPROVED AS TO FORM: Linda L. Chamales Economic Development Attorney LcAit, Jule I i, 2013 Resolution No. 2013-RO239 COMMITMENT AGREEMENT This Commitment Agreement (the "Agreement") is 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 and the region, to support it in achieving its goal of building, operating, and maintaining a state- of-the-art entertainment and performing facility to include concerts, ballet programs, symphony performances, Broadway shows, lecture series, cultural exhibits, and educational materials; and WHEREAS, LEPAA desires to build a pennanent facility for a new Performing Arts Center on City -owned property located at 1302 Mac Davis Lane, Lubbock, Texas, across from the Civic Center consisting of approximately 5 acres which is bounded by the Marsha Sharp Freeway on the North, Avenue L on the East, and Mac Davis Lane on the South; and WHEREAS, the LEPAA has already raised more than twenty million dollars ($20,000,000) in pledges, is committed to raise all the money necessary to begin building the Performing Arts Center on or before December 31, 2017, and intends to continue raising money for operating and maintaining the Performing Arts Center once completed; WHEREAS, the City Council finds that a Performing Arts Center would serve a public purpose by promoting performing arts as a vital part of the quality of life for the citizens of Lubbock, promoting the tourism industry in the City, and furthering Goal 6 in the category of Recreation, Parks, Entertainment and Cultural Affairs, as established in "Goals for Lubbock — A Vision Into the 215t Century," and WHEREAS, Texas Local Government Code Section 253.011 allows a municipality to transfer real property to a non-profit organization for such a public purpose, and the City desires to transfer the property located at 1302 Mac Davis Lane to LEPAA for a Performing Arts Center; NOW THEREFORE, the Parties agree as follows: ARTICLE I RECITALS AND EXHIBITS PART OF AGREEMENT The representations, covenants, and findings, and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of his Agreement as though they were fully set forth in this Article I. Exhibits "A" "B," "C," and "D," attached hereto are incorporated into this Agreement as if fully set forth herein. City Of Lubbock/LEPAA Agreement Page 1 ARTICLE II REPRESENTATIONS AND WARRANTIES OF LUBBOCK ENTERTAINMENT AND PERFORMING ARTS ASSOCIATION 2.1 LEPAA warrants and represents that it is a non-profit organization, as that term is defined in the Texas Local Government Code Section 253.011. 2.2 LEPAA wan -ants and represents that LEPAA has full lawful right, power and authority to execute and deliver and perform the terms and obligations of this Agreement and all of the foregoing have been or will be duly and validly authorized and approved by all necessary actions of LEPAA. Concurrently with the Chairman's execution of this Agreement, LEPAA has delivered to the City copies of the resolutions or other corporate actions authorizing the execution of this Agreement and evidencing the authority of the persons signing this Agreement on behalf of LEPAA to do so. Accordingly, this Agreement constitutes the legal, valid, and binding obligation of LEPAA, and is enforceable in accordance with its terms and provisions. 2.3 LEPAA warrants and represents that if transferred, it will use the real property that is the subject of this Agreement, solely for the public purpose of construction and operation of an Entertainment and Performing Arts venue. LEPAA understands that if at any time the property is not used for that purpose, ownership of the property will automatically revert to the City. ARTICLE III RESPONSIBILITIES OF LUBBOCK ENTERTAINMENT AND PERFORMING ARTS ASSOCIATION 3.1 Prior to transfer of the property, LEPAA shall have at least forty-five million dollars ($45,000,000.00) in written commitments for building of the Performing Arts Center. 3.2 The LEPAA Board agrees to continue to raise money for construction of the Performing Arts Center. If construction has not begun and if LEPAA is unable to provide assurances satisfactory to the City that its financial condition is strong enough to provide an income stream for construction of the Performing Arts Center by December 31, 2017, this Agreement will terminate. 3.3 LEPAA agrees that its financial documents, including commitment agreements, shall be open for inspection at reasonable times upon request by the City Manager or his/her designee. 3.4 LEPAA agrees that prior to transfer of the real property, a survey will be conducted of the mutually agreed upon parcel to be transferred, that LEPAA will pay for the survey, and that the survey shall be incorporated in this document as Exhibit "C." 3.5 At the time the real property is transferred, the LEPAA agrees to negotiate a shared parking agreement with the City substantially in the form of the Shared Parking Agreement attached as Exhibit "D." City Of Lubbock/LEPAA Agreement Page 2 ARTICLE IV RESPONSIBILITIES OF THE CITY 4.1 The City agrees to hold the real property described in the attached Exhibit "A" until December 31, 2017. 4.2 City agrees that prior to transfer of the real property, a survey will be conducted of the mutually agreed upon parcel to be transferred and the survey shall be incorporated in this document as Exhibit "C." 4.3 If the Conditions Precedent to Performance, described in Article III and Article V, have been met prior to December 31, 2017, City agrees to transfer to LEPAA by recorded Deed Without Warranty, substantially in the form attached hereto as Exhibit "B", the real property located at 1302 Mac Davis Lane, being approximately 5 acres in size, and further described in the attached Exhibit "A." 4.4 City agrees to expend up to three hundred thousand dollars ($300,000.00) to deliver the site described in Exhibit "A" free of all above ground buildings, parking lots, towers, and with city utilities extended to the property line in order to provide a "shovel ready" development lot to LEPAA within 90 days of notification to the City, in writing, that LEPAA has meet all their responsibilities described in Article III. Any additional funding necessary to provide a "shovel ready" development lot will be the responsibility of LEPAA. 4.5 It is understood between the parties that the Texas Department of Public Safety (DPS) has leased the property from the City and that the term of the lease ends within sixty days of DPS occupying Lubbock Regional DPS Facility. DPS is contractually bound to cause the 12,000 gallon gasoline underground storage tank north of the fueling canopy and the 4,000 gallon diesel underground storage tank west of the fueling canopy to be permanently removed at the end of the lease, in accordance with the requirements of the Texas Commission on Environmental Quality, other state and federal regulations, and within a reasonable time after the DPS vacates the Premises. The State retains responsible party status and liability for cleanup of contamination associated with any activities and facilities associated with State operations on this property. 4.6 City agrees to pay for a Title policy and all closing fees upon transfer of the real property that is the subject of this Agreement. 4.7 At the time the real property is transferred, the City agrees to negotiate a shared parking agreement with LEPAA substantially in the form of the Shared Parking Agreement attached as Exhibit "D." City Of Lubbock/LEPAA Agreement Page 3 4.8 If requested by LEPAA at the time the real property is transferred, the City agrees to support closing Mac Davis Lane between Avenue O and Avenue L, subject to approval by the appropriate City Departments. ARTICLE V CONDITIONS PRECEDENT TO PERFORMANCE 5.1 City shall not be obligated to perform under this Agreement unless, within the designated time periods, LEPAA has performed, furnished, or caused to be furnished to the City all items required to be performed or furnished under other sections of this Agreement, including those Responsibilities of Lubbock Entertainment and Performing Arts Association listed in Article III. 5.2 City is not obligated to perform under this Agreement unless all representations, warranties, covenants and agreements of LEPAA contained in this Agreement are true and correct, as of the Closing date, except where specific reference is made to another date. 5.3 Notwithstanding anything contained in this Agreement to the contrary, City may, at City Council's option, elect to waive any of the conditions precedent to the performance of LEPAA's obligations under this Agreement by giving LEPAA, at any time prior to Closing, a written waiver specifying the waived condition precedent. 5.4 if any of the conditions precedent to the performance of City's obligations under this Agreement have not been satisfied within the designated time periods or waived by the City, the City may, by giving written notice to CBF, terminate this Agreement. On City's termination, City and LEPAA shall have no further obligations under this Agreement, one to the other. 5.5 The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. ARTICLE VI MISCELLANEOUS 6.1 All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) deposit of, in a regularly maintained receptacle for the United States Mail, postage prepaid, addressed as follows: City Of Lubbock/LEPAA Agreement Page 4 CITY: City Manager City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 (806)775-2016 Fax (806) 775-3307 Ll:Pt1A: Tim Collins, Chairman Lubbock Entertainment & Pcrlbrming Arts Association 1500 Broadway, Suite 1254 Lubbock, Texas 79401 (806)773-5650 6.2 This Agreement is being executed and delivered and is to be pertbrmed in the State of Texas, the lays of 'Texas governing the validity, construction, enforcement and interpretation of this Agreement. This Agreement is performable in. and the exclusive venue liar any action brought with respect hereto, shall lie in Lubbock Count},. Texas. 6.3 "This Agreement embodies the entire at,-reement between the parties and supersedes all prior agreements and understandings. it' ;my. related to the real property, and may be amended or supplemented only in %\rmno executed by the party against whom enforcement is sought. EXECUTED and effective as of tlic date of the execution by the City of Lubbock. CITY OF LUBBOCK, Tl.:XAS GLF C. ROB1 It'TSON, 1\iAYOR ATTEST: Rebm Garza, City Secretary APP VED AS TO CONTENT: LUBBOCK ENTERTAINMENT AND PERFORMING ARTS ASSOCIATION By: =.— I im Nihns. Chairman Lubbock Entertainment and Performing Arts Association, City Of Lubbock/LEPAA Agreement Page 5 APPROVED AS TO FORM: Linda L. Chamales, Economic Development Attorney City Of Lubbock/LEPAA Agreement Page 6 Exhibit "A" The surface only of Lot Two (2), Block One (1) Memorial Center Addition to the City of Lubbock, Lubbock County, Texas, according to the plat and dedication deed for Memorial Center Addition recorded in Volume 1349, pages 521 through 525 of the Deed Records of Lubbock County, Texas. City Of Lubbock/LEPAA Agreement Page 7 EXHIBIT "B" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. DEED WITHOUT WARRANTY STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS That the CITY OF LUBBOCK, a Municipal Corporation of Lubbock, County, Texas (hereinafter called "Grantor"), by virtue of the authority set forth in 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 City Of Lubbock/LEPAA Agreement Page 8 Grantor for the conveyance of the Property by Grantor and that such consideration is sufficient in all respects. PROPERTY (INCLUDING ANY IMPROVEMENTS): The surface only of Lot Two (2), Block One (1) Memorial Center Addition to the City of Lubbock County, Texas, according to the plat and dedication deed for Memorial Center Addition recorded in Volume 1349, pages 521 through 525 of the Deed Records of Lubbock County, Texas. The Property is conveyed to Grantee, and Grantee's successors and assigns under the authority of Texas Local Government Code Section 253.011, 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, "public purpose" of the Grantor shall mean an entertainment and performing arts venue. 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 253.01 ](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. City Of Lubbock/LEPAA Agreement Page 9 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, City Of Lubbock/LEPAA Agreement Page 10 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/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, 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. EXECUTED THIS DAY OF , 20_. GRANTOR: CITY OF LUBBOCK 4 I MAYOR 4�* ATTEST: City Secretary City Of Lubbock/LEPAA Agreement Page 11 APPROVED AS TO CONTENT: APPROVED AS TO FORM: State of Texas County of Lubbo-A § This instrument vlas acknowledged before me on this day of , 20_ by as Mayor of the City of Lubbock. Notary Public, State of Texas My commission expires: By: Name: Title: City Of Lubbock,'LEPAA Agreement Page 12 EXHIBIT "C" SURVEY City Of Lubbock/LEPAA Agreement Page 13 EXHIBIT "D" f SHARED PARKING LEASE AGREEMENT a. This Shared Parking Lease Agreement is between the CITY OF LUBBOCK, a Texas Home Rule Municipality, (hereinafter called LESSOR) and the Lubbock Entertainment and Performing Arts Association, a Texas Nonprofit organization, (hereinafter called LESSEE). I. Subject to the terms and provisions herein, LESSOR hereby leases unto LESSEE for a term of ( ) years beginning , and ending , subject to earlier termination as provided in this Lease Agreement, ( } parking spaces on the following described tract of land (the "Leased Premises"): (property description Civic Center parking lot) II. LESSEE shall pay the sum of ($ ) per month by check or money order to the CITY OF LUBBOCK, P.O. Box 2000, Lubbock, Texas 79457, Attention: Property Manager, payable to LESSOR in advance of the first day of each month with the first payment being due contemporaneously with the execution of this lease. Rent unpaid after the due date (the first day of each month) is delinquent and will constitute a default by LESSEE. If all rent is not paid by the fifth (%) day of the month, LESSEE shall pay the lesser of (i) an initial late charge of $25.00 plus a late fee of $1.00 per day thereafter until all delinquent rent and late charges are paid in full; or (ii) the maximum charge for delinquent payment of rent, allowed by applicable state, federal or local statute, regulation, rule order or ordinance. Daily late charges shall not exceed $25.00 for any single month's rent. IV. The Leased Premises shall be used for the purpose of a parking lot for vehicles as an additional use to the Performing Arts Center operated by LESSEE. LESSEE will restrict the use of the Leased Premises for this purpose, and will not use, or permit the use of, the Leased Premises for any other purpose without first obtaining the consent of LESSOR in writing. 0 City Of Lubbock/LEPAA Agreement Page 14 LESSEE will not commit, or allow to be committed, any waste on the Leased Premises, create or allow any nuisance to exist on the Leased Premises, or use or allow the Leased Premises to be used for any unlawful purpose. VI. LESSOR represents that the Leased Premises are in fit condition for the use as described in Paragraph IV. LESSEE agrees to accept the Leased Premises on possession as being in good state of repair and suitable for such use and purposes. LESSEE agrees to surrender the Leased Premises to LESSOR at the end of the lease term, in the same condition as when LESSEE took possession, allowing for reasonable use and wear. VII. Partial destruction of the Leased Premises shall not terminate this Lease, nor shall it render this lease void or voidable, except as provided in this Lease. Nevertheless, LESSEE may terminate this lease upon five (5) days written notice in the event of partial destruction. Vill. TO THE EXTENT ALLOWED BY LAW, LESSEE HEREBY HOLDS LESSOR HARMLESS, AND INDEMNIFIEDS LESSOR, FROM AND AGAINST ANY AND ALL PAYMENTS, EXPENSES, COSTS, REASONABLE ATTORNEY'S FEES, AND ALL CLAIMS, LIABILITIES, LOSSES OR DAMAGE, INCLUDING WITHOUT LIMITATION, PAYMENTS, EXPENSES, COSTS, REASONABLE ATTORNEY'S FEES, CLAIMS, LIABILITIES, LOSSES OR DAMAGES TO PROPERTY OR INJURIES TO PERSONS, OF ANY KIND OR TYPE, CAUSED WHOLLY OR IN PART BY, RESULTING FROM ANY ACT OR OMISSIONS BY LESSEE OR LESSEE'S CUSTOMERS, GUESTS, LICENSEES, AND/OR INVITEES, UNDER THE TERMS HEREOF OR FOR ANY CAUSE WHATSOEVER ARISING OUT OF, RELATED TO OR BY REASON OF THE USE OR OCCUPATION OF THE LEASED PREMISES BY LESSEE OR LESSEE'S CUSTOMERS, GUESTS, LICENSEES OR INVITEES. Further, LESSEE shall procure and carry throughout the term of this Lease, insurance as specified I Exhibit "A", hereto or shall provide written documentation satisfactory to LESSOR that LESSEE is self insured. IX. No improvements of any kind or type are to be placed on Leased Premises by LESSEE and if they are, they shall be removed immediately at the expense of LESSEE. City Of Lubbock/LEPAA Agreement Page 15 go If LESSEE fails to comply with any conditions and covenants of this Lease, LESSOR may perform these conditions and covenants, at the cost and expense of LESSEE, and the cost of the expense will be added to the next installment of rent and shall be payable by LESSEE as such. M. To the extent allowed by law, all goods and personal property of any kind in or on Leased Premises will be the sole responsibility of LESSEE, and in no event will LESSOR be liable for any loss or damage to these goods or property for any reason whatsoever. MI. This Lease cannot be assigned in whole or in part by LESSEE except upon the express written permission of LESSOR, such consent to be at the sole discretion of LESSOR. XIII. This Lease may be cancelled and terminated by LESSOR for non-payment of rent or failure of LESSEE to keep and perform any of its agreement herein (a "Default"). In the event of a Default, LESSOR shall give notice of the default by providing ten (10) days written notice to LESSEE delivered or mailed to the last known address of LESSEE at 1500 Broadway, Suite 1254, Lubbock, Texas 79401, describing said Default. If the default is continuing at the end of the ten- day period, LESSOR may cancel and terminate the Lease. XIV. Should the use by the City of the Leased Premises become necessary for other City purposes, at LESSOR's discretion, LESSOR may terminate this Lease upon thirty (30) days' written notice to LESSEE. Any prepaid rent will be pro -rated to LESSEE at the time of such termination. M. Parking on the Leased Premises by LESSEE shall be allowed between the hours of and through . Except as expressly authorized herein, LESSEE shall have no rights or privileges to utilize the Leased Premises. XVI. City Of Lubbock/LEPAA Agreement Page 16 If there is a need for LESSOR to utilize all or part of the Leased Premises during the term hereof, LESSOR shall give written notice to LESSEE as soon as LESSOR is aware of the problem, but no later than seven (7) days in advance of the time or times of the City's need to use the Leased Premises, or applicable portion thereof. LESSOR and LESSEE shall meet and attempt to resolve the issue amicably so that both parties are accommodated. If an accommodation cannot be reached, LESSEE shall not occupy the Leased Premises, or the applicable portion thereof for the period of time in the notice. XVII. LESSOR 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, LESSOR shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. EXECUTED on , 20_. CITY OF LUBBOCK MAYOR ATTEST: City Secretary APPROVED AS TO CONTENT APPROVED AS TO FORM: City Attorney LUBBOCK ENTERTAINMENT & PERFORMING ARTS ASSOC. Chairman City Of Lubbock/LEPAA Agreement Page 17 FILED AND RECORDED OFFICIAL PUBLIC RECORDS O 4 Kelly Pinion County Clerk Lubbock County TEXYS 08/01/2017 01:63 PM FEE: $130.00 2017027907