LEASE AND USE AGREEMENT
By and Between
CITY OF DALLAS
By and Through
ITS
PARK AND RECREATION
BOARD
AND
PACE ENTERTAINMENT GROUP, INC.
DATED: December 9, 1987
INDEX
PAGE
----
ARTICLE I - Grant of Lease and Access and Parking Rights
Section 1.01 Leasing Clause ............................. 4
Section 1.02 Grant of Rights in Parking Tract ........... 4
Section 1.03 Time of Use ................................ 7
ARTICLE II - Term
Section 2.01 Term ....................................... 7
Section 2.02 Commencement Date .......................... 7
ARTICLE III - Consideration
Section 3.01 Consideration .............................. 8
Section 3.02 Rental for Initial Lease Year .............. 8
Section 3.03 Rental for Remaining Lease Years ........... 10
Section 3.04 Ticket Sales Rental ........................ 13
Section 3.05 Payments and Accounting .................... 13
Section 3.06 CPI ........................................ 14
ARTICLE IV - Improvements
Section 4.01 Improvements by Pace ....................... 15
Section 4.02 City Improvements .......................... 16
Section 4.03 Approvals Required ......................... 17
Section 4.04 Recognition to the Parks and
Recreation Department ...................... 17
Section 4.05 No Liens ................................... 18
Section 4.06 City Cooperation ........................... 19
Section 4.07 Unforeseen Defects ......................... 19
Section 4.08 Alterations ................................ 20
ARTICLE V - Use of Amphitheatre Tract and Parking Tract
Section 5.01 Use ........................................ 20
Section 5.02 Compliance with Laws ....................... 22
Section 5.03 Repair ..................................... 23
Section 5.04 City's Right to Perform
Pace's Covenants ......................... 24
Section 5.05 Security ................................... 24
Section 5.06 Utilities .................................. 25
ARTICLE VI - Use of Parking Tract
(i)
Section 6.01 Use ........................................ 25
Section 6.02 Maintenance and Repair of
Parking Improvements .................... 25
Section 6.03 Damage or Destruction ...................... 26
Section 6.04 Pace's Right to Perform
City's Covenants ........................ 26
ARTICLE VII - City Use of Amphitheatre
Section 7.01 City Use ................................... 27
Section 7.02 Third Party Use ............................ 28
Section 7.03 Non-Gated Use .............................. 28
Section 7.04 Rights of Subtenants; City
Obligations ............................. 28
ARTICLE VIII - Replacement Parking
Section 8.01 Designation ................................ 29
Section 8.02 Review by Pace ............................. 30
Section 8.03 Resolution ................................. 31
Section 8.04 Dispute as to Exercise of
Reasonable Discretion ..................... 32
Section 8.05 Costs and Expenses ......................... 32
ARTICLE IX - Insurance and Indemnity
Section 9.01 Liability Insurance ........................ 33
Section 9.02 Property Insurance ......................... 33
Section 9.03 Builder's Risk and Bonds ................... 34
Section 9.04 Policies ................................... 34
Section 9.05 Named Insureds; Adjustment
of Losses ................................ 34
Section 9.06 Indemnity of the City ...................... 35
Section 9.07 Indemnity of Pace .......................... 36
ARTICLE X - Assignment and Subletting
Section 10.01 Assignment ................................. 37
Section 10.02 Subletting ................................. 38
Section 10.03 Assumption of Liability .................... 38
Section 10.04 Permitted Mortgagee Provisions ............. 39
ARTICLE XI - Default of Pace
Section 11.01 Events of Default .......................... 44
Section 11.02 Events upon Termination .................... 46
ARTICLE XII - Default of the City
Section 12.01 Defaults ................................... 46
Section 12.02 Remedies ................................... 47
(ii)
ARTICLE XIII - Condemnation and Casualty
Section 13.01 Definitions ................................ 47
Section 13.02 Entire Taking .............................. 48
Section 13.03 Partial Taking ............................. 48
Section 13.04 Temporary Taking ........................... 49
Section 13.05 Condemnation Award ......................... 49
Section 13.06 Consent of Pace and
Permitted Mortgagee ....................... 50
Section 13.07 Casualty ................................... 51
Section 13.08 Proceeds ................................... 51
ARTICLE XIV - Title and Other Warranties
Section 14.01 The City's Warranty of Title ............... 52
Section 14.02 Obligation to Provide Access
and Parking ....................... 52
Section 14.03 Quiet Enjoyment ............................ 53
Section 14.04 City Warranties ............................ 53
Section 14.05 Pace Warranties ............................ 53
ARTICLE XV - Taxes
Section 15.01 Exemption from Taxes ....................... 54
Section 15.02 Pace's Payment of Taxes
if Not Exempt ........................... 54
ARTICLE XVI - Miscellaneous
Section 16.01 Confirmation Letter ........................ 55
Section 16.02 Notices .................................... 55
Section 16.03 Modifications .............................. 56
Section 16.04 Descriptive Headings ....................... 56
Section 16.05 Unavoidable Delay .......................... 57
Section 16.06 Venue ...................................... 57
Section 16.07 Applicable Law ............................. 57
Section 16.08 Interpretation ............................. 57
Section 16.09 Circumstances Under which
Liens Permissible ........................ 58
Section 16.10 Waiver of Landlord's Lien .................. 58
Section 16.11 Conditions Precedent
to Commencement Date .................... 58
Section 16.12 Liaison Committee .......................... 59
Section 16.13 Coordination with Fair Park
General Manager .......................... 59
Section 16.14 Non-Discrimination ......................... 60
Section 16.15 Minority Business
Enterprise ............................... 60
Section 16.16 Partial Invalidity ......................... 60
(iii)
EXHIBIT "A" - Amphitheatre Tract
EXHIBIT "B" - Site Plan
EXHIBIT "C" - Parking Tract
EXHIBIT "D" - Assigned Parking Area
EXHIBIT "E" - Coliseum Lots
LEASE AND USE AGREEMENT
This Lease and Use Agreement (this "Agreement") is entered into as of the
9th day of December, 1987, by and between CITY OF DALLAS, a duly incorporated
and existing city, political subdivision and municipality of the State of
Texas, by and through its PARK AND RECREATION BOARD (collectively, the "City"),
and PACE ENTERTAINMENT GROUP, INC., a Delaware corporation duly authorized to
transact business in the State of Texas ("Pace"), sometimes collectively
referred to as the "Parties" or singularly the "Party."
RECITALS
A. The City is the fee simple owner of a 12.0258 acre tract of land
situated in Dallas County; Texas, being more particularly described on Exhibit
"A", attached hereto and made a part hereof for all purposes (the "Amphitheatre
Tract"), and being depicted on Exhibit "B", attached hereto and made a part
hereof for all purposes (the "Site Plan").
B. The City is the fee simple owner of an approximately 44.8041 acre tract
of land situated in Dallas County, Texas contiguous to the Amphitheatre Tract,
being more particularly described on Exhibit "C", attached hereto and made a
part hereof for all purposes (the "Parking Tract"), and being depicted on the
Site Plan.
C. The Amphitheatre Tract and the Parking Tract are adjacent to and are a
part of the tract of land owned by the City commonly known as "Fair Park", which
land has been the location of the annual State Fair of Texas exposition for many
years.
D. The City and The State Fair of Texas, a Texas nonprofit corporation,
have heretofore entered into an agreement to provide for the enhanced year-round
utilization of Fair Park as an entertainment center, tourist attraction, park
and fair grounds and to provide a location for the annual State Fair of Texas
exposition.
E. The City desires to enhance the public enjoyment of Fair Park by the
creation of an outdoor amphitheatre for the performing arts.
F. The City has determined that such an outdoor amphitheatre for the
performing arts and related parking is an appropriate public park use and is
consistent with the purposes for which the land was acquired and has been used
as well as the present and future utilization of Fair Park as a year-round
entertainment center, tourist attraction, park and fair grounds for the
enjoyment and benefit of the general public.
G. The City has determined that the establishment of an amphitheatre at
Fair Park will benefit the public and increase cultural opportunities for all
residents of the City.
H. The City desires to lease the Amphitheatre Tract to Pace for the
construction of an amphitheatre and related improvements, buildings and
facilities (the "Amphitheatre") designed to accommodate approximately 7,000
persons in its enclosed seating area with lawn seating for an additional 13,000
persons in order to provide a facility for public performances
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that will offer the public such amenities as landscaped grounds, musicians'
dressing and lounge areas, concession stands and catering facilities.
▇. ▇▇▇▇ is willing to construct the Amphitheatre, at its sole cost and
expense, to pay the City a minimum guaranteed rental together with an
inflationary increase, to operate the Amphitheatre for its own use and to make
it available to the City for specified events with the net proceeds thereof
being paid to the City.
J. The City has further determined that additional and substantial
economic benefit will be derived by the South Dallas/Fair Park community through
Pace's additional rental payments to the City for its proposed South Dallas
Economic Development Fund.
K. The City has determined that the Amphitheatre Tract and the Parking
Tract are under the management and control of the Park and Recreation Board and
that the lease of the Amphitheatre Tract and the grant of certain rights in and
to the Parking Tract to Pace is an appropriate use of the property and are duly
authorized pursuant to the provisions of Ch. XVII 4(c)(11) and 4(c)(15) of the
CHARTER of the City of Dallas, Texas and Section 306.038(b) of the Texas Local
Government Code (▇▇▇▇▇▇ 1988 Pamphlet).
▇. ▇▇▇▇ has agreed that Pace will use its best efforts to (1) have its
concessionaires utilize minority vendors and suppliers, (2) have its ticket
distribution sources utilize minority ticket distribution outlets, and (3)
develop an
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employment program designed to provide priority job opportunities for persons
residing adjacent to Fair Park during the periods of construction and
operations.
M. Pursuant to Resolution No. 87-3928, adopted by the City Council and the
Park and Recreation Board of the City of Dallas on December 9, 1987 and the
minutes thereof, the City is authorized to lease the Amphitheatre Tract and
grant certain rights in the Parking Tract for development and use as set forth
herein.
▇. ▇▇▇▇ desires to lease and take from the City the Amphitheatre Tract and
accept from the City the grant of rights in and to the Parking Tract.
ARTICLE I
Grant of Lease and Access and Parking Rights
Section 1.01. Leasing Clause. Upon and subject to the terms, provisions
and conditions hereinafter set forth, the City hereby leases and demises to
Pace, and Pace does hereby take and lease from the City, the Amphitheatre Tract
(hereinafter referred to as the "Leased Premises").
Section 1.02. Grant of Rights in Parking Tract. In order to assure that
adequate and sufficient access to the Amphitheatre and parking space is
available to Pace and the patrons attending events at the Amphitheatre, upon and
subject to the terms, provisions and conditions hereinafter set forth, the City
does hereby assign, create and establish in favor of Pace and its
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successors and assigns, for the purposes and uses set forth herein, the
following rights in and to the City owned and operated Parking Tract and certain
other surface parking lots:
(a) Access. A non-exclusive, irrevocable right to the use at all
times of the Parking Tract for the purpose of vehicular and pedestrian
access to and from the Leased Premises and/or the Assigned Parking Area
(as hereinafter defined) to Pennsylvania Avenue and/or public dedicated
roadways;
(b) Assigned Parking. An exclusive, irrevocable right to the use at
all times of the tract of land (the "Assigned Parking Area") within the
Parking Tract described on Exhibit "D", attached hereto and incorporated
herein by reference for all purposes, and being depicted on the Site Plan;
(c) Parking Tract. On such dates that (i) Pace has notified the Fair
Park General Manager pursuant to the provisions of Section 16.13 that an
entertainment, recreational, cultural or social event is scheduled at the
Amphitheatre and/or (ii) Pace or an Affiliate (as defined in Section
10.01) shall produce or sponsor such an event at the Cotton Bowl, an
exclusive, irrevocable right to use the Parking Tract for the purpose of
parking motor vehicles, together with an exclusive, irrevocable right to
the use of the portions of the Parking Tract designated as driveways,
ramps and accessways for the purposes of vehicular and pedestrian
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access from the Parking Tract to the Leased Premises, Fair Park and/or
other public dedicated roadways, as well as the uses permitted pursuant to
Section 5.01(a) hereof; provided, however, during the approximately
twenty-four (24) days during the month of October of each year that The
State Fair of Texas, Inc. conducts the annual State Fair of Texas
exposition at Fair Park (the "Period of the Fair"), the thirty (30) days
before and fourteen (14) days following the Period of the Fair and on
January 1 of each year, such right to use the Parking Tract shall be
subject to the rights of The State Fair of Texas, Inc. in that certain
Fair Park Contract dated April 20, 1987 by and between the City of Dallas
and The State Fair of Texas, Inc., as amended by that certain First
Amendment to Fair Park Contract executed by the City of Dallas and The
State Fair of Texas, Inc. on or before the Commencement Date (the Fair
Park Contract as amended by the First Amendment to Fair Park Contract
being hereinafter referred to as the "Fair Park Contract")
(d) Coliseum Lots. On such dates that Pace has notified the Fair
Park General Manager pursuant to the provisions of Section 16.13 that a
confirmed entertainment, recreational, cultural or social event is
scheduled at the Amphitheatre and provided that such surface parking lots
have not been theretofore reserved in writing by another Fair Park tenant
with the Fair
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Park General Manager for parking to the extent necessary in connection
with the then confirmed use of another Fair Park facility, an exclusive,
irrevocable right to use those surface parking lots depicted on Exhibit
"E", attached hereto and incorporated herein by reference for all purposes
(the "Coliseum Lots"), for the purpose of parking motor vehicles.
(e) Parking Tract Rights. The rights set forth in subsection (a),
(b), (c) and (d) are collectively hereinafter referred to as the "Parking
Tract Rights".
Section 1.03. Time of Use. On such dates that Pace is entitled to use the
Parking Tract and the Coliseum Lots pursuant to Sections 1.02(c) and (d), such
period of permitted use will be a twenty-four (24) hour period commencing at
6:00 a.m. on the day of the event.
ARTICLE II
Term
Section 2.01. Term. The term of this Agreement shall be for a period
commencing on the Commencement Date (as defined in Section 2.02) and ending on
December 31, 2028. The term of this Agreement is hereinafter referred to as the
"Term".
Section 2.02. Commencement Date. The Term of this Agreement shall commence
on the date on which the last of the conditions precedent set forth in Section
16.11 have been satisfied (the "Commencement Date"). The City and Pace shall
confirm by letter the Commencement Date.
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ARTICLE III
Consideration
Section 3.01. Consideration. In consideration of the mutual obligations
and undertakings described herein and the lease and demise by the City to Pace
of the Leased Premises and the assignment of the Parking Tract Rights, Pace
agrees to construct the Amphitheatre in accordance with the terms and conditions
hereof and to pay the rental hereinafter set forth.
Section 3.02. Rental for Initial Lease Year. Pace shall pay to the City
rental for the Leased Premises and the Parking Tract Rights for the initial
Lease Year (as hereinafter defined) in an amount calculated as follows:
(a) Minimum Guaranteed Rental (herein so called) for the initial
Lease Year shall be the applicable sum set forth below:
(i) if Commencement of Operations (as hereinafter defined)
occurred on or before June 15 of such Lease Year, One Hundred
Thousand and No/l00 Dollars ($100,000.00);
(ii) if Commencement of Operations occurred after June 15 but
on or before July 15 of such Lease Year, Seventy-Five Thousand and
No/l00 Dollars ($75,000.00);
(iii) if Commencement of Operations occurred after July 15 but
on or before August 15 of such Lease Year, Fifty Thousand and No/100
Dollars ($50,000.00); and
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(iv) if Commencement of Operations occurred after August 15 of
such Lease Year, Twenty-Five Thousand and No/l00 Dollars
($25,000.00).
(b) In addition to Minimum Guaranteed Rental, Pace shall also pay to
the City for the Leased Premises and the Parking Tract Rights for the
initial Lease Year, as additional rental (the "Event Rental"), an amount
equal to (i) initial Lease Year event revenues (as hereinafter defined)
for such Lease Year less (ii) Minimum Guaranteed Rental for such Lease
Year. For purposes of this Section 3.02(b) only, the term "initial Lease
Year event revenues" shall mean all revenues actually received by Pace
from paid admission ticket sales from the presentation of the applicable
number of events specified below to be presented for the benefit of the
City at the Amphitheatre pursuant to Section 7.01 during the initial Lease
Year, less all sales and amusement taxes, if applicable, disbursements
made and reasonable and necessary costs incurred (operational or
maintenance) relating to the presentation of such events:
(i) if Commencement of Operations occurred on or before June
15 of such Lease Year, fourteen (14) events;
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(ii) if Commencement of Operations occurred after June 15 but
on or before July 15 of such Lease Year, ten (10) events;
(iii) if Commencement of Operations occurred after July 15 but
on or before August 15 of such Lease Year, seven (7) events; and
(iv) if Commencement of Operations occurred after August 15 of
such Lease Year, three (3) events.
(c) The term "Lease Year" shall mean the period beginning on the
Commencement Date and ending on December 31, 1988 and each subsequent
calendar year thereafter.
(d) The term "Commencement of Operations" shall mean the date the
Amphitheatre shall first be opened to the public for presentation of a
musical or theatrical production.
Section 3.03. Rental for Remaining Lease Years.
(a) Pace shall pay to the City for the Leased Premises and the
Parking Tract Rights Minimum Guaranteed Rental for each of the remaining
Lease Years in the amount for each respective Lease Year as specified
below:
Lease Year Minimum Guaranteed Rental
---------- -------------------------
2 - 4 $150,000.00
5 - 40 $200,000.00
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(b) Pace shall pay to the City for the Leased Premises and the
Parking Tract Rights Minimum Guaranteed Rental for each of the ninth (9th)
through thirteenth (13th) Lease Years in an amount to be determined as of
the commencement of the ninth (9th) Lease Year equal to the sum of (i)
Minimum Guaranteed Rental for the immediately preceding Lease Year plus
(ii) an amount equal to the product of Two Hundred Thousand and No/100
Dollars ($200,000.00) (the "Base Cost") times the increase stated as a
percentage in the CPI (as hereinafter defined) during such eight (8) year
period; provided, however, that for purposes of this Section the increase,
if any, in the CPI during such eight (8) year period shall not exceed
three percent (3%) per year. The term "CPI" shall mean the annual revised
Consumer Price Index for all Urban Consumers (CPI-U) Dallas/Fort Worth
(All Items: 1967 = 100) published by the Bureau of Labor Statistics,
United States Department of Labor. For example, if the increase in the CPI
during the initial eight (8) years of the Term were:
Actual Limited
Year Increase Increase
---- -------- --------
2 2% 2%
3 2% 2%
4 4% 3%
5 1% 1%
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6 3% 3%
7 6% 3%
8 2% 2%
then the percentage increase utilized in calculating Minimum Guaranteed
Rental would be sixteen percent (16%). Accordingly, the Minimum Guaranteed
Rental for the ninth (9th) through the thirteenth (13th) Lease Years would
increase by $32,000.00 ($200,000.00 x 16%) to $232,000.00.
(c) The Minimum Guaranteed Rental for each Lease Year commencing
with the fourteenth (14th) Lease Year and continuing through the remaining
Term shall be adjusted as of the commencement of each 5-year period
thereafter in accordance with the formula set forth in Section 3.03(b);
provided, however, that in applying such formula for adjustment, the Base
Cost shall mean the adjusted Minimum Guaranteed Rental for the immediately
preceding Lease Year.
(d) In addition to Minimum Guaranteed Rental, Pace shall also pay to
the City for the Leased Premises and the Parking Tract Rights for each
Lease Year following the initial Lease Year, as additional rental, Event
Rental equal to (i) Event Revenues (as hereinafter defined) for such Lease
Year less (ii) Minimum Guaranteed Rental for such Lease Year. For purposes
of this Section 3.03(d), the "Event Revenues" shall mean all revenues
actually received by Pace from
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paid admission ticket sales from the presentation of the events to be
presented for the benefit of the City at the Amphitheatre pursuant to
Section 7.01 during such Lease Year, less all sales and amusement taxes,
if applicable, disbursements made and reasonable and necessary costs
incurred (operational or maintenance) relating to the presentation of such
events.
Section 3.04. Ticket Sales Rental. In addition to Minimum Guaranteed
Rental and Event Rental, if applicable, Pace shall also pay to the City for the
Leased Premises and the Parking Tract Rights, as additional rental ("Additional
Rental"), an amount equal to the product obtained by multiplying (a) ten cents
($.10) times (b) the total number of paid admission tickets sold to all public
events at the Amphitheatre, exclusive of the events described in Section 7.01.
It is the intent of Pace and the City that such Additional Rental be used by the
City as a "South Dallas Economic Development Fund" to assist in programs,
activities and improvements in the South Dallas/Fair Park area. Additional
Rental shall be payable on or before the last day of the month following the
month in which the tickets to which such rental is applicable were sold.
Section 3.05. Payments and Accounting. The Minimum Guaranteed Rental and
Event Rental, if applicable, shall be payable on or before the expiration of one
hundred twenty (120) days following the presentation of the last in the series
of events presented for the benefit of the City pursuant to Section 7.01.
Following each of the events, Pace shall prepare
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and deliver to the City a statement of revenues and expenses made with respect
to such event certified by an officer of Pace. Pace shall maintain full and
adequate books of account and other records and shall make the same available to
an authorized representative of the City reflecting the results of the events
and all transactions pertaining to revenues and expenses. All such records shall
be retained and preserved for at least three (3) years following the event to
which they relate. In the event the City is not satisfied with the statements of
revenues and expenses submitted by Pace, Pace shall accord to the accountants,
employers, agents and attorneys of the City, at the expense of the city, the
right to conduct an audit of such records with respect to transactions
pertaining to revenues and expenses. Pace shall promptly pay to the City any
deficiency or the City shall promptly refund to Pace any overpayment, as the
case may be, which is established by such audit.
Section 3.06. CPI. In the event that (a) the Bureau of Labor Statistics
ceases to use the 1967 average of 100 as the basis of calculation, (b) a
substantial change is made in the number or character of "market basket" items
used in determining the CPI, (c) the City and Pace mutually agree in writing
that the CPI does not accurately reflect the purchasing power of the dollar, or
(d) the CPI shall be discontinued for any reason, the Bureau of Labor Statistics
shall be requested to furnish a new index comparable to the CPI together with
information which will make possible the conversation to the new index in
computing the adjusted rental. If for any reason the Bureau of Labor
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Statistics does not furnish such an index and such information, the Parties
shall thereafter accept and use such other index or comparable statistics on the
cost of living for Dallas County, Texas, as shall be computed and published by
an agency of the United States or by a responsible financial periodical of
recognized authority then to be selected by the City and Pace.
ARTICLE IV
Improvements
Section 4.01. Improvements by Pace.
(a) Pace covenants and agrees that, commencing on the Commencement
Date, it will, subject to the provisions of this Article IV, undertake and
diligently pursue to completion the construction of, and installation of
appropriate equipment for, the Amphitheatre.
(b) Pace covenants and agrees that the construction of the
Amphitheatre shall be commenced (the "Construction Commencement Date") on
or before the expiration of one hundred eighty (180) days from the
Commencement Date. For purposes hereof, commencement of construction shall
be deemed to have occurred upon the commencement of site preparation work
upon the Leased Premises and the execution of a properly bonded
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general construction contract for the Amphitheatre. Pace shall confirm by
letter to the City the commencement of construction.
Section 4.02. City Improvements. Provided that the total construction cost
to the City shall not exceed $3,500,000.00, the City covenants as follows:
(a) the City shall, at its sole cost and expense, construct a
fully-paved parking lot with drainage, striping and lighting on the
Parking Tract. The City shall, at its sole cost and expense, provide a
security fence around the entire perimeter of the Parking Tract and the
Leased Premises.
(b) the City, at its sole cost and expense, shall also provide for a
separate V.I.P. designated parking area immediately adjacent to the
Amphitheatre within the Assigned Parking Area with fencing, lighting and
landscaping of an enhanced quality.
(c) the City further agrees that it shall, at its sole cost and
expense, be responsible for all utility relocations, connections and
street alignments required in connection with the improvement of the
Parking Tract. The City may choose to install retaining walls at the rear
of the Amphitheatre berm instead of moving or re-aligning the area
formerly designated as Pennsylvania Avenue and the utilities adjacent
thereto or elsewhere within the Parking Tract.
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(d) the City acknowledges that time is of the essence and covenants
and agrees that it will commence construction on or before the expiration
of thirty (30) days, as such date may be extended in order to afford the
City the time period necessary for compliance with state bid laws,
following the Construction Commencement Date and diligently pursue to
completion the construction of all items described in Section 4.02 (the
"Parking Improvements"). For purposes hereof, commencement of construction
shall be deemed to have occurred upon the award by the City of a general
construction contract for the Parking Improvements.
Section 4.03. Approvals Required. Any construction of the Amphitheatre
by Pace and the Parking Improvements by the City shall be in substantial
accordance with plans, including, without limitation, lighting plans,
landscaping plans and parking plans, prepared by Pace and approved by the Park
and Recreation Board, which approval shall not be unreasonably withheld or
delayed.
Section 4.04. Recognition to the Parks and Recreation Department. Pace
covenants and agrees that Pace shall install signage on the Leased Premises of a
design and in a location mutually acceptable to Pace and the City, which signage
shall contain a designation similar to the following: "This facility is
developed in cooperation with the ▇▇▇▇▇▇ ▇▇▇▇▇ and Recreation Department."
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Section 4.05. No Liens. Pace covenants and agrees that any building and
other improvements constructed on the Leased Premises shall be completed free
and clear of all liens and claims of any person, excepting any Permitted
Mortgage (as hereinafter defined) expressly permitted under the terms hereof,
which Permitted Mortgage shall expire upon the expiration of the Term; provided,
however, that Pace shall have the right in good faith to contest any and all
bills, fees and claims, being obligated to pay the contested item only if and
when liability is established against Pace or against the Leased Premises and
provided, further, that Pace shall bond any such liens in the event any claimant
seeks to foreclose any such lien. Pace covenants and agrees to protect,
indemnify, defend and hold harmless the City and the City's interests in the
Leased Premises from any and all bills and claims, liens and rights to liens for
laborers and materials and architects', contractors' and subcontractors' claims,
and all other fees, claims and expenses incident to the construction and
completion of any buildings or any other improvements constructed on the Leased
Premises and to provide such bonds as are required pursuant to Section 9.03.
Pace shall conform to and observe all laws and ordinances, rules and regulations
affecting such construction; provided, however, Pace shall have the right in
good faith to contest any such law, ordinance, rule or regulation. The term
"Permitted Mortgagee" shall mean the holder of a mortgage (a "Permitted
Mortgage") of
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this Lease (which may include Pace's interest as lessee in any present or future
leases and any other interest of Pace in any personal property upon the Leased
Premises).
Section 4.06. City Cooperation. The City agrees to cooperate with Pace in
expediting and obtaining all necessary zoning classification changes or
variances, special use permits, amendments to noise ordinances, alcoholic
beverage permits, building permits, certificates of occupancy and other licenses
and permits relating to the construction and operation of the Amphitheatre,
provided, however, nothing herein constitutes a waiver by the City of its
governmental powers or authority or a guarantee by the City that such matters
can be accomplished to Pace's satisfaction.
Section 4.07. Unforeseen Defects. In the event that prior to or during the
period of construction of the Amphitheatre, Pace discovers any unknown or
unforeseen subsurface defect or circumstance (it being agreed that subsurface
soil conditions shall not be considered such a defect or circumstance) existing
with respect to the Leased Premises, Pace shall be entitled to (i) redesign the
Amphitheatre so that the total cost of developing the Amphitheatre and curing or
satisfying such defect or circumstance shall equal the total project cost for
developing the Amphitheatre originally contemplated by Pace (approximately
$8,500,000.00), (ii) submit such redesigned plans to the Park and Recreation
Board for its approval, which approval shall not be unreasonably withheld or
delayed and (iii) thereafter, the obligation of Pace pursuant to Section 4.01
shall be to construct
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the Amphitheatre pursuant to such redesigned approved plans. In the event Pace
is unable to accomplish such redesign in (i) above such that the Amphitheatre
cannot be practically or economically used or the Park and Recreation Board
fails to approve the redesigned plans, Pace shall have the option to (i)
terminate this Agreement by written notice to the City, (ii) construct on the
Leased Premises improvements substantially equal to the Parking Improvements and
(iii) thereafter, the Parties hereto will have no further liability hereunder
one to the other.
Section 4.08. Alteration. Pace shall be entitled from time to time to
alter, add to, demolish, reconstruct or remodel the Amphitheatre so long as the
same does not materially adversely affect the utility of the Amphitheatre
facilities or the exterior appearance thereof. Any other alteration, addition,
demolition, reconstruction or remodeling shall require the prior written
approval of the Park and Recreation Board, which approval shall not be
unreasonably withheld or delayed.
ARTICLE V
Use of Amphitheatre Tract
and Parking Tract
Section 5.01. Use.
(a) Pace shall have the right to use the Leased Premises for the
purpose of providing, developing, maintaining, operating, improving,
repairing and rebuilding the Amphitheatre for entertainment, recreational,
cultural and social uses together with
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food and beverage service and retail and commercial uses normally
associated with or customarily available in entertainment or amusement
facilities similar to the Amphitheatre, such as Six Flags Over Texas and
Reunion Arena, including, without limitation, souvenir, gift and novelty
retail establishments, box office and sponsor services. Further, Pace
shall have the right to use the Leased Premises for such other uses as
shall be approved in advance in writing by the City. Pace shall be
entitled to charge such admission fees, parking charges and other fees as
it may from time to time determine and retain such funds for its own use,
subject only to the rental requirements described in Article III herein.
(b) Pace shall have the right to use the Parking Tract solely for
the purposes of (i) parking of motor vehicles, (ii) pedestrian and
vehicular ingress and egress to and from the Leased Premises, the Assigned
Parking Area, Fair Park and/or other public dedicated roadways, and (iii)
the other uses permitted on the Leased Premises pursuant to Section
5.01(a) within the Amphitheatre by Pace and its successors, assigns,
agents, contractors, tenants, concessionaires, licensees, employees,
customers, guests, patrons and invitees and the agents, contractors,
employees, customers, guests, patrons and invitees of the tenants,
concessionaires and licensees of Pace, its successors
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and assigns. Pace shall be entitled to charge such admission fees, parking
charges and other fees as it may from time to time determine and retain
such funds for its own use, subject only to the rental requirements
described in Article III herein.
Section 5.02. Compliance with Laws. Pace agrees not to use the Leased
Premises or any building situated thereon or on any part thereof for any use or
purpose in violation of any valid and applicable law, regulation or ordinance of
the United States, the State of Texas, the City of Dallas, or other lawful
authority having jurisdiction over the Leased Premises. Notwithstanding the
foregoing, however, the Parties acknowledge their sensitivity to the issue of
sound emissions, with the City desiring the operation of the Amphitheatre in a
manner that will not create undue noise interference with the enjoyment of
adjoining property and which operation the City believes will be satisfied by
Pace's compliance with regulations limiting sound emissions promulgated in the
Dallas Development Code as they exist on the Commencement Date and with Pace
agreeing to comply with such current regulations. Pace recognizes the
legislative power of the City to enact and enforce appropriate noise regulations
to protect the public welfare. Because of this recognized importance to Pace
that regulations limiting sound emissions applicable to Pace's operation of the
Amphitheatre not be made more restrictive, the City asserts that it is its
present intent not to impose upon Pace in connection with its operation of the
Amphitheatre regulations limiting sound emissions more restrictive than those
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existing on the Commencement Date, the City believing that the current and
revised regulations are reasonable and appropriate. The City further agrees, in
its capacity as landlord, that, so long as neither the City nor the Leased
Premises will be subjected to any liability, penalty or forfeiture, Pace may at
its sole cost and expense, and in its own name, contest the validity or
applicability of any such law, regulation or ordinance and may defer its
compliance therewith during the pendency of such contest only for such time as
enforcement of such law is stayed by valid court order.
Section 5.03. Repair. As of the Commencement Date, Pace accepts the Leased
Premises as suitable for its intended use. Pace shall keep any improvement or
building that from time to time may be on the Leased Premises in a reasonably
good state of repair, shall be responsible for the active upkeep, maintenance,
sanitation and good appearance of the Leased Premises and shall keep the grounds
of the Leased Premises free of trash, rubbish and fire hazards, and upon the
termination of this Agreement, Pace shall deliver up the Leased Premises and all
buildings and improvements then situated thereon in good condition, reasonable
wear and tear and casualty excepted, and said buildings and improvements shall
become the property of the City; provided, however, furniture, furnishings,
trade fixtures, machinery, business equipment or other movable personal property
installed
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in any space occupied by Pace or any subtenant shall not be deemed to be
included as part of the building and may be removed at or prior to the
expiration of the Term of this Agreement.
Section 5.04. City's Right to Perform Pace's Covenants. If Pace defaults
in the performance of any of its covenants, obligations or agreements contained
in this Agreement, other than the obligation to pay rent, the City, after
written notice to Pace and any Permitted Mortgagee, within the time periods
provided elsewhere in this Agreement, specifying such default (or shorter notice
if any emergency exists), may (but without any obligation so to do), after the
expiration of such notice period, perform the same for the account and at the
expense of Pace, and the amount of any payment made shall be payable by Pace to
the City within forty-five (45) days after demand therefor, and if not so paid,
such amount with interest thereon at the rate of ten percent (10%) per annum
from the due date until paid and reasonable attorneys' fees, if awarded by a
court, shall be payable by Pace to the City and may be treated, at the City's
option, as a monetary default hereunder pursuant to Section 11.01.
Section 5.05. Security. Pace may install landscaping, fences, walls or
other screening as Pace reasonably finds appropriate in order to secure the
Leased Premises. All costs of security personnel incurred in connection with the
use of the Amphitheatre shall be paid by Pace.
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Section 5.06. Utilities. Pace agrees that any water or sewer lines
constructed shall be connected to governmentally approved water and sewer
systems. All costs of utility usage shall be paid by Pace.
ARTICLE VI
Use of Parking Tract
Section 6.01. Use. The City hereby agrees that, throughout the Term, the
Parking Tract will be used solely for lawful purposes. The City shall comply
with all laws applicable to the Parking Tract; provided that the City shall have
the right, in good faith, at its sole cost and expense, and in its own name, to
contest the validity or applicability of any law, and may defer its compliance
therewith during the pendency of such contest only for such time as enforcement
of such law is stayed by valid court order.
Section 6.02. Maintenance and Repair of Parking Improvements. Except as
set forth in the following sentence, the City covenants to keep in clean
condition and to perform or cause to be performed all maintenance, repairs and
replacements including, but not limited to, painting, restriping, re-paving and
other repairs, to the Parking Improvements, in order to keep the same at all
times in reasonably good condition, such maintenance to include, but not be
limited to, maintaining the surface, removing all papers, debris, filth and
refuse and thoroughly sweeping the area, placing, keeping in repair, and
replacing any necessary directional signs, striping, markers and
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lines, operating, keeping in repair and replacing, when necessary, lighting
facilities, maintaining all perimeter walls in good condition, and maintaining
and replacing as necessary all landscaping. Notwithstanding the foregoing,
however, after each use of the Parking Improvements by Pace pursuant to Section
1.02(c), Pace covenants to clean the Parking Improvements, including, but not
limited to, removing all papers, debris, filth and refuse and thoroughly
sweeping the area.
Section 6.03. Damage or Destruction. The City shall promptly commence to
completely repair and restore, and shall repair and restore any damage or
destruction at its sole cost and expense, to substantially the same condition
existing immediately prior to the casualty and pursue such repair and
restoration with diligence and continuity to completion, subject, however, to
the terms of this Agreement. Any proceeds of insurance policies payable with
respect to, and attributable to, such damage or destruction which are reasonably
necessary for the repair or restoration of the Parking Improvements shall be
paid first for the costs and expenses of repair and restoration of the Parking
Improvements and any excess proceeds shall be paid the City to be used for any
lawful purpose.
Section 6.04. Pace's Right to Perform City's Covenants. If the City
defaults in the performance of any of its covenants, obligations or agreements
contained in this Agreement, Pace, after written notice to the City, within the
time period provided elsewhere in this Agreement specifying such default (or
shorter notice if any emergency exists), may (but without any obligation
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so to do), after the expiration of such notice period, perform the same for the
account and at the expense of the City, and shall file a written claim with the
City seeking payment and the amount of any payment made shall be payable by the
City to Pace within forty-five (45) days after the filing of such claim, and if
not so paid, such amount with interest thereon at the rate of ten percent (10%)
per annum from the due date until paid and reasonable attorneys' fees, if
awarded by a court, shall be payable by the City to Pace or at Pace's option,
Pace may deduct the amount of any payment made and interest accrued thereon
from and offset such amounts against amounts due under this Agreement as Minimum
Guaranteed Rental, Event Rental, Additional Rental, or any other sum payable by
Pace to the City hereunder.
ARTICLE VII
City Use of Amphitheatre
Section 7.01. City Use. Pace agrees that the City shall have the right to
use the Amphitheatre, free of any rent, from time to time on such dates as may
be approved by Pace, but not to exceed fourteen (14) events during each Lease
Year; provided, however, that during the initial Lease Year, such maximum number
of dates shall be as specified in Section 3.02(b). It is the intent of the
parties that Pace and the City shall jointly select the dates to be utilized for
the City's benefit as well as the nature of the program and event to occur on
such dates, which joint selection process shall also pertain to the third party
use
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contemplated in Section 7.02. It is further provided that Pace shall be
responsible for the production and presentation of such events.
Section 7.02. Third Party Use. The City and Pace agree that the City with
the approval of Pace may designate that a third party non-profit organization
may use one or more of the fourteen (14) dates for the benefit of such
organization. In such event, the Event Revenues (as defined in Sections 3.02(b)
and 3.03(d) shall be payable by Pace to such third party organization; provided,
however, that all payments of Event Revenue to such third party organization by
Pace shall be deemed to be Event Rental paid to the City.
Section 7.03. Non-Gated Use. In addition to the events described in
Section 7.01, Pace acknowledges that upon written request by the City at least
thirty (30) days prior to the requested use date, Pace shall from time to time
during the term of this Agreement permit the further use by the City of the
Amphitheatre or a portion thereof for non-gated, non-profit events; provided,
however, that Pace has not otherwise scheduled or is not then currently
expecting scheduling an event for the Leased Premises or otherwise contracted
with others for the use of the Amphitheatre or such portion thereof for such
time as the City shall have requested use of the Amphitheatre or such portion
thereof.
Section 7.04. Rights of Subtenants; City Obligations. The City agrees that
its use, or the use of any third party organizations, as contemplated herein,
shall be subject to the
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rights of Pace's subtenants and with respect to any use of the Amphitheatre
pursuant to Section 7.03, the City shall pay or perform all obligations of Pace
set forth herein or any other reasonable and necessary direct event expenses
paid or incurred with respect to the use of such Amphitheatre (except the
payment of rental), and should Pace otherwise perform such payment or
performance obligations (such as utility services billed to and paid by Pace),
any amounts paid by Pace shall be reimbursed to Pace by the City within
forty-five (45) days after the filing of a written claim with the City, or if
not so paid, may be, at Pace's option, deducted from and offset against amounts
due under this Agreement as Minimum Guaranteed Rental, Event Rental, Additional
Rental, or any other sum payable by Pace to the City hereunder.
ARTICLE VIII
Replacement Parking
Section 8.01. Designation. The City and Pace acknowledge that the City may
desire to reconfigure or relocate a portion of the Parking Improvements or
Parking Tract. The parties agree, therefore, that from time to time during the
Term of this Agreement, the City may submit to Pace, at the City's expense, a
written notice (the "Relocation Request") setting forth the City's request that
this Agreement be modified and amended in order to reflect that a portion of the
Parking Improvements or Parking Tract is reconfigured or relocated in a manner
as specifically described in the Relocation Request. The Relocation
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Request shall be accompanied by (i) if the Relocation Request involves a
relocation to another area not on the Site Plan, a current survey of the land to
be covered by this Agreement in the event of the implementation of the
Relocation Request, which survey shall be reasonably satisfactory to Pace, (ii)
site plans prepared by an engineer indicating one or more possible parking
configurations on the land to be covered by this Agreement in the event of the
implementations of the Relocation Request, and (iii) the proposed document
amending this Agreement.
Section 8.02. Review by Pace. Pace shall have a period of sixty (60) days
(the "Request Review Period") following receipt of the Relocation Request and
the documents required to accompany same in which to notify the City in writing
whether Pace agrees to the modification and amendment proposed in the Relocation
Request, which agreement shall not be unreasonably withheld by Pace. Pace shall
agree to any proposed Relocation Request that (a) provides for a new location
that at its farthest point is no further than 2,500 feet from the nearest ticket
entrance to the Amphitheatre, (b) provides for a new location that reconfigures
or relocates, when considered with any and all previous Relocation Requests
approved by Pace, not in excess of fifty percent (50%) of the land covered by
this Agreement upon which parking facilities have been constructed, (c) provides
for a new location within the boundaries of Fair Park as of the date hereof
which is usable for parking taking into account encumbrances, physical
characteristics and public or private restrictions, (d) provides for a new
location containing sufficient space to
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accommodate the number of parking spaces accommodated by the land previously
used for parking, and (e) provides for a new location that has adequate access
to and from public roads and all of the Amphitheatre's entrances (collectively,
the "Approval Requirements"). In the event Pace shall not agree to the
modification and amendment proposed in the Relocation Request and the City
asserts that such agreement was unreasonably withheld, the City shall have a
period of thirty (30) days after receipt of such written notice from Pace to
give written notice to Pace of such assertion.
Section 8.03. Resolution.
(a) In the event Pace agrees to the modification and amendment
proposed in the Relocation Request, the City may, at the City's expense,
forthwith construct within the land to be covered by this Agreement upon
the implementation of the Relocation Request improvements substantially
similar to those constructed by the City upon the land in accordance with
plans submitted to the City by Pace and, upon completion of construction
of such improvements to Pace's reasonable satisfaction, the City and Pace
shall execute and deliver the modification and amendment to that
Agreement, contemplated in the Relocation Request.
(b) In the event Pace does not agree to the modification and
amendment proposed in the Relocation Request and a court of final
jurisdiction shall determine that Pace acted unreasonably in its decision
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not to agree to the Relocation Request, the City may, at its expense,
forthwith construct within the land to be covered by this Agreement upon
the implementation of the Relocation Request improvements substantially
similar to those initially constructed for Pace and, upon completion of
construction of such improvements to Pace's reasonable satisfaction, the
Parties shall execute and deliver the modification and amendment to the
Agreement contemplated in the Relocation Request.
Section 8.04. Dispute as to Exercise of Reasonable Discretion.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall the City have the right to terminate or forfeit this Agreement,
dispossess Pace from its use and occupancy of the land pursuant to this
Agreement, or exercise any other remedy available to it, in law or in equity, by
reason of the failure of Pace to exercise reasonable discretion in determining
whether to agree to a Relocation Request (as defined in Section 8.01), it being
agreed that the sole and exclusive remedy of the City for Pace's failing to
exercise reasonable discretion shall be to require Pace to consummate the
modification and amendment proposed in the Relocation Request and to seek the
award by a court of court costs and reasonable attorneys' fees incurred in
connection with such litigation.
Section 8.05. Costs and Expenses. All reasonable and necessary costs and
expenses incurred by Pace (a) in connection with its review of the Relocation
Request, (b) if agreed to without resort to litigation, implementation of the
Relocation
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Request, including, without limitation, surveyors' and engineers' fees, and (c)
court costs and reasonable attorneys' fees if awarded by a court in connection
with litigation pertaining to such matter, shall be reimbursed by the City to
Pace upon demand, and, if the same is not so promptly reimbursed, may be
deducted from and offset against amounts due under this Agreement as rental or
any other sum payable by Pace to the City hereunder.
ARTICLE IX
insurance and Indemnity
Section 9.01. Liability Insurance. Pace agrees, at Pace's expense, to
obtain and maintain public liability insurance at all times during the Term with
responsible insurance companies, legally authorized to transact business in the
State of Texas, with limits, which limits may be increased upon the mutual
agreement of the Parties, of at least $300,000 for one person and at least
$1,000,000 ($5,000,000 if available at a reasonable cost as determined in Pace's
sole discretion) for one accident for personal injury to or death of any person
or persons and at least $100,000 property damages, protecting the City, as an
additional named insured, and Pace against any liability, damage, claim or
demand in any way arising out of or connected with the condition or use of the
Leased Premises.
Section 9.02. Property Insurance. At all times during the Term of this
Agreement, Pace shall at its expense keep all buildings and structures from time
to time on the Leased Premises insured against loss or damage by fire, with
extended coverage (if obtainable), to include direct loss by fire, windstorm,
hail,
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explosion (other than boiler explosion), riot, civil commotion, aircraft,
vehicles and smoke, in an amount equal to eighty percent (80%) of the
replacement value thereof, with responsible insurance companies legally,
authorized to transact business in the State of Texas. The City shall be named
therein as an additional named insured as its interest may appear.
Section 9.03. Builder's Risk and Bonds. During all periods of construction
of improvements on the Leased Premises, Pace shall maintain, or cause to be
maintained, Builder's Risk Insurance in such amounts as Pace shall reasonably
determine. Pace further agrees to require that each of its contractors provide,
with respect to such construction, statutory payment and performance bonds as
required for the construction of public facilities, with Pace and the City each
named therein as obligees.
Section 9.04. Policies. All insurance policies shall provide for at least
fifteen (15) days' written notice to the City before cancellation and copies of
certificates of policies of insurance shall be delivered to the City. If any
blanket general insurance policy of Pace complies with the terms of these
provisions, the naming of the City therein as an additional named insured shall
be deemed compliance with the requirements for the insurance coverage provided
in any such blanket policy.
Section 9.05. Named Insureds; Adjustment of Losses. At the request of
Pace, any Permitted Mortgagee may be named as an insured under any of said
insurance policies required under this Article IX, as its interest may appear.
Any loss under any such
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insurance policy required hereunder may be adjusted with and approved by Pace
and a Permitted Mortgagee, if any, or if there is no Permitted Mortgagee, then
by (a) Pace in absence of any default hereunder or (b) by Pace and the City in
the case of the existence of an event of default or with respect to a loss
occurring during the last ten (10) years of the Term. All proceeds under such
policy shall be paid to Pace and the Permitted Mortgagee, as their interests may
appear.
Section 9.06. Indemnity of the City. During the Term of this Agreement and
except arising out of or occurring solely in connection with the use and
occupancy of the Leased Premises, Parking Tract or Coliseum Lots by the City or
any third party organization designated by the City pursuant to the provisions
of Article VII, the City shall not be liable to Pace or Pace's employees,
agents, subtenants, contractors or visitors, or any other person whatsoever, and
Pace will indemnify, defend and save harmless the City of and from all fines,
suits, claims, demands, losses and actions (including reasonable attorneys' fees
if awarded by a court) for any injury to persons or damage to or loss of
property on or about the Leased Premises, and the Parking Tract and Coliseum
Lots when used in connection with the exercise of Pace's Parking Tract Rights,
caused by the negligence or misconduct of, or breach of this Agreement by Pace,
its employees, contractors, agents or subtenants, or arising out of Pace's
negligent use of the Leased Premises, Parking Tract or Coliseum Lots.
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Section 9.07. Indemnity of Pace. During the Term of this Agreement, and
except arising out of or occurring solely in connection with the use and
occupancy of the Parking Tract or Coliseum Lots pursuant to the exercise of
Pace's Parking Tract Rights, Pace shall not be liable to the City or the City's
employees, agents, subtenants, contractors or visitors, or any other person
whatsoever, and the City will indemnify, defend and save harmless Pace of and
from all fines, suits, claims, demands, losses and actions (including reasonable
attorneys' fees if awarded by a court) for any injury to persons or damage to or
loss of property on or about (a) the Parking Tract or Coliseum Lots caused by
the negligence or misconduct of, or breach of this Agreement by the City, its
employees, contractors, agents or subtenants, or arising out of the City's
negligent use of the Parking Tract or Coliseum Lots and (b) the Leased Premises,
Parking Tract or Coliseum Lots, when used by the City or a third party
organization designated by the City in connection with the rights granted
pursuant to Article VII, caused by the negligence or misconduct of the City,
such third party designee or their employees, contractors, agents or subtenants,
or arising out of the negligent use of the Leased Premises, Parking Tract or
Coliseum Lots by the City or such third party designee.
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ARTICLE X
Assignment and Subletting
Section 10.01. Assignment. Except as otherwise expressly provided herein,
Pace may assign this Agreement only upon the prior written consent of the City,
which consent shall not be unreasonably withheld or delayed; provided, however,
no consent of the City shall be required for an assignment of this Agreement by
Pace to an Affiliate, a Permitted Assignee or an Affiliate of a Permitted
Assignee. As used herein, the term "Permitted Assignee" shall mean any venture,
partnership, corporation or other business arrangement created by Pace or an
Affiliate and a third party to provide for or in order to obtain sufficient
capital to develop, construct, complete, own and operate the buildings and
improvements located on the Leased Premises. Pace may, without any consent of
the City, collaterally assign to a Permitted Mortgagee this Agreement or any
part thereof, or the interest of Pace in any sublease or rentals thereunder, or
mortgage, pledge, encumber, assign or transfer collaterally its interest
therein; provided, that Pace or the Permitted Mortgagee shall promptly deliver
to the City in the manner herein provided for the giving of notice to `the City,
a true copy of the Permitted Mortgage and of any assignment thereof and shall
notify the City of the address of the Permitted Mortgagee to which notices may
be sent. The term "Affiliate" shall mean (a) any natural person, corporation,
partnership, association or other legal entity owning or controlling at least
fifty percent (50%) of the voting interest in Pace; (b) any corporation,
partnership,
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association or other legal entity of which at least fifty percent (50%) of the
voting interest is owned by Pace or one or more of the persons or entities
referred to in (a); and (c) any natural person, corporation, partnership,
association or other legal entity controlling, controlled by or under common
control with Pace or one or more of the persons or entities referred to in (a)
or (b). For purposes hereof, "control" and words of similar import shall mean
the power to vote or direct the vote of at least fifty percent (50%) of the
shares or other evidences of beneficial ownership.
Section 10.02. Subletting. Pace shall have the right to sublease any
separate or segregated parcel of the Leased Premises or space in any building
upon the Leased Premises, but only for purposes of providing food, beverage,
parking, novelties or other merchandise concessions; it being understood and
agreed that each sublease shall be subject and subordinate to this Agreement and
the rights of the City hereunder. The term "subtenant" shall mean any tenant,
licensee or other occupant of space in any of the buildings located on the
Leased Premises holding under Pace (other than Pace) for a period longer than
twenty-four (24) hours; and the term "sublease" shall mean any lease or other
agreement for the use or occupancy of any such space for a period longer than
twenty-four (24) hours.
Section 10.03. Assumption of Liability. Each and every assignee, whether
as assignee or as successor in interest of any assignee of Pace, or as assignee
of any Permitted Mortgagee, or as successor in interest of any assignee,
including any purchaser
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of this Agreement under a foreclosure of any mortgage on this Agreement, shall,
immediately be and become and remain liable for the payment of rental,
additional rent and other charges payable under this Agreement accruing from and
after the date of such assignment or acquisition, and for the due performance of
all the covenants, agreements, terms and provisions of this Agreement, on Pace's
part to be performed accruing from and after the date of such assignment or
acquisition, and each and every provision of this Agreement applicable to Pace
prior to such assignment shall also apply to and bind every such assignee and
purchaser with the same force and effect as though such assignee or purchaser
were the original lessee named in this Agreement, and, effective as of the date
of such assignment, Pace or any subsequent assignee of Pace or its assigns,
shall be released and discharged from all duties or obligations to the City
incurred thereafter in connection with or arising from this Agreement; provided,
however, Pace shall not be so released and discharged in the event of an
assignment to an Affiliate unless the City shall have theretofore consented to
such assignment.
Section 10.04. Permitted Mortgagee Provisions.
(a) In the event of any default by Pace under the provisions of this
Agreement, each Permitted Mortgagee will have concurrent grace periods (i)
the same as are given Pace for remedying such default or causing it to be
remedied plus (ii) after the expiration thereof or after the City has
served a copy of a notice of such default upon such Permitted Mortgagee,
whichever is
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later, an additional period of ten (10) days in the event of a monetary
default and twenty (20) days in the event of any non-monetary default (the
"Cure Period").
(b) If Pace shall default under any of the provisions of this
Agreement, each Permitted Mortgagee, without prejudice to its rights
against Pace, shall have the right to cure such default within the Cure
Period whether the same consists of the failure to pay rent or the failure
to perform any other matter or thing which Pace is hereby required to do
or perform, and the City shall accept such performance on the part of any
Permitted Mortgagee as though the same had been done or performed by Pace,
and for such purpose the City and Pace hereby authorize any Permitted
Mortgagee to enter upon the Leased Premises and Parking Tract and to
exercise any of Pace's rights and powers under this Agreement.
(c) If there is a default under this Agreement, the City shall not
terminate or take any action to effect a termination of this Agreement or
reenter, take possession of or relet the Leased Premises or similarly
enforce performance of this Agreement in any manner if within the Cure
Period any Permitted Mortgagee either (i) cures such default, or (ii) if
such default cannot reasonably be cured within the Cure Period, promptly
commences and then proceeds with reasonable diligence to cure such
default; or (iii) if physical possession
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of the Leased Premises is required to cure such default, promptly
commences and then proceeds with reasonable diligence to acquire the
interest of Pace by foreclosure or otherwise and thereafter performs all
other obligations of Pace under this Agreement. The provisions of the
prior sentence shall apply only if any Permitted Mortgagee shall have
fully cured any default in the payment of any monetary obligation of Pace
within the Cure Period and shall continue to pay currently such monetary
obligations as and when the same are due. After gaining possession of the
Leased Premises any such Permitted Mortgagee shall perform all other
obligations of Pace hereunder as and when the same are due and shall agree
in writing to be bound as Pace under this Agreement. Notwithstanding the
foregoing, however, in the event the default under the Agreement is in the
performance of Pace's obligation to cause to be produced and presented the
events for the benefit of the City pursuant to Section 7.01, the City may
(but without any obligation to do so) elect, during such period that the
Permitted Mortgagee is proceeding to acquire the interest of Pace in the
Leased Premises by foreclosure or otherwise, to enter upon the Leased
Premises and operate the Amphitheatre and, if the City so elects, shall be
entitled to continue such operation
-41-
until the December 31 following the acquisition of the interest of Pace by
the Permitted Mortgagee by foreclosure or otherwise.
(d) If any Permitted Mortgagee is prohibited by any process or
injunction issued by any court or by reason of any action by any court
having jurisdiction of any bankruptcy or insolvency proceeding involving
Pace or the Leased Premises from commencing or prosecuting foreclosure or
other appropriate proceedings in the nature thereof, the Permitted
Mortgagee's cure period specified above for commencing or prosecuting such
foreclosure or other proceedings shall be extended for the period of such
prohibition; provided, however, that any applicable Permitted Mortgagee
shall have fully cured any default of payment of any monetary obligations
of Pace under this Agreement and shall continue to pay currently such
monetary obligations as and when the same fall due. Notwithstanding the
foregoing, however, in the event the default under the Agreement is in the
performance of Pace's obligation to cause to be produced and presented the
events for the benefit of the City pursuant to Section 7.01, the City may
(but without any obligation to do so) elect, during such period that the
Permitted Mortgagee is proceeding to acquire the interest of Pace in the
Leased Premises by foreclosure or otherwise, to enter upon the Leased
Premises and
-42-
operate the Amphitheatre and, if the City so elects, shall be entitled to
continue such operation until the December 31 following the acquisition of
the interest of Pace by the Permitted Mortgagee by foreclosure or
otherwise.
(e) If a default under any Permitted Mortgage shall have occurred,
any holder of such Permitted Mortgage may exercise with respect to the
Leased Premises any right, power or remedy under the Permitted Mortgage
which is not in conflict with the provisions of this Agreement.
(f) In the event of foreclosure or similar proceedings, or pursuant
to the sale, assignment or other transfer of this Agreement in lieu
thereof, this Agreement may be assigned, without the consent of the City,
upon notice to the City in the manner provided in this Agreement, to or by
any applicable Permitted Mortgagee or its trustee.
(g) Except with respect to a surrender upon the expiration of the
Term by Pace to the City, no surrender of any interest in this Agreement,
no surrender by Pace of the Leased Premises (or any part thereof, or of
any interest therein), and no termination or rejection of this Agreement
by Pace, shall be valid or effective, without the prior written consent of
each Permitted Mortgagee.
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ARTICLE XI
Default of Pace
Section 11.01. Events of Default. This Agreement and the terms and estate
hereby granted are subject to the limitation that:
(a) if Pace defaults in the payment of any installment of Minimum
Guaranteed Rental, Event Rental, Additional Rental, or any other sum
payable by Pace to the city on any date upon which the same ought to be
paid, and if such default continues for twenty (20) days after the City
provides to Pace a written notice specifying such default (with a copy of
said notice to any Permitted Mortgagee); or
(b) whenever Pace does, or permits to be done, whether by action or
inaction, anything contrary to any covenant or agreement on the part of
Pace herein contained or fails in keeping or performing of any of the
covenants, agreements, terms or provisions contained in this Agreement
which on the part or behalf of Pace are to be kept or performed (other
than those referred to in the foregoing subsection (a) of this Section
11.01] and Pace fails to (subject to unavoidable delay) remedy the same
within forty (40) days after the City gives to Pace a written notice
specifying the same (with a copy of said notice to any Permitted
Mortgagee); provided, however, if such default cannot be corrected within
said forty (40) day
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period, then said period of correction shall be extended for so long
thereafter as Pace (or any Permitted Mortgagee) proceeds in good faith and
with due diligence, in the judgment of the City, to remedy and correct the
same;
then, at any time after the date
(i) of the expiration of any such period of twenty (20) days,
if the City has given to Pace a twenty (20) day notice as
hereinbefore provided; or
(ii) of the expiration of any such period of forty (40) days
as extended as hereinabove provided, if the City has given to Pace a
forty (40) day notice as hereinbefore provided or at any time
thereafter if Pace fails to proceed diligently to remedy the
default;
then the City, at its option, and in addition to any and all other remedies
provided by law or in equity, may give to Pace (with a copy of said notice to
any Permitted Mortgagee) a notice (herein called the "second notice") of
intention to end the Term of this Agreement specifying a day not less than sixty
(60) days thereafter and, upon the giving of the second notice, this Agreement
and the Term and estate hereby granted shall expire and terminate upon the day
so specified in the second notice if the default be still then continuing, as
fully and completely and with the same force and effect as if the day so
specified were
-45-
the date hereinbefore fixed for the expiration of the Term of this Agreement,
and all rights of Pace under this Agreement shall expire and terminate. The
remedies of the City under this Agreement shall be cumulative.
Section 11.02. Events Upon Termination. Upon any such termination or
expiration of this Agreement, Pace shall peaceably quit and surrender the Leased
Premises to the City, and the City, without further notice and with or without
legal proceedings, may enter upon, re-enter, possess and repossess the City
thereof; or at the City's option, may recover possession of the Leased Premises
in an action of forcible detainer in the Justice Court, or by other appropriate
legal proceedings, and may dispossess and remove Pace and all other persons and
property from the Leased Premises and may have, hold and enjoy the Leased
Premises and the right to receive all rental and other income of and from the
same.
ARTICLE XII
Default of the City
Section 12.01. Defaults. In the event the City does, or permits to be
done, whether by action or inaction, anything contrary to any covenant or
agreement on the part of the City herein contained or fails in keeping or
performance of any of the covenants, agreements, terms or provisions contained
in this Agreement that on the part or behalf of the City are to be kept or
performed, including, without limitation the assignment of the Parking Tract
Rights, which rights the City and Pace acknowledge
-46-
are essential to the operation of the Amphitheatre, and the City fails to remedy
the same within one hundred twenty (120) days after Pace has given to the City a
written notice specifying the same, or having so commenced shall thereafter fail
to proceed diligently to remedy the same, Pace shall have the full right at
Pace's election to take any of the remedies set forth in Section 12.02 of this
Agreement.
Section 12.02. Remedies. In the event the City fails to remedy a default
described in Section 12.01, Pace shall be entitled to pursue any and all
remedies provided by law or in equity (including, but not limited to, the right
of specific performance, damages or mandamus, reliance damages, such as cost of
leasehold improvements, and consequential damages, such as lost revenues) by
reason of the default by the City hereunder and in addition thereto Pace shall
be entitled to terminate this Agreement (subject to the consent of all Permitted
Mortgagees). The remedies of Pace under this Agreement shall be cumulative.
ARTICLE XIII
Condemnation and Casualty
Section 13.01. Definitions. Whenever used in this Article, the following
words shall have the definitions and meanings hereinafter set forth:
(a) "Condemnation proceedings": Any action brought for the purpose
of any taking of the fee of the Leased Premises or any part thereof or any
other property interest therein by competent authority as a
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result of the exercise of the power of eminent domain, including a
voluntary sale to such authority either under threat of condemnation or
while such action or proceeding is pending.
(b) "Taking" or "taken": The event and date of vesting of title to
the fee of the Leased Premises or any part thereof pursuant to the
condemnation proceedings.
Section 13.02. Entire Taking. If all or substantially all of the Leased
Premises shall be taken in condemnation proceedings, this Agreement shall
terminate as of the taking and the rental shall be paid to the date of such
taking. For purposes of this Article XIII, "substantially all of the Leased
Premises" shall be deemed to have been taken if the untaken portion cannot be
practically and economically used or converted for use by Pace, in Pace's sole
opinion, for the purposes for which the Leased Premises are being used
immediately prior to such taking.
Section 13.03. Partial Taking. Except as provided below in this Section
13.03, if only a part of the Leased Premises are taken in condemnation
proceedings, this Agreement shall remain in effect as to that part of the Leased
Premises not taken; however, Pace shall have the option by notice to the City
within a reasonable time after such taking to restore or repair the portion of
the improvements, if any, then on the Leased premises to the extent Pace
determines to be reasonable and practical under the circumstances then
obtaining. If Pace elects to 50
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repair or restore, Pace shall be entitled to the recovery of all of the award
made or damages granted to the extent necessary for such repair and restoration.
In the event Pace elects not to repair or restore, then this Agreement shall
terminate as of the taking of the part of the Leased Premises in question, and
the rentals hereunder shall be abated during the unexpired portion of this
Agreement, effective on the date of such taking. The City and Pace shall each be
entitled to make claim for and receive such damages in accordance with the loss
and damage suffered by each, taking into consideration all the relevant facts
and circumstances.
Section 13.04. Temporary Taking. In the event of a temporary taking of all
or part of the Leased Premises in condemnation proceedings, this Agreement shall
not terminate; and Pace shall be entitled to the award made or damages granted
in connection with such temporary taking attributable to any period prior to the
expiration of the term hereof; provided, however, the rentals hereunder shall be
reduced during the period of such use on a just and proportionate basis having
due regard to the value of the portion of the Leased Premises so taken as
compared to the remainder thereof and taking into consideration the amount of
the award made or granted to Pace and the extent, if any, to which Pace's use of
the remainder of the Leased Premises are interfered with by reason of such
taking.
Section 13.05. Condemnation Award. In any condemnation proceedings (except
those as may be commenced by the City) the City and Pace agree to cooperate in
obtaining the highest award
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possible. Any compensation which may be awarded on account of the taking of all
or a part of the Leased Premises by condemnation proceedings shall be fairly
allocated between the ownership of the fee and the leasehold estate hereunder in
accordance with the loss and damage suffered by the City and Pace, taking into
consideration all the relevant facts and circumstances. Any compensation awarded
on account of the taking of all or a part of the improvements, buildings,
fixtures, and other property on or within or the use of the Leased Premises
shall be allocated solely to Pace, subject to the limitations of the next
sentence. If any such condemnation occurs during the last ten (10) years of the
Term of this Agreement, then, so long as the useful life of the improvements,
buildings, fixtures, and other property then on or within the Leased Premises
extends beyond the scheduled expiration of the term of this Agreement, Pace
shall only be entitled to that portion of the award allocated with respect to
such property for the scheduled remainder of the term of this Agreement; and the
balance of such compensation with respect to such property shall be allocated to
the City on account of its reversionary interest therein.
Section 13.06. Consent of Pace and Permitted Mortgagee. Without the
written consent of Pace, the Permitted Mortgagee and the City, neither Party
shall make any settlement with the condemning authorities or convey any portion
of the Leased Premises and improvements thereon to such authority in lieu of
condemnation or consent to any taking.
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Section 13.07. Casualty. In the event the Leased Premises or improvements,
buildings or fixtures within the Leased Premises are damaged or destroyed from
any casualty, Pace shall to the extent of available insurance proceeds, repair
the damage and restore the Leased Premises or such improvements, buildings or
fixtures to the extent reasonable and practical under the circumstances then
existing; provided, however, Pace shall not be required to so repair and restore
the Leased Premises and shall be entitled to terminate this Agreement by written
notice to the City in the event (a) theretofore or contemporaneously therewith
there shall have occurred damage or destruction to Fair Park such that the
Amphitheatre cannot be economically operated by Pace, in Pace's sole opinion, in
the manner it was operated prior to such damage or destruction and/or (b) the
Leased Premises or improvements, buildings or fixtures within the Leased
Premises are damaged or destroyed from any casualty of the type then generally
excluded from conventional property insurance.
Section 13.08. Proceeds. Pace shall be in all events entitled to all of
the insurance proceeds payable by reason of such damage or destruction. All
rental required hereunder shall ▇▇▇▇▇ in full until completion of the repair and
restoration, unless Pace terminates this Agreement by written notice to the City
in accordance with Section 13.07.
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ARTICLE XIV
Title and Other Warranties
Section 14.01. The City's Warranty of Title. The City hereby represents
and warrants to Pace that as of the Commencement Date the City has good and
indefeasible fee simple title in the Leased Premises and that there are no
mortgages, deeds of trust or other encumbrances against the Leased Premises,
other than utility and communication facilities, arising by, through or under
the City. The City shall put Pace into actual possession of the Leased Premises
upon the Commencement Date of this Agreement.
Section 14.02 Obligation to Provide Access and Parking. Notwithstanding
anything that may be contained herein to the contrary, in the event that by
reason of an adverse claim or encumbrance affecting title to the Parking Tract
which the City is unable to cure or otherwise remedy, Pace shall be unable to
exercise the Parking Tract Rights, the City shall forthwith provide those rights
in additional land in order to provide Pace with substantially similar access
and parking rights as it had with the Parking Tract Rights. Further, with
respect to such additional land, the City shall, at the City's expense,
forthwith construct improvements substantially similar to those theretofore
constructed by the City on the Parking Tract, and Pace and the City shall have
such rights and obligations with respect to such additional land as each Party
had with respect to the Parking Tract.
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Section 14.03. Quiet Enjoyment. After the Commencement Date, the City
hereby warrants and represents to Pace the quiet enjoyment and peaceable
possession of the Leased Premises and the Parking Tract, except as to such
portion of the Leased Premises and the Parking Tract, if any, as shall be taken
under the power of eminent domain and subject to the public utility facilities
now existing therein, the provisions of this Agreement and the rights of The
State Fair of Texas in and to the Parking Tract during New Years' Day, the
Period of the Fair and the thirty (30) days prior and fourteen (14) days
following the Period of the Fair pursuant to that certain Fair Park Contract
dated April 20, 1987, as amended by that certain First Amendment to Fair Park
Contract executed by The State Fair of Texas and the City on or before the
Commencement Date.
Section 14.04. City Warranties. The City hereby represents and warrants to
Pace that as of the Commencement Date:
(a) The City has all requisite power and authority to enter into
this Agreement and consummate the transactions herein contemplated, and
the joinder, consent or approval of no other person or entity is required
to properly consummate the transactions herein contemplated; and
(b) This Agreement is a valid obligation of the City and is binding
upon the City in accordance with its terms.
Section 14.05. Pace Warranties. Pace hereby represents and warrants to the
City that as of the Commencement Date:
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(a) Pace has all requisite power and authority to enter into this
Agreement and consummate the transactions herein contemplated, and the
joinder, consent or approval of no other person or entity is required to
properly consummate the transactions herein contemplated; and
(b) This Agreement is a valid obligation of Pace and is binding upon
Pace in accordance with its terms.
ARTICLE XV
Taxes
Section 15.01. Exemption from Taxes. The City and Pace acknowledge that
each will take the position that the Leased Premises are exempt under state law
from assessment by any taxing authority for real property taxes.
Section 15.02 Pace's Payment of Taxes if Not Exempt. In the event a court
of final jurisdiction determines the Leased Premises are not exempt under state
law from assessment for real property taxes, Pace shall pay to the appropriate
governmental body or instrumentality prior to delinquency all taxes which during
the Term of this Agreement may be levied upon or assessed against the Leased
Premises. Notwithstanding anything to the contrary, if the imposition of any of
such taxes shall be deemed by Pace, in its sole discretion, to be excessive or
if Pace desires to contest any taxes for any other reason, Pace may, at Pace's
sole cost and expense, dispute and contest the same and file all such protests
or other instruments and institute or prosecute all such proceedings for the
purpose of contest as Pace
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shall deem necessary or appropriate. Any such contested taxes need not be paid
until the same have been finally adjudged to be valid and owing with respect to
the Leased Premises unless the levying authority requires the payment of the
taxes being contested as a condition to contesting such taxes.
ARTICLE XVI
Miscellaneous
Section 16.01. Confirmation Letter. Pace and the City shall, at any time
and from time to time (but no more frequently than twice during any calendar
year) upon reasonable prior request by the other Party, execute, acknowledge and
deliver to the other Party or its designee a statement in writing certifying
only (i) that this Agreement is unmodified and in full force and effect (or if
there have been any modifications, that the same is in full force and effect as
modified and stating the modifications), and (ii) that it has no knowledge that
any default hereunder exists (except that if any such default does exist,
specifying such default).
Section 16.02. Notices. Any notice to be given or to be served in
connection with this Agreement must be in writing, and may be given by (a)
actual delivery or (b) certified or registered mail and shall be deemed to have
been given and received either (i) upon actual delivery (if delivered by
subsection (a) above) or (ii) forty-eight (48) hours after a
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certified or registered letter containing such notice, properly addressed, with
postage prepaid is deposited in the United States mail, addressed as follows:
If to Pace:
Pace Entertainment Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to the City:
City of Dallas
City Hall
1500 Marilla
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Director
Park and Recreation Department
If to a Permitted Mortgagee:
[to be supplied when Permitted Mortgage(s) given]
provided, however, that any Party may at any time change the place of receiving
notice by ten (10) days written notice of such change of address to the other
Party in accordance with the manner of giving notice described above.
Section 16.03. Modifications. This Agreement may be modified only by
written agreement signed by the City and Pace or their successors or assigns no
earlier than ten (10) days following issuance of written notice of such proposed
modification to any Permitted Mortgagee.
Section 16.04. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience in reference only and do not in any way
limit or amplify the terms and provisions of this Agreement.
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Section 16.05. Unavoidable Delay. The time within which either Party
hereto shall be required to perform any act under this Agreement shall be
extended by a period of time equal to the number of days during an unavoidable
delay. The term "unavoidable delays" shall mean delays due to strikes,
lock-outs, acts of God, inability to obtain labor, materials or governmental
approvals, governmental restrictions, enemy action, war, civil commotion, fire,
unavoidable casualty, construction delays due to weather, delays caused by the
City, or other similar causes beyond the control of such party.
Section 16.06. Venue. Any action brought to enforce or interpret this
Agreement shall be brought in the court of appropriate jurisdiction in Dallas
County, Texas.
Section 16.07. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
Section 16.08. Interpretation. Nothing contained herein shall be deemed or
construed by the Parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture or of
any association between the Parties hereto, it being understood and agreed that
neither the method of computation of rent, nor any other provision contained
herein, nor any acts of the Parties herein, shall be deemed to create any
relationship between the Parties hereto other than the relationship of lessor
and lessee.
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Section 16.09. Circumstances Under Which Liens Permissible. The existence
of any lien (constitutional or statutory) which arises by operation of law in
connection with construction, alteration, repair, reconstruction or demolition
work on any building or other improvements on the Leased Premises shall not be
deemed to constitute a default hereunder provided Pace pays, discharges, bonds
or otherwise makes provision for payment for such work in accordance with the
provisions hereof. The existence of any attachment lien or other lien on the
leasehold estate created by this Agreement arising by legal or equitable process
or by operation of law shall not be deemed to constitute a default hereunder if
this Agreement does not devolve upon or pass to another person, firm,
corporation or city.
Section 16.10. Waiver of Landlord's Lien. The City hereby subordinates all
right, title and interest in and to any landlord's lien, statutory or otherwise,
upon the property of Pace arising by virtue of this Agreement to any Permitted
Mortgage.
Section 16.11. Conditions Precedent to Commencement Date. The Commencement
Date shall be the date of satisfaction of the last of the following matters: (i)
the City Council of the City of Dallas adopting an ordinance designating the
zoning classification of the Leased Premises as a classification upon which may
be developed the Amphitheatre; (ii) the City Council of the City of Dallas
conforming its Contract between the City and The State Fair of Texas dated April
20, 1987 to the provisions of this Agreement; (iii) the City Council of the City
of Dallas
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conducting the hearings and making the determinations specified by Chapter 26 of
the Texas Parks and Wildlife Code; and (iv) Pace has been satisfied that the
City has good title to the Leased Premises and Parking Tract. In the event any
of the above matters have not been satisfied on or before December 31, 1988,
either Party may, at its option, terminate this Agreement by written notice to
the other Party. Each Party agrees to use its best efforts to facilitate the
satisfaction of such matters; provided, however, nothing herein constitutes a
waiver of any governmental power or authority of the City.
Section 16.12. Liaison Committee. Pace agrees to cooperate fully with the
Liaison Committee consisting of members of the Board of Directors of the State
Fair of Texas and members of the Park and Recreation Board for the purpose of
enhancing liaison and communication among major interest groups at Fair Park.
While the Liaison Committee is intended to function in an advisory capacity
only, without any specific policy making authority or decision making power,
Pace agrees to receive, review and consider suggestions made by the State Fair
of Texas and the Park and Recreation Board.
Section 16.13. Coordination with Fair Park General Manager. Pace agrees to
use its best efforts to cooperate with the Fair Park General Manager of the City
in order to facilitate the complementary scheduling and production of events
within Fair Park, such coordination to include Pace's notifying the Fair Park
General Manager of scheduled activities, bookings, tentative bookings, timing of
events, schedule changes and security and
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traffic plans. Pace shall provide at least fifteen (15) days written notice to
the Fair Park General Manager of the dates on which it intends to schedule on
entertainment, recreational, cultural or social event at the Amphitheatre or
elsewhere at Fair Park for the purpose of exercising the rights described in
Section 1.02(c) herein.
Section 16.14. Non-Discrimination. During the term of this Agreement and
any extension thereof, Pace shall not discriminate against any employee or
applicant for employment because of race, age, color, religion, handicap, sex,
ancestry, national origin, or place of birth; nor shall any person be denied
admittance nor be prevented from participating in any portion of any public
function or activity at the leased premises because of race, age, color,
religion, handicap, sex, ancestry, national origin, or place of birth.
Section 16.15. Minority Business Enterprise. Pace agrees to cooperate with
the City in meeting the City's commitments and goals with regard to the maximum
utilization of minority business enterprises and will in good faith act to
assure that minority business enterprises shall have the maximum practicable
opportunity to compete for procurements and contracts under this Agreement.
Section 16.16. Partial Invalidity. If any term, provision, condition or
covenant of this Agreement other than the provisions of Section 1.02 or the
application thereof to any Party or circumstances shall, to any extent, be held
invalid or unenforceable, the remainder of this Agreement, or the
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application of such term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
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EXECUTED as of the day and year first above written, but actually executed
on the dates set forth in the respective acknowledgments below.
CITY:
CITY OF DALLAS
APPROVED AS TO FORM: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, JR.
CITY MANAGER
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CITY ATTORNEY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ [Illegible]
------------------------- --------------------------
Assistant City Attorney Assistant City Manager
ATTEST: PARK AND RECREATION BOARD
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇. ▇. ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------- --------------------------
▇▇▇▇ ▇▇▇▇▇, Secretary, Park ▇▇▇. ▇. ▇. ▇▇▇▇▇▇, ▇▇.,
and Recreation Board President
PACE:
PACE ENTERTAINMENT GROUP, INC.
By: /s/ [Illegible]
Name: [Illegible]
Title: Vice President
-▇▇-
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 12th day of February,
1988, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant City Manager of the CITY OF DALLAS, a
political subdivision and municipality of the State of Texas.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission Expires:
03/16/91 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
(Printed Name of Notary)
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 11 day of February,
1988, by ▇▇▇. ▇. ▇. ▇▇▇▇▇▇, ▇▇., President of PARK AND RECREATION BOARD, on
behalf of the CITY OF DALLAS, a political subdivision and municipality of the
State of Texas.
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission Expires:
10/13/89 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
(Printed Name of Notary)
-▇▇-
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 10th day of February,
1988, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President of PACE ENTERTAINMENT GROUP, INC., a
Delaware corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
--------------------------------
[Seal] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of Texas
My Commission Expires 04-25-1989
--------------------------------
My Commission Expires:
----------------------------- --------------------------------
(Printed Name of Notary)
EXHIBIT C
ALL THAT certain lot, tract or parcel of land lying and being situated in the
City and County of Dallas, Texas and being more particularly described as
follows:
BEING a tract of land within the boundary of Fair Park, between ▇▇▇▇▇▇▇▇ Avenue
(crosstown), Pennsylvania Avenue, Second Avenue and ▇▇▇▇▇▇▇▇ Street, and being
more particularly described as follows.
BEGINNING at the intersection of the original southeast line of Pennsylvania
Avenue (46 feet wide) with the original northeast line, of Second Avenue (61
feet wide);
THENCE North 42 degrees 30 minutes 00 seconds East, along the original
southeast line of Pennsylvania Avenue, a distance of 2900.00 feet to a point for
a corner;
THENCE North 87 degrees 29 minutes 54 seconds East, along a proposed corner
cut-off line, a distance of 14.14 feet to a point on the proposed southwest
line of ▇▇▇▇▇▇▇▇ Street (60 feet wide);
THENCE South 47 degrees 30 minutes 12 seconds East, along the said proposed
southwest line of ▇▇▇▇▇▇▇▇ Street, a distance of 843.35 feet to the beginning
of a curve to the right having a radius of 470.00 feet;
THENCE in a southeasterly direction, along said curve and along the proposed
southwest line of ▇▇▇▇▇▇▇▇ Street, passing through an angle of 12 degrees 39
minutes 33 seconds, an arc distance of 103.84 feet to a point on the original
northwest line of ▇▇▇▇▇▇▇▇ Avenue (40 feet wide);
THENCE South 42 degrees 29 minutes 48 seconds West, along the original
northwest line of ▇▇▇▇▇▇▇▇ Avenue, a distance of 89.92 feet to a point on the
present northwest line of ▇▇▇▇▇▇▇▇ Avenue (105.52 feet wide at this point);
THENCE South 60 degrees 48 minutes 54 seconds West, along the present
northwest line of ▇▇▇▇▇▇▇▇ Avenue, a distance of 255.35 feet to the beginning of
a curve to the left having a radius of 865.75 feet;
THENCE in a southwesterly direction, along said curve and along the present
northwest line of ▇▇▇▇▇▇▇▇ Avenue, passing through an angle of 18 degrees 21
minutes 06 seconds, an arc distance of 277.30 feet to the end of said curve;
THENCE South 42 degrees 27 minutes 48 seconds West, along tangent to the last
mentioned curve and along the present northwest line of ▇▇▇▇▇▇▇▇ Avenue, a
distance of 2,330.90 feet to the original northeast line of Second Avenue (61
feet wide);
THENCE North 45 degrees 00 minutes 57 seconds West, along the original
northeast line of Second Avenue, a distance of 392.12 feet to an offset in the
northeast line of Second Avenue;
THENCE North 42 degrees 28 minutes 46 seconds East, along said offset, a
distance of 1.0 feet to a point on the northeast line of Second Avenue;
THENCE North 45 degrees 00 minutes 37 seconds West, along the northeast line of
Second Avenue, a distance of 442.41 feet to the POINT OF BEGINNING AND
CONTAINING approximately 2,475,509 square feet or 56.8299 acres of land, more
or less, SAVE AND EXCEPT THE REAL PROPERTY AS DESCRIBED ON EXHIBIT "A".
/s/ [Illegible]
January 12, 1988
EXHIBIT D
ALL THAT certain lot, tract or parcel of land lying and being situated in the
city and County of Dallas, Texas and being more particularly described as
follows:
BEING a tract of land within the boundary of Fair Park, between ▇▇▇▇▇▇▇▇ Avenue
(Crosstown), Pennsylvania Avenue, Second Avenue, and ▇▇▇▇▇▇▇▇ Street, and being
more particularly described as follows:
COMMENCING at the intersection of the original southeast line of Pennsylvania
Avenue (46 feet wide) with the original northeast line of Second Avenue (61 feet
wide);
THENCE North 42 degrees 30 minutes 00 seconds East, along the original southeast
line of Pennsylvania Avenue, a distance of 653.00 feet;
THENCE South 47 degrees 30 minutes 00 seconds East, a distance of 10.00 feet to
a point for a corner;
THENCE South 06 degrees 57 minutes 44 seconds West, a distance of 145.85 feet to
a point for a corner;
THENCE South 47 degrees 30 minutes 00 seconds East, a distance of 470.22 feet to
a point for a corner;
THENCE South 81 degrees 11 minutes 24 seconds East, a distance of 72.11 feet to
a point for a corner;
THENCE North 42 degrees 30 minutes 00 seconds East, a distance of 185.92 to a
point for a corner;
THENCE South 47 degrees 25 minutes 07 seconds East, a distance of 10.44 feet to
the PLACE OF BEGINNING;
THENCE North 42 degrees 34 minutes 53 seconds East, a distance of 340.00 feet
to a point for a corner;
THENCE South 47 degrees 25 minutes 07 seconds East, a distance of 123.00 feet to
a point for a corner;
THENCE South 42 degrees 34 minutes 53 seconds West, a distance of 340.00 feet to
a point for a corner;
THENCE North 47 degrees 25 minutes 07 seconds West, a distance of 123.00 feet to
the PLACE OF BEGINNING AND CONTAINING approximately 41,820 square feet or 0.9601
acres of land.
FIELD NOTES O.K.
/s/ [illegible]
---------------
EXHIBIT "A"
REVISED FIELD NOTES DESCRIBING A PART OF FAIR PARK TO BE USED FOR AN
AMPHITHEATER SITE.
ALL THAT certain lot, tract or parcel of land lying and being situated in the
City and County of Dallas, Texas, more particularly described as follows:
BEING all of Blocks A/1407 and B/1409 and a part of Blocks E/1408, F/1410,
C/1412, D/l406, 1805, 1807, 1555 and G/1553 all official City numbers, and being
a part of Fair Grounds Addition, being a subdivision of the west end of Lots 1
and 3, and all of Lot 2 of Block "G" of the estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇, as per map
or plat of said addition recorded in Volume 124, Page 1, of the Deed Records of
Dallas County, Texas, and being a part of South View Addition, according to the
map or plat thereof recorded in Volume 1, Page 46 of the Map Records of Dallas
County, Texas, and being a part of ▇▇▇▇ Subdivision of Block 1555, as per map or
plat of said Subdivision recorded in Volume 1, Page 313 of said Map Records, and
being a part of ▇. ▇. ▇▇▇▇▇▇▇'▇ Homestead Addition; as per map or plat of said
Addition recorded in Volume 1, Page 237 of said Map Records, and being a part of
▇. ▇▇▇▇▇▇▇'▇ Addition as per map or plat of said addition recorded in Volume 1,
Page 555, of said Map Records, and being a part of Tella Street, Birmingham
Street, Exposition Avenue, Cross Street, Rice Street, Davidson Street and ▇▇▇▇▇
Street and an alley in Block 1805, all being closed and vacated by City of
Dallas Ordinance No. 16060, and being a part of the property conveyed to the
City of Dallas by the following instruments:
1. Deed from ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, a widow, dated December 26, 1957 and
recorded in Volume 4820, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇;
2. Deed from Isodore ▇▇▇▇▇▇ and wife, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, dated March
6, 1958 and recorded in Volume 4863, Page 0458, of said Deed
Records;
3. Deed from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and husband, ▇▇▇▇▇▇ ▇▇▇▇▇, dated
February 11, 1958 and recorded in Volume 4871, Page 107, of said
Deed Records;
4. Deed from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Allee and husband, ▇▇▇▇▇ Alle, dated August
28, 1969 and recorded in Volume 69172, Page 1462, of said Deed
Records;
5. Deed from ▇▇▇▇ ▇. ▇▇▇▇▇▇, dated April 9, 1969 and recorded in Volume
69087, Page l627, of said Deed Records;
6. Deed from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, dated November 15, 1968 and recorded in
Volume 68233, Page 1373 of said Deed Records;
7. Deed from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a single woman, dated
December 2, 1968 and recorded in Volume 68235, Page 1037, of said
Deed Records;
8. Deed from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and wife, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, dated
August 27, 1969 and recorded in Volume 69170, Page 1466, of said
Deed Records;
9. Judgment (No. 69-6264-d) in the records of the County Court of
Dallas County at Law No. 4, Dallas County, Texas awarding part of
said Lots 17 and 18 in Block 1555, official City numbers, to the
City of Dallas from ▇▇▇▇▇▇ Chance, et ux, et al, dated June 12, 1970
and recorded in Volume 70200, Page 0975 of, said Deed Records;
Page 1 of 6
FIELD NOTES O.K.
/s/ [illegible]
---------------
CONTINUATION OF REVISED FIELD NOTES DESCRIBING A PART OF FAIR PARK TO BE USED
FOR AN AMPHITHEATER SITE. PAGE TWO.
10. Deed from ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, et vir, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, dated November
7, 1968 and recorded in Volume 68236, Page 1900, of said Deed
Records;
11. Deed from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, widow of E. L. ▇▇▇▇▇▇, deceased,
Joined Proforma by her husband, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, dated March 24, 1969
and recorded in Volume 69071, Page 1741, of said Deed Records;
12. Confirmation Warranty Deed from ▇▇▇▇ ▇▇▇▇▇▇, et ux, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, dated November 24, 1975 and recorded in Volume 76081, Page
2889, of said Deed Records;
13. Deed from Credit Finance Corporation, dated December 30, 1968 and
recorded in Volume 69001, Page 0055, of said Deed Records;
14. Deed from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, dated March 11, 1970 and recorded in
Volume 70059, Page 1411, of said Deed Records;
15. Deed from ▇▇▇▇▇ ▇▇▇▇▇▇▇ dated December 6, 1968 and recorded in
Volume 68244, Page 1357, of said Deed Records;
16. Deed from ▇. ▇. ▇▇▇▇▇▇▇, dated May 9, 1969 and recorded in Volume
69096, Page 0833, of said Deed Records;
17. Deed from ▇▇▇▇▇▇ ▇▇▇▇▇ and wife, ▇▇▇▇▇▇▇ ▇▇▇▇▇, dated March 27, 1969
and recorded in Volume 69062, Page 1017, of said Deed Records;
18. Deed from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dated July 22, 1969 and recorded in Volume
69142, Page 0739, of said Deed Records;
19. Deed from ▇. ▇. ▇▇▇▇▇▇▇ dated December 10, 1956 and recorded in
Volume 4625, Page 442, of said Deed Records;
20. Deed ▇. ▇. ▇▇▇▇▇▇▇, ▇▇., dated April 23, 1954 and recorded in Volume
4029, Page 612, of said Deed Records;
21. Deed from ▇▇▇▇▇ ▇▇▇▇▇, et vir, ▇▇▇▇▇ ▇▇▇▇▇, dated June 3, 1957 and
recorded in Volume 4711, Page 437, of said Deed Records;
22. Deed from Costodio Guzzeto et al, dated October 31, 1969 and
recorded in Volume 69219, Page 0927, of said Deed Records;
23. Deed from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., et ux, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated June
6, 1956 and recorded in Volume 4608, Page 388, of said Deed Records;
24. Deed from ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Independent Executor of the estate of
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, deceased, et al, dated March 7, 1957 and
recorded in Volume 4670, Page 147, of said Deed Records;
Page 2 of 6
FIELD NOTES O.K.
/s/ [illegible]
---------------
CONTINUATION OF REVISED FIELD NOTES DESCRIBING A PART OF FAIR PARK TO BE USED
FOR AN AMPHITHEATER SITE. PAGE THREE.
25. Deed from G. Velasquex, et ux, et al, dated June 6, 1956 and
recorded in Volume 4524, Page 188, of said Deed Records;
26. Deed from Southern Bible Training School, Inc., dated July 30, 1956
and recorded in Volume 4558, Page 371, of said Deed Records;
27. Deed from ▇▇▇▇ ▇. ▇▇▇▇▇▇ and wife, ▇▇▇▇ ▇▇▇▇▇▇, dated August 22,
1956 and recorded in Volume 4562, Page 123, of said Deed Records;
28. Deed from ▇▇▇▇▇▇ May ▇▇▇▇▇▇▇▇▇ White, a widow, dated June 13, 1956
and recorded in Volume 4522, Page 28, of said Deed Records;
29. Conformation Warranty Deed from ▇▇▇ ▇▇▇▇▇▇▇▇ et ux, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
dated June 15, 1973 and recorded in Volume 73127, Page 0942 of said
Deed Records;
30. Final Judgment from ▇▇▇▇▇ ▇▇▇▇, a widow, et al, dated May 4, 1976
and recorded in Volume 77011, Page 1016 of said Deed Records;
31. Deed from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ et ux, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated December 2,
1968, and recorded in Volume 69001, Page 1010 of said Deed Records;
32. Deed from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, a single woman, dated October 30, 1968
and recorded in Volume 68221, Page 1114 of said Deed Records;
33. Deed from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, et al dated November 3, 1969 and
recorded in Volume 69243, Page 1152 of said Deed Records;
and being all of the land conveyed to the City of Dallas by the following
instruments:
34. Deed from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, et ux, et al, dated December 12, 1957
and recorded in Volume 4816, Page 273, of said Deed Records;
35. Deed from ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, et al, dated March 6, 1958 and
recorded in Volume 4880, Page 143, of said Deed Records;
36. Deed from C-M-E Corporation, Inc., dated April 18, 1969 and
recorded in Volume 69081, Page 1531, of said Deed Records;
37. Deed from ▇▇▇▇ ▇▇▇▇▇▇▇▇, dated August 6, 1969 and recorded in Volume
69162, Page 1091, of said Deed Records;
38. Judgment from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (deceased), et ux, et al, dated April
9, 1974 and recorded in Volume 74070, Page 0587, of said Deed
Records;
39. Deed from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., dated August 1, 1969 and recorded
in Volume 69156, Page 0877, of said Deed Records;
40. Deed from ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, et al, dated December 13, 1968
and recorded in Volume 69001, Page 1008, of said Deed Records;
Page 3 of 6
FIELD NOTES O.K.
/s/ [illegible]
---------------
CONTINUATION OF REVISED FIELD NOTES DESCRIBING A PART OF FAIR PARK TO BE USED
FOR AN AMPHITHEATER SITE. PAGE FOUR.
41. Deed from ▇▇▇▇▇▇▇▇▇▇, Jr., and wife, Ivy ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ dated July
29, 1969 and recorded in Volume 69152, Page 1078, of said Deed
Records;
42. Deed from ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, dated October 25, 1968
and recorded in Volume 68222, Page 1354, of said Deed Records;
43. Deed from ▇▇▇ ▇. ▇▇▇▇▇▇, dated October 7, 1968 and recorded in
Volume 68200, Page 1822, of said Deed Records;
44. Deed from Yale ▇▇▇▇▇▇▇, dated June 9, 1969 and recorded in Volume
69118, Page 0994, of said Deed Records;
45. Deed from K. B. Banks, et ux, ▇▇▇▇▇▇ ▇▇▇▇▇, dated October 16, 1968
and recorded in Volume 68209, Page 1936, of said Deed Records;
46. Deed from ▇. ▇. ▇▇▇▇▇▇▇▇, et ux, dated August 24, 1956 and recorded
in Volume 4572, Page 299, of said Deed Records;
47. Deed from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ C., et ux, dated June 13, 1956 and
recorded in Volume 4525, Page 607, of said Deed Records;
48. Deed from ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ dated July 11, 1956 and recorded in
Volume 4539, Page 449, of said Deed Records;
49. Deed from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, et ux, dated July 18, 1956 and recorded
in Volume 4543, Page 241, of said Deed Records;
50. Deed from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated August 23, 1956 and recorded in
Volume 4564, Page 533, of said Deed Records;
51. Deed from 0. ▇. ▇▇▇▇▇▇▇▇ dated August 20, 1956 and recorded in
Volume 4562, Page 17, of said Deed Records;
52. Deed from ▇▇▇▇▇ ▇▇▇▇▇▇ dated August 21, 1956 and recorded in Volume
4562, Page 19, of said Deed Records;
53. Deed from ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, et ux, dated August 3, 1956 and recorded
in Volume 4562, Page 22, of said Deed Records;
54. Deed from ▇▇▇▇▇ ▇. ▇▇▇▇, et al, dated June 29, 1957 and recorded in
Volume 4781, Page 119, of said Deed Records;
55. Deed from ▇▇▇▇▇▇ ▇▇▇▇▇, dated August 29, 1956 and recorded in Volume
4566, Page 527, of said Deed Records;
56. Deed from ▇▇▇▇▇ ▇▇▇▇, et ux, dated June 21, 1956 and recorded in
Volume 4531, Page 518, of said Deed Records;
57. Deed from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dated July 18, 1956 and recorded in Volume
4551, Page 412, of said Deed Records;
Page 4 of 6
FIELD NOTES O.K.
/s/ [illegible]
---------------
CONTINUATION OF REVISED FIELD NOTES DESCRIBING A PART OF FAIR PARK TO BE USED
FOR AN AMPHITHEATER SITE. PAGE FIVE.
58. Deed from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, et ux, dated August 1, 1956 and recorded
in Volume 4552, Page 67, of said Deed Records;
59. Deed from ▇. ▇. ▇▇▇▇▇▇▇▇, et ux, dated June 20, 1956 and recorded in
Volume 4523, Page 381, of said Deed Records;
60. Deed from ▇▇▇▇ ▇. ▇▇▇▇▇▇, et ux, dated November 1, 1968 and recorded
in Volume 68239, Page 2073, of said Deed Records;
61. Deed from ▇. ▇. ▇▇▇▇▇▇, dated November 12, 1968 and recorded in
Volume 68234, Page 1559, of said Deed Records;
62. Deed from T. 0. ▇▇▇▇▇▇▇, et ux, dated April 7, 1969 and recorded in
Volume 69076, Page 2253, of said Deed Records;
63. Deed from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, dated October 7, 1969 and recorded in
Volume 69199, Page 1403, of said Deed Records;
64. Deed from ▇▇▇▇ ▇. ▇▇▇▇▇▇, et ux, dated April 7, 1969 and recorded in
Volume 69076, Page 2257, of said Deed Records;
65. Deed from Adeles ▇. ▇▇▇▇▇▇▇, et ux, dated October 14, 1970 and
recorded in Volume 70210, Page 1434, of said Deed Records;
66. Deed from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, et al, dated August 9, 1969 and recorded
in Volume 69176, Page 0837, of said Deed Records;
67. Confirmation Warranty Deed from ▇▇▇▇ ▇▇▇▇▇▇▇▇, et al, dated March
31, 1976 and recorded in Volume 76081, Page 2917, of said Deed
Records;
68. Deed from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, et ux, dated October 10, 1968 and
recorded in Volume 68205, Page 1632, of said Deed Records;
69. Deed from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, et vir, dated August 28, 1969 and
recorded in Volume 69178, Page 1477, of said Deed Records;
70. Deed from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 17, 1969 and recorded in
Volume 69213, Page 1620, of said Deed Records;
71. Deed from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., et ux, dated March 14, 1969 and
recorded in Volume 69057, Page 1794, of said Deed Records;
72. Deed from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇. ▇. ▇▇▇▇▇▇▇▇▇, dated April 4, 1969
and recorded in Volume 69067, Page 1910, of said Deed Records;
73. Deed from ▇▇▇ Levels, et ux, dated October 11, 1973, and recorded in
Volume 73200, Page 0480, of said Deed Records;
74. Deed from ▇▇▇▇ ▇. ▇▇▇▇▇▇, et ux, dated August 4, 1969 and recorded
in Volume 69172, Page 1434, of said Deed Records;
Page 5 of 6
FIELD NOTES O.K.
/s/ [illegible]
---------------
CONTINUATION OF REVISED FIELD NOTES DESCRIBING A PART OF FAIR PARK TO BE USED
FOR AN AMPHITHEATER SITE. PAGE SIX.
and being more particularly described as follows:
COMMENCING at the intersection of the original southeast line of Pennsylvania
Avenue (46 feet wide) with the original northeast line of Second Avenue (61 feet
wide);
THENCE North 42(degrees) 30' East along the original southeast line of
Pennsylvania Avenue, a distance of 653.0 feet;
THENCE South 47(degrees) 30' East, a distance of 10.0 feet to the PLACE OF
BEGINNING;
THENCE North 42(degrees) 30' East along the proposed southeast line for
Pennsylvania Avenue, and along a line which is 10.00 feet perpendicular distance
southeast from and parallel with the original southeast line of Pennsylvania
Avenue, a distance of 655.00 feet to a point for corner;
THENCE North 79(degrees) 22' 12" East, a distance of 100.00 feet to a point for
corner;
THENCE South 47(degrees) 30' East, a distance of 217.30 feet to a point for
corner;
THENCE North 42(degrees) 30' East, a distance of 19.93 feet to a point for
corner;
THENCE South 47(degrees) 30' East, a distance of 305.00 feet to a point for
corner;
THENCE South 05(degrees) 30' 46" East, a distance of 43.99 feet to a point for
corner;
THENCE South 42(degrees) 30' West, a distance of 804.19 feet to a point for
corner;
THENCE North 81(degrees) 11' 24" West, a distance of 72.11 feet to a point for
corner;
THENCE North 47(degrees) 30' West, a distance of 470.22 feet to a point for
corner;
THENCE North 06(degrees) 57' 44" East, a distance of 145.85 feet to the Place of
Beginning and containing approximately 522,635 square feet or 11.9981 acres of
land.
SUBJECT TO all existing utilities.
CJT/mb
12-28-87/0595S
dk30
/s/ [illegible]
---------------
Page 6 of 6
[GRAPHIC OMITTED]
EXHIBIT "B"
AMPHITHEATRE SITE
and
PARKING AREA
at
FAIR PARK