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HomeMy WebLinkAboutResolution - 2022-R0179 - Lease Agreement with Joyland Amusement Park for Mackenzie ParkResolution No. 2022-RO179 Item No. 7.30 April 12, 2022 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, the Joyland Amusement Park Lease Agreement by and between the City of Lubbock and Mackenzie Park Playground Inc. d/b/a Joyland Amusement Park regarding the lease of certain real property located at Mackenzie Park in Lubbock, Texas, and related documents. Said Lease is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on April 12, 2022 LA DANIEL M. POPE, MAYOR ATTEST: Garza, City APPROVED AS TO CONTENT: Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Ryan B�ke, Assistant City Attorney RES.Lease-Joyland Amusement Park Lease Agreement 3.30.22 Resolution No. 2022-R0179 Joyland Amusement Park Lease Agreement The following Lease Agreement ("Agreement" herein) is made and entered into by and between the City of Lubbock, Texas, ("City" herein), and Mackenzie Park Playground Inc. d/b/a Joyland Amusement Park ("Joyland" herein) of Lubbock County, Texas. For and in consideration of the rental terms set forth herein, City hereby agrees to lease to Joyland all of the area in Mackenzie Park known as Joyland Amusement Park located within Mackenzie Park in Lubbock, Texas and further described in the attached Exhibit "A" which is incorporated by reference as if set out verbatim ("Park" herein). Section 1 DEFIMTIONS As used herein, the following terms shall have the following meanings: A) "Permanent Improvements" shall mean anybuilding that is fixed in place and unable to be moved about the Park Area. B) "Temporary Improvements" shall mean all improvements to the Park Area that are not Permanent Improvements, including, without limitation, any ride. Section 2 GENERAL TERMS A) Term and Automatic Renewal: The term of this Agreement shall be for twenty- five (25) years from date hereof, and shall be automatically extended for successive five (5) year terms not to exceed forty (40) years in any event unless either party shall give written notice of termination to the other party before the expiration of the first, second or third five (5) year term, as the case may be. The Parties retain the right at its election to cancel and revoke this Agreement, with or without cause, upon one hundred and eighty (180) days notice to the other Party. B) Commencement Date: April 15, 2022. C) Termination Date: April 15, 2047, subject to the automatic renewal and notice of termination. D) Assignment: Joyland shall not assign, transfer, and sell any of its interest in this Agreement for any reason, without obtaining the approval of the City Council of the City of Lubbock prior to the assignment, transfer, or sale. E) Annual rental rate and payment schedule: 1) Joyland agrees to make an annual payment of $36,000.00 per year to City beginning in 2022 as set forth below. This amount shall be adjusted based upon the All items Consumer Price Index for All Urban Consumers (CPI- U) indicator as determined by the United States Bureau of Labor Statistics regarding the Dallas -Fort Worth -Arlington region at the beginning of each calendar year provided however the annual CPI-U increase shall not exceed: a) 4.00% annually for the period of April 15, 2022 through April 15, 2027; b) 3.50% annually for the period April 15, 2027 through April 15, 2032; c) 3.00% annually for the period April 15, 2032 through April 15, 2037; d) 2.50% annually for the period April 15, 2037 through April, 2042; or e) the lesser of 2.00% annually or $ 65,000.00annually for the period April 15, 2042 through April 15, 2047. 2) Subject to the adjustment for CPI as described herein, see above Section 2, E) 1), the annual payment is to be paid in four (4) equal payments of $9,000.00 on or before the following days of each year as set forth below, unless such day falls on a weekend or holiday, then payment will be due on the following business day: a) June 1 S`, b) July I", c) August 1 S`, and d) September V. 3) The City shall notify Joyland in writing, on or before March I" of each year, of any increase in the annual rental rate for the upcoming lease year. Section 3 USE, MAINTENANCE & IMPROVEMENTS Joyland agrees, binds and obligates itself as an independent contractor, to: A) operate all concessions in the Park in a manner that is acceptable to the City, or its duly authorized agents, and in accordance with all laws, rules, regulations, and ordinances of the City, and the Lubbock Parks and Recreation Board that are in effect or become effective during the term of this Agreement; B) keep the Park in a clean and sanitary condition, including maintaining all plants, trees, grasses, Permanent Improvements and Temporary Improvements within the Park in such a state of repair as the same are in at the commencement of this Agreement, subject to reasonable use and wearing of said plants, trees, grasses, buildings, Permanent Improvements and Temporary Improvements; C) make capital improvements which, in Joyland's sole opinion, will enhance the value, patrons' use of the Park, and the revenue of the Park; provided however, that any Permanent Improvements, save and except metal buildings, made by Joyland to the Park, shall become the property of the City at the expiration of the lease, and all Temporary Improvements and metal buildings, whether affixed to the growid or not; will remain Joyland's propertyand subject to removal upon the expiration or termination of this Agreement; D) notify the Lubbock Police Department in the event of weekend and holiday traffic control issues at Mackenzie Park to allow for reasonable patron and emergency access to and from the Park; and E) submit requests for Capital Improvement Projects concerning Mackenzie Park to the Directors of the Parks and Recreation and Public Works departments of the City by March 1 of each year for the following City fiscal year. City agrees, binds and obligates itself to: A) furnish, maintain, and improve parking lots or lots of sufficient size to meet the demands and needs of the public in its use of the Park, Joyland shall notify the City of Lubbock's Director of Public Works, or his designee, concerning any requests for repairs related to the parking lots, and the City shall make necessary repairs to the parking lots within fifteen (15) days of notification or provide correspondence setting the time for the repairs; B) install a water meter serving Joyland as close as reasonably possible adjacent to Joyland's west boundary line. As require by City rules, regulations and ordinances, Joyland shall be responsible for connecting Joyland's water service line to the new meter, within fourteen (14) calendar days of meter installation; C) maintain and repair the water main serving Joyland up to the water meter serving Joyland. The water service line between the water meter serving Joyland and Joyland and any required Reduced Pressure Zone equipment for the water line serving Joyland, only, shall be the responsibility of Joyland; D) maintain, repair, and improve all areas outside of the Park in keeping with the state of repair of the Park itself, including, without limitation, maintaining, clearing, improving, and ensuring the proper and adequate flow of the creek that navigates through Mackenzie Park; E) when necessary for maintaining public safety, provide weekend and holiday traffic control and security at Mackenzie Park to allow for reasonable patron and emergency access to and from the Park; F) provide Joyland ingress and egress access to the Park via the Interstate 27 access road north of the Park. Except for emergency situations, in the event that Interstate 27 access will not be available, the City shall provide Joyland thirty (30) days notice and coordinate with Joyland to minimize any impact of access closure; G) coordinate with Joyland regarding future Capital Improvement Projects that will impact or effect Joyland, the Park, or Mackenzie Park; and H) provide Joyland with the name, title and telephone number of the individual at the Lubbock Police Department who is responsible for scheduling weekend and holiday traffic control at Mackenzie Park. The City retains the right to make improvements to the Park, in cooperation with Joyland and at the City's sole cost, which in the discretion of the City are necessary or desirable in order that the public might obtain full enjoyment of the Park. Joyland agrees to request written approval from the City of Lubbock's City Manager, or his designee, for any and all changes, additions, or alterations in the design and placement of any Temporary Improvement or Permanent Improvement in the Park. The City shall have thirty (30) business days from the receipt of Joyland's request to deny the same in writing. If the City does not timely deny the request in writing, the request will be deemed approved. Should the City Manager, or his designee, deny a request, Joyland shall be entitled to request approval from the City Council. Section 4 INSURANCE Joyland agrees to incur the costs to obtain and maintain during the entire duration of the lease term, insurance with an insurance underwriter acceptable to the City and that is authorized to do business within the State of Texas, as follows: A) Comprehensive General Liability Insurance in the amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) (combined single limit) for bodily injuryand propertydamage claims resulting from Joyland's business operations of the Park. B) Fire and Extended Coverage Insurance on all improvements located in and on the Park in amounts sufficient to cover replacement costs of such improvements or the maximum for which the improvements are insurable, whichever is less. C) Joyland shall maintain Worker's Compensation Insurance sufficient to meet the State of Texas statutory guidelines. In the event of loss, in whole or in part, of any Permanent Improvement insured pursuant to the provisions in this Section and the Agreement, Joyland shall apply all proceeds received from such insurance toward either: (A) rehabilitation or repair of such Permanent Improvement, at the option of the City; (B) the construction of new improvements within the Park that meets Joyland's approval; or (C) the complete removal of the subject Permanent Improvement. If, during the term of this Agreement, Joyland's improvements are totally or partially destroyed from a risk required to be covered by the insurance described in this Section and Agreement, or otherwise covered by insurance, this Agreement shall not terminate. Joyland shall timely restore or cause to be restored the improvements to the extent of the insurance proceeds received. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City Secretary by Joyland prior to the Commencement Date. Each policy shall name the City as an additional insured as its interest may appear. Each policy shall also provide that the insurer shall notify the City Secretary of any alteration, renewal, or cancellation of its terms and that such policy will remain in full force and effect until ten (10) days after such notice is received by the City Secretary. Section 5 ACCESS City and its duly authorized agents and representatives are hereby authorized by Joyland to enter the Park, all buildings, and view all equipment and improvements in the Park for the purpose of inspecting the entire area for all lawful purposes provided such entry and inspection is conducted during normal business hours and with at least a twenty-four (24) hour notice to Joyland prior to the entrance. This section is exclusive to the purpose of inspections of Joyland and is not applicable to the City's right to enter Joyland or the Park for emergency situations or to exercise police powers or other emergency services. Section 6 DEFAULT Should Joyland neglect or otherwise fail to perform or observe any of the conditions, agreements, or covenants contained within this Agreement that are or were to be performed by Joyland, or be declared bankrupt according to law, or if any assignment of the premises is made for the benefit of creditors, the City may lawfully and immediately at any time, without notice or demand to Joyland, enter into and upon the Park, and any part thereof, and repossess the same, and expel Joyland along with Joyland's concessions without being deemed guilty of any manner of trespass, without prejudice to any remedies which might otherwise be used for obtaining possession of the Park or rent in arrears, and upon entry by the City, the lease shall terminate as to Joyland. Save and except Joyland shall be entitled to remove all Temporary Improvements from the Park. Should City neglect or otherwise fail to perform or observe any of the conditions, agreements, or covenants contained within this Agreement that are or were to be performed by the City, and fail to cure or begin to repair, remedy or cure the same within fifteen (15) days after the City's receipt of written notice from Joyland, the City shall forfeit its rental rate from the date of notice until such time as the actions of neglect or failures are remedied to the approval of Joyland. Section 7 GENERAL PROVISIONS City and Joyland mutually agree and understand the following: A) Governing Law: The laws of the State of Texas govern this Agreement. B) Venue Provision: Any action or proceeding arising out of this Agreement must be brought in Lubbock County, Texas. C) Attorneys' Fees: Should legal action or litigation ever arise out of this Agreement or in connection to this Agreement, the losing party agrees to reimburse the winning party for costs and attorneys' fees. D) Severability: The terms of this Agreement are severable, so that if a court finds any term or section to be invalid or unenforceable, all remaining terms and sections shall continue to be valid and enforceable. E) Multiple Subparts: This Agreement may be executed in multiple originals and counterparts, each of which shall be an original and all of which shall constitute a single Agreement binding on the parties. F) Entire Agreement: This Agreement constitutes and represents the entire agreement between the Cityand Joyland, and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of anynature, whether oral or written, between the City and Joyland relating to the lease of the Park. The Agreement shall be binding upon and inure to the benefit of the City and Joyland and their respective successors and permitted assigns. G) Agreement Amendments: Amendments to this Agreement are permitted as long as the amendment is in writing and signed by both the City and Joyland. No oral, unwritten, or unsigned amendments shall have any effect or validity on this Agreement. H) No rule of construction against the drafter: Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applied to the interpretation of this Agreement. I) Authority to Sign: The person(s) signing below certifythat theypossess the authority to fully bind the City and Joyland to the terms and conditions set forth in this Agreement. J) Rights and Remedies Reserved: The parties reserve the right to exercise any right or remedy available to them by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the parties shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. K) Funding and Future Improvements: The Parties understand and acknowledge that any City funding of this Agreement or future Capital Improvement Project is contained in City's annual budget and is subject to the approval of the City in each fiscal year. The Parties further agree that should the governing body of the City fail to approve a budget which includes sufficient funds for the continuance of this Agreement or any Capital Improvement Project, or should the governing body of the City fail to certify funds for any reason, such an event shall not be considered a breach of any obligation created in this Agreement. When the funds budgeted or certified during any fiscal year by the City to discharge its obligations under this Agreement are expended, Joyland's sole and exclusive remedy shall be to terminate this Agreement. L) No Indemnification by City: The parties expressly acknowledge that the City's authority to indemnify and/or hold harmless any third party is governed by Article XI, Section 7 of the Texas Constitution and any provision which purports to require indemnification by the City is invalid. M) Compliance with Chapter 2270, Subtitle F, Title 10, Texas Government Code: Joyland warrants that it is in compliance with Chapter 2270, Subtitle F, Title 10 of the Texas Government Code by verifying that: (1) it does not boycott Israel; and (2) it will not boycott Israel during the term of the contract. N) Sovereign Immunity Acknowledged and Retained: THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS AGREEMENT IS IN ANY WAY INTENDED TO CONSTITUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE CITY OF LUBBOCK RETAINS ALL GOVERNMENTAL IMMUNITIES. CITY OF LUBBOCK: By: Lj�Date: April 12, 2022 Daniel M. Pope, Mayor of Lubbock ATTEST: By: Vix,Date: April 12, 2022 Re ecca (Becky) Garza, ty ecretary MACKENZIE PARK PLAYGROUND, INC. d/b/a JOYLAND AMUSEMENT PARK: By: 100Date: 02� David Dean, President of Joyland APPROVED AS TO CONTENT: By: _ W � \Lk4 Date: '4 U Zy, Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: By: Z Date: Ryan ooke, Assistant City Attorney s By: 1 Date: 414f -�616�- William A. Franklin, Attorney for Joyland Joyland Amusement Park Lease Agreement Exhibit A Feet N �r 0 50 100 200 300 400 500 1 ��of As required by Chapter 2051, Geospatial Data Products of the Government Code, this product is for informational purposes �� oyla nd Boundary Lub (Jock and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. it does not represent an TEXAS on -the -ground survey and represents only the approximate relative location of property boundaries.