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HomeMy WebLinkAboutResolution - 2018-R0069 - Joyland Lease Agreement - 02/08/2018Resolution No. 2018-R0069 Item No. 6.15 February 8, 2018 RESOLUTION WHEREAS, the City of Lubbock (the "City") and Mackenzie Park Playground, Inc., d/b/a Joyland Amusement Park ("Joyland") entered into a Lease Agreement on August 13, 1987, a copy of such Lease Agreement, and all amendments thereto, is attached hereto as "Exhibit 1" and is incorporated in this Resolution as if fully set forth herein; WHEREAS, Section 10 of said Lease Agreement permits the assignment of the Lease Agreement with the written consent of the City; and WHEREAS, Joyland desires to assign to Prosperity Bank the Lease Agreement with the City in order to finance park improvements, with a copy of such Assignment being attached hereto as "Exhibit 2" and being incorporated in this Resolution as if fully set forth herein; and NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT the City Council of the City of Lubbock hereby approves and consents to the Assignment of the Lease Agreement from Joyland to Prosperity Bank for the financing of park improvements. SECTION 2. THAT the act of the City Manager of the City of Lubbock in executing the Assignment of the Lease Agreement from Mackenzie Park Playground, Inc., d/b/a Joyland Amusement Park, to Prosperity Bank, is hereby ratified in full. Said Lease Agreement and Assignment are 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 February 8, 2018 L'�v DANIEL M. POPE, MAYOR ATTEST: Rebe taria, City Secreta APPROVED AS TO CONTENT: W. Jarr tt Atkinson, City Manager APPROVED AS TO FORM: Ju - in P uitt, Assistant City Attorney ccdocs/RES. Ratify -• Lease Agreement — Assignment from Joyland to Prosperity Bank — Park Improvements January 26, 2018 OPW THE STATE OF TEXAS COUNTY OF LUBBOCK JOYLAND AMUSEMENT PARK LEASE AGREEMENT 5 S KNOW.IALL MEN BY THESE PRESENTS: That the following agreement made and entered into by and be- tween the CITY OF LUBBOCK, TEXAS, hereinafter called "City", acting by and through its officers heretofore duly authorized to execute this instrument, and upon the recommendation of the City of Lubbock Parks and Recreation Board, subject to the approval of the Texas State Parks Board, and MACKENZIE PARK PLAYGROUND, INC. d/b/a JOY - LAND AMUSEMENT PARK, hereinafter called "Concessioner", of Lubbock County, Texas. W I T N E S S E T H: Section 1 That for and in consideration of the rental as hereinafter provided, the City of Lubbock does hereby lease and let to Conces- sioneriall of the area in Mackenzie State Park known as Joyland Amusement Park, in the County of Lubbock, State of Texas, and within the corpgrate limits of said City of Lubbock, for a term of ten (10) years, beginning the 1st day of October, 1987, and termi- nating on the 30th day of September, 1997, and said lease shall b6 automatically extended for an additional term of five (5) years from the 1st day of October, 1997, to the 30th day of September, 2002, unless either party to this agreement shall give written notice of termination to the other party before the expiration of � the ten (10) year term, and provided said lease is not terminated earlier by mutual agreement, or as hereinafter provided. Section 2 Concessioner agrees as an independent contractor to operate all concessions in said Joyland Amusement Park in a manner that will be acceptable to the City of Lubbock, the Lubbock Parks and Recreation Board and the Texas State Parks Board, or their duly au- thorized agents, and in accordance with all laws, rules, regula- tions and ordinances of the City of Lubbock, the Lubbock Parks and Recreation Board, the State of Texas and the Texas State Parks Board. This agreement applies to all existing laws, rules, regula- tions and ordinances and all laws, rules, regulations and ordi- nances hereinafter enacted or which may become effective while this agreement remains in force. Section 3 Concessioner further agrees, binds and obligates itself to keep said Joyland Amusement Park in a clean and sanitary condition, and to maintain all plants, trees, grasses, buildings and improve- ments in such a state of repair as the same are in at the commence- ment of this lease, reasonable use and wearing thereof excepted, and plants, trees, grasses, buildings and improvements placed in said Joyland Amusement Park during the term of this agreement shall be maintained in such a state of repair as the same are in at the time of their installation or construction, reasonable use and wearing thereof excepted. In helping to maintain Joyland Amusement Park, the City agrees to furnish a parking lot or lots of suffi- - 2 - r 0 M cient size to meet the needs of the public in its use of said Joy- . t . land Amusement Park. The City also agrees to provide water to Con- cessioner. Section 4 Concessioner agrees to make capital improvements on Joyland Amusement Park commensurate with the growth in gross revenues generated by said Joyland Amusement Park and which, in this Concessioner's opinion, will enhance the value, patrons' use and revenue of Joyland Amusement Park, and any permanent improvements such as buildings, etc. so erected by Concessioner on the leased premises shall become the property of the City at the expiration of this lease agreement; provided, however, that all temporary improvements such as rides, etc. shall remain the personal and removable property of Concessioner. Section 5 Concessioner shall maintain at all times during the term of . this agreement, at Concessioner's sole expense, insurance with an insurance underwriter acceptable to the City and authorized to do business in the State of Texas, as follows: (1) Comprehensive General Liability Insurance in the amount of ONE MILLION AND N01100 bOLLARS ($1,000,000.00) (Combined Single Limit) for Bodily Injury and Property damage claims resulting from Concessioner's business ac- tivities upon the leased premises. The City of Lubbock is to be named as an additional insured on this policy, and a copy of the endorsement naming the City as an addi- - 3 - ' � V tional insured is to be attached to or indicated on the certificate of Insurance. (2) Fire and Extended Coverage Insurance on all improvements located on the premises in amounts sufficient to cover replacement costs of such improvements or the maximum for which the same are insurable, whichever is less. The City of Lubbock is to be named as insured on this policy. (3) Boiler Insurance on any device defined as a boiler by the laws of the State of Texas. Concessioner shall also com- ply with all of the State's registration and inspection requirements for boilers. (4) Workers' Compensation Insurance sufficient to meet statu- tory requirements. City reserves the right to require Concessioner to secure ad- ditional amounts of insurance from time to time throughout the term of this agreement which the City deems necessary to protect its in- terests and the interests of members of the public who visit Joy - land Amusement Park, but any requirement for additional insurance :E shall be based on such factors as construction of additional facil- ities, increased usage of facilities and inflation. In the event of loss, in whole or in part, of any permanent improvement insured pursuant to the provisions of this agreement, the Concessioner shall apply all proceeds received from such insur- ance toward either (1) rehabilitation or repair of such improve- ment, or at the option of the City (2).the construction of new im- provements. - 4 - U v If, during the term of this agreement, Concessioner's improve- ments are totally or partially destroyed from a risk required to be covered by the insurance described in this section, or otherwise covered by insurance, this agreement shall not terminate, and Con- cessioner shall timely restore or cause to be restored the improve- ments to substantially the same condition as existed immediately before such destruction, whether or not the insurance proceeds are sufficient to cover the actual cost of restoration: Where the risk was not required to be covered by insurance as set forth in this Section, Concessioner shall only be required to restore improve- ments to the extent of the insurance proceeds received. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City Secretary prior to entry upon the leased premises by the Concessioner. 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 the City of Lubbock, Texas, of any alteration, renewal or cancellation of its terms and that such policy will re- main in full force and effect until ten (10) days after such notice is received by the City Secretary. Section 6 The City and its duly authorized agents and representatives are hereby authorized by Concessioner to at all times and seasons enter Joyland Amusement Park and all buildings and equipment on the leased premises for the purpose of inspecting the entire area for all lawful purposes, and to inspect and audit all books, records, - 5 - 0 .0 0 files and other matters pertinent thereto, which Concessioner shall at all times maintain and make available to the City's agents and representatives; and further, the City retains the right to make improvements in Joyland Amusement Park in cooperation with Conces- sioner which, in the discretion of the City, are necessary or de- sirable in order that the public might obtain full enjoyment of such preiises. Section 7 Concessioner agrees to notify and request approval in writing from the City's Director of Parks and Recreation for any and all changes, additions or alterations in the design and placement of facilities in Joyland Amusement Park. Section 8 Concessioner shall at all times maintain a consecutively num- bered ticket system, and a detailed report of Concessioner's gross income from all sources shall be furnished to the City, together with the money which shall be due and owing to the -City as a result of each month's operations, on the loth day of the following month, and further, Concessioner is hereby required to keep complete, ac- curate and detailed financial bookkeeping records which shall be subject to audit as hereinabove provided. Section 9 The consideration for the execution and acceptance of this lease agreement is payable as follows: As a part of the consideration for the execution of this agreement, Concessioner shall pay to the City a monthly rental - 6 - M I C) W] based on gross receipts from amusement rides according to the following scale: $ 0.00 to $250,000 5% $250,000 to $275,000 51% $275,000 to $300,000 6% $300,000 to $325,000 61% $325,000 to $350,000 7% $350,000 to $375,000 71% $375,000 to $400,000 8% $400,000 to $425,000 80 $425,000 to $450,000 9% $450,000 to $475,000 91% $475,000 ' to $500,000 10% and further, that a percentage on the gross receipts for all food concessions other than rides will be two percent (2%) and will be raised one half percent (.5%) according to the in- crease in amusement ride revenue as stated above. It is understood and agreed by and between the parties that "gross take on all rides" shall be construed to mean all sums of money coming into the hands of Concessioner as a re- sult of the operations of Joyland Amusement Park after the "deduction of'all amusement taxes." Section 10 Concessioner covenants that it will not assign this lease, nor sublet the whole or any part of the leased premises without first having obtained the written consent and approval of the Director of - 7 - Parks and Recreation of the City of Lubbock and the Parks and Recreation Board and, when required, the consent of the Texas State Parks Board. Section 11 If Concessioner shall neglect or otherwise fail to perform or observe any of the covenants contained in this instrument which are to be performed by Concessioner, or shall be declared bankrupt ac- cording to law, or if any assignment shall be attempted to be made of said leased premises for the benefit of creditors, the City may lawfully and immediately or at any time thereafter, and without further notice or demand, enter into and upon the leased premises, or any part thereof in the name of the whole, and repossess the same, and expel Concessioner and remove Concessioner's effects without being deemed guilty of any manner of trespass, and without prejudice to'any remedies which might otherwise be used for obtain- ing possession of the premises or rent in arrears, and upon entry as aforesaid the rights of Concessioner in this lease shall cease and be ended. Section 12 It is mutually agreed and understood by and between both par- j. ties hereto that at the expiration of this lease the same may be renewed for a period not to exceed ten (10) years, with the terms and conditions to be agreed upon by both parties. 8 - .w THIS AGREEMENT IS EXECUTED IN QUADRUPLICATE this, the 13th day of August , 1987. CITY OF LUBBOCK BY: .CJ . .y/r C . C. M MI N, MAYOR ATTEST: RanetteV6yd, City Secret r APPROVED TO CONTENT: Lee Osborn, Director of Parks and Recreation APPROVED AS TO FORM: arold Willard, Assistant City Attorney MACKENZIE PARK PLAYGROUND, INC. d/b/a JOYLAND AMUSEMENT PARK BY: TEXAS STATE PARK'S BOARD BY: - 9 - xesoiurion No. 3vy4 February 8, 1996 Item #15 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a First Amendment to Joyland Amusement Park Lease Agreement, attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 8th day of February , 1996. ATTEST: Betty M. johnso—n,VCity Secretary APPROVED A$ -TO CONTENT: C,afolyn Oiamus, Direct r of Culture afid Leisbre Services APPROVED AS TO FORM: 4-('9-a k4AS� arold Willard, Assistant City Attorney HW:da/ccdocs/ajoylnd.rrs January 30, 1996 Resolution No. 5094 February 8, 1996 Item #15 FIRST AMENDMENT TO JOYLAND AMUSEMENT PARK LEASE AGREEMENT THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § THIS Amendment is made and entered into by and between the CITY OF LUBBOCK, TEXAS, hereinafter called "City," and MACKENZIE PARK PLAYGROUND, INC. d/b/a JOYLAND AMUSEMENT PARK, hereinafter called "Concessioner." WITNESSETH: WHEREAS, on or about the 13th day of August, 1987, City and Concessioner executed an agreement whereby City leased to Concessioner all of the area in Mackenzie Park known as Joyland Amusement Park for a term of ten (10) years and an additional term of five (5) years; and WHEREAS, both parties for good and valuable consideration now desire to modify the length of the initial term of the above -described agreement to enable Concessioner to obtain financing for improvements to the park facility; and WHEREAS, both parties to this Amendment also desire to delete or eliminate those provisions in the agreement requiring approval or consent of the Texas Parks and Wildlife Department because such approval or consent is no longer required; NOW THEREFORE: The agreement hereinabove referred to is hereby amended in the following manner: 1. Section 1 of the agreement is amended to read as follows: That for and in consideration of the rental as hereinafter provided, the City of Lubbock does hereby lease and let to Concessioner all of the area in Mackenzie Park known as Joyland Amusement Park, in the County of Lubbock, State of Texas, and within the corporate limits of said City of Lubbock, for a term beginning the 1 st day of October, 1987, and terminating on the 28th day of February, 2006, and said lease shall be automatically extended for an additional term of five (5) years from the 1 st day of March, 2006, to the 28th day of February, 2011, unless either party to this agreement shall give written notice of termination to the other parry before the expiration of the initial teen, and provided said lease is not terminated earlier by mutual agreement, or as hereinafter provided. 2. That the phrase "subject to the approval of the Texas Parks and Wildlife Department" contained in the first paragraph on page 1 of the agreement is hereby deleted from the agreement. 3. That the phrase "and the Texas Parks and Wildlife Department" contained in Section 2 of the agreement is hereby deleted from the agreement. 4. That the phrase "and, when required, the consent of the Texas Parks and Wildlife Department" contained in Section 10 of the agreement is hereby deleted from the agreement. 5. That the agreement between the City and Concessioner to which this Amendment is applicable shall be modified and amended only as expressly stated herein and is hereby ratified and affirmed in all other respects. 111" EXECUTED THIS 8th day of February , 1996. OF BOCK MACKENZIE PARK PLAYGROUND, INC. /� d/b/a JOYLAND AMUSEMENT PARK R. LANGSTON, MA ATTEST: ,. BettyM. Johnson, City Secretary !� r APPROVED Ai TO O, ENT: C/drOlyn oiamus, Director of cure d Leisfire Services APPROVED AS TO FORM: A" a wa Harold Willard i Asszd stant City Attorney HW:da/cityatt/a joylnd.doc January 30, 1996 Y: /L/L FIRST AMENDMENT TO JOYLAND AMUSEMENT PARK LEASE AGREEMENT Page 2 Apr-19-01 01:10P 1'.ua RESOLUTION NO.5428 +� Item #16 February 27, 1997 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Second Amendment to the Joyland Amusement Park Lease Agreement, attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council thiS 27rh day of February , 1997. • ATTEST: Kathi'eddParnell, City Secretary APPROVED AS, TO CONTENT: Carolyn Aliamus-Somma, Dire or of ` Culture.and Leisure Services APPROVED AS TO FORM: J?qfild G. VaOver, First Assistant City Attorney vQv:Pk=hyhyW2jq Fehnury 3.1997 Apr-19-01 01:20P SECOND AMENDMENT JOYLAND AMUSEMENT PARK LEASE AGREEMENT THE STATE OF TEXAS P.01 A-64VbV11Vn nu. a.-V Item f 16 February 27, 1997 KNOW ALL MEN BY THESE PRESENTS COUNTY OF LUBBOCK THIS Second Amendment to the Joyland Amusement Park Lease Agreement entered into by and between the City of Lubbock, Texas, hereinafter called "City," and MacKenzie Park Playground, Inc., d/b/a Joyland Amusement Park, hereinafter called "Concessioner." WITNESSETH: WHEREAS, on or about the 13th day of August, 1997, City and Concessioner executed a Lease Agreement whereby the City leased to Concessioner all of the area in Mackenzie Park for a term of ten (10) years with an additional term of five (5) years; and WHEREAS, the term of said Lease Agreement has been extended to the 28th day of February, 2006, with an optional extensions of five (5) years in a First Amendment to said Lease Agreement which was executed by the parties hereto on or about the 8th day of February, 1996; and WHEREAS, both parties for good and valuable consideration desire to ftu7lter amend said Lease Agreement by amending Section 9 to read as follows. Section 9 The consideration for the execution and acceptance of this Lease Agreement is payable as follows: As a part of the consideration for the execution of this agreement, Concessioner shall pay to the City a monthly ren! tal based`oa Qross receip from Joyland Amusement Park according to the following scale: OTHER RIDES RECEIPTS $ 1 to $250,000 5% 2% 4C-- $250,001 to S275,000 51/2% 21/2% S275,001 to S300,000 6% 3% S300,001 to S325,000 61/2a/a 31/2% S325,001 to $350,000 7a/a 4% JOYLAND AMUSEMENT PARK[ ADDITIONS AND IMPROVEMENTS 1989 1990 1991 1992 1993 1994 1995 Addition of the Round -Up Ride Added the animated Bonanza Shooting Gallery Replaced the Go -Karts with the Galaxie Coaster Our desire was to enhance the family atmosphere Expanded the midway Built a new building and moved the Bonanza Shooting Gallery Built another building for. The Shoot Out The Star Game Additional arcade equipment Concession Shade and picnic tables New Entrance and additional gates Resurfaced the Midway Added the Rock-O-Plane Ride Built an additional games building and added: The Frog Game Hot Shots Basketball Game Added the Dart Game Added the Space Shuttle Ride Water Wars Game "Sunport" shade and additional tables with benches Resurfaced the Midway New Arcade games New and Expanded Games Redemption Area Outdoor air conditioning - mist system GROSS REVENUE ON RIDES AND CONCESSION Percentage Gross To City Income .F% Rides: $250,000.00 at 5% $12,500.00 $291,288.96 $ 41,288.96 at 5 1/2% 2,270.89 Concession: $ 43,250.93 at 2% 897.30 43,250.93 TOTAL $16,668.19 334 539.89 1990 Rides: $250,000.00 at 5% $12,500.00 $292.427.95 $ 42,427.95 at 51 /2% 2,333.54 Concession: $ 44,4315.05 at 2% 886.30 44.31 5.05 TOTAL $16,719.04 $336,743.00 1991 Rides: $250,000.00 at 5% $12,500.00 $304,940.17 $ 54,940.17 at 51/2% 3,021.71 Concession: $ 49,461.81 at 2% 989.24 49.461.81 _ TOTAL 0.95 $364,401.98 1992 ,_$16,51 Rides: $250,000.00 at 5% $12,500.00 $288,176.32 $ 38,176.32 at 51/2% 2,099.70 Concession: $ 53,541.88 at 2% 1,070.84 53,541.88 TOTAL 115,670.64 $341,718.20 1993 Rides: $250,000.00 at 5% $12,500.00 $316,402.55 $ 66,402.55 at 51/2% 3.652.14 Concession: $ 67,582.85 at 2% -1,351.66 67,582.85 TOTAL $17,603.8`_^, $383,985.40 1994 Rides: $218,227.83 at 5% $10,911.39 $283,265.45 $ 65,037.62 at 51/2% 3,577.07 Concession: $ 56,794.75 at 2% 1,218.48 56,794.75 TOTAL $15,706.94 $340,060.20 1996 Rides: $246,279.55 at 5% $12,313.98 $322,896.40 $ 76,616.85 at 51/2% 4,213.93 Concession: $ 62,405.97 at 2% 1,319.84 62=405.97 TOTAL $17,847.75 $385,302.37 r k Contract M Change Order* Requisition #: 1TB# / RFP# I RFQ# (If Applicable): CONTRACT COVER SHEET See Step -by -Step Contracting Process on CLIC for Instructions (Type or Print all information spills the exception of Signatures and Signature Dates) vorward the complete contract package to Contract Management, Municipal Building Suite 204, for review, approval and contract execution. The complete package includes one (1) copy or the completed Contract Cover Sheet (for internal City use only), minimum of three (3) originals of the contract or amendment; and minimum of three (3) originals of all other certifications and contract addenda. Attached Contract must be "Approved as to Content" by Director and "Approved as to Form" by Legal. The following signatures are required to process Contract Cover Sheet. IMPORTANT: Each person vrho signs the Contract Cover Sheet must carefull) review the attached contract document before signine the contract corer sheet Risk Manager. Ins Cart Reqd: Date Dir of Fiscal Policy Date: Asst City ManagedChtef: Date: Originating Dept and Individual Responsible for Ensuring Contract Terms and Contract Compliance: _ — Department: LParks and Recreation Name: Randy Truesdell Phone Number. 806.775.2671 Title: ! Community Services Director Information for Vendor/Contractor/Agency or Other Entity City of Lubbock is Contracting With: Name of Entity: Joyland Amusement Park Address: L Mackenzie Park City: Lubbock State: LTX _+ Zip: 79404 Contact Name: David Dean Contract Signatory: David Dean 1 Title: Operator Phone M F8_o�763.2719 Fax #: E-mail: Contract Information: Brief Description of Goods or Services or arrangements covered by the terms of the contract: ' Joyland Amusement Park Lease Agreement, First Amendment - to modify the length of the initial term from 2/28/06 to 2128111 and to delete 'Texas Parks and Wildlife" from agreement - Section 1 Effective Date, F][g Upon Execution by Authorized Signatories OR Other (Specify Date): 2/08/1996 End Date: Notice To Proceed + (Specify # of Days) OR Other (Specify Date): 2/2812011 Financial Information Cost Center. Account* Amount: Not To Exceed: $Based on Other: monthly rental based on gross receipts from amusment rides according to scale In contract. ContmaComShect doc (Rev 01Y09/05) Contract #: Change Order #: Will Contract Yes, see amount below Generate If so, amount: $Based on Revenue: monthly rental based on gross receipts from amusment rides according to scale in contract. Requisition M ITB# I RFP# I RFQ# (If applicable): Project Number (if applicable): Reviewed by Purchasing/Contract Manager: Will Contract Be Paid From Grant Funds: No Notes: Date Con=1CovcrShcet.doc (Rev O6/09/05) Contract Form and Signatory Contract: General Agreement Signatory: Mayor Contract Checklist (Not applicable to Grange Orders or Antendtnents) 1. Is this individual or owner of this business an officer or employee of the City of Lubbock? No [Note: if Yes, City policy may not allow us to write a contract for this individuaVvendor.] If unsure, check with Legal. 2. Are all documents in order and submitted at least 5 business days prior to the start date for services for standard contracts or at least 20 business days prior to start date for services if using a non-standard contract? Contract will begin "Date of Full Execution" (Note: If No, and not associated with a building repair, complete a'Justification for Untimely Contract Submittal' form.] 3. Does the contract, Licensing Agreement, insurance or other document requiring signature originate from the vendor? Yes - SEE NOTE [Note: If Yes, must be reviewed by Legal. Forward to Purchasing Department.] 4. Does the contract involve work by the contractor on City owned property? No (Note: If Yes, contact Risk Management at (806) 775-2277.) 5. Does the contract involve the purchase of hardware, software, firmware or computer component acquisition? No [Note: If Yes, A Purchase Requisition from Information Technology is required. Contact IT at (806) 775-2374.) 6. Does the contract involve a ourchase valued at $2,500 or more? No [Note: If Yes, A Purchase Requisition is required. For assistance, contact your Buyer in the Purchasing Department.) 7. Does the contract involve a Purchase valued at $25,000 or more? No ~ [Note: If Yes, Formal Competitive Sealed Bidding is required. For assistance, contact your Buyer in the Purchasing Department.) 8. Does the contract involve Consulting Services valued at $25,000 or more? No [Note: If Yes, requires Request for Qualifications. Contact Purchasing Manager (806) 775-2165.) 9. Does the contract involve purchase of construction valued at $25,000 or more? No [Note: If Yes, Requires Payment Bond.] 10. Does the contract involve purchasie of construction valued at $100,000 or more? No [Note: if Yes, contract requires Performance Bond] 11. Does the contract include language for Insurance Requirements? No (Note: if Yes, contact Risk Management at (806) 775-2277.) 12. If slate funded, does the contract require language for Child Support certification? Not Applicable [Note: If Yes, attach Child Support Certification, form OCA-S-99-25 for state funded acquisition.] 13. If federal or state funded, does the contract include all clauses required by federal or state statutes and executive orders and their implementing regulations? Not Applicable 14. If the purchase/transaction involves the purchase, lease, acceptance as a gift, etc. of real estate, has an environmental site assessment (ESA) been performed on the property? Not Applicable [Note: If No, contact Environmental Compliance at x2880 or x2119.1 Contract Award by City Council (enter applicable information) Council Date: 2/811996 Council Agenda Item #: 15 Resolution # 5094 The complete package includes one (1) copy of the completed Contract Cover Sheet (for internal City use only); minimum of three (3) -inginals of the contract or amendment; and minimum of three (3) originals of all other certifications and contract addenda. Forward the .)mplete contract package to Contract Management, Municipal Building Suite 204,for review, approval and contract execution. ConnactCoverSheet doc (Rev 06/09105) h-me t�d r,.e� -6 196? Contract Summary Contract Title: 5094, Resolution; Joyland Amusement Park 2-08-1996; Lease Amendment Project/Purpose: Amending the agreement leasing all the area in Mackenzie State Park known as Joyland Amusement Park to Mackenzie Park Playground, Inc. Execution Date: February 8, 1996 End Date: Extended to 28'h day of February, 2006, and said lease shall be automatically extended for an additional term of five (5) years from the 1-' day of March, 2006, to the 28`h day of February, 20� 1, unless either party to this agreement shall give written notice of termination to the other party before the expiration of the initial term, and provided said lease in not terminated earlier by mutual agreement, or as hereinafter provided. Contract Amount: Concessioner shall pay to the City a monthly rental based on gross receipts from amusement rides according to the following scale: for gross receipts of $0 to $250,000 Mackenzie Park Playground, Inc. pays 5% to the City, $250,000 to $275,000 pays 5.5%, ..., $475,000 to $500,000 pays 10% to the City (for each additional $25,000, up to $500,000, the percentage rate increases by one-half percent, 0.5%). Further, a percentage on the gross receipts for all food concessions other than rides will be two percent (2%) and will raise one-half percent (0.5%) according to the same scale as amusement ride receipts. It is understood and agreed by and between the parties that "gross take on all rides" shall be construed to mean all sums of money coming into the hands of the Concessioner as a result of the operations of Joyland Amusement Park after the "deduction of all amusement taxes". Payment Timing/Procedure: Concessioner shall pay on the 10`h day of the following month to the City a monthly rental based on gross receipts from amusement rides and food concessions as listed above. Contractor: Mackenzie Park Playground, Inc. d/b/a Joyland Amusement Park r,tOD Point of Contact & Tel #: Dean, no phone number given "7 (,p _:� Contract Administrator: Corbin Pemberton, (806) 775-2689 Mandatory Reports/ Meetings: (1) The City also agrees to provide water to Concessioner. (3) The City and its duly authorized agents and representatives are hereby authorized by Concessioner to at all times and seasons enter Joyland Amusement Park and all buildings and equipment on the leased premises for the purpose of inspecting the entire area for all lawful purposes. (4) Concessioner agrees to notify and request approval in writing from the City's Director of Parks and Recreation for any and all changes, additions or alterations in the design and placement of facilities in Joyland Amusement Park. (5) Concessioner shall maintain the following: 1 of 3 5094, Resolution; Joyland Amusement Park 2-08-1996; Lease Amendment a. Consecutively numbered ticket system, b. Detailed report of gross income from all sources to be famished to City, and c. Complete, detailed and accurate financial bookkeeping records which shall be provided subject to audit. Performance Standards: (1) Concessioner further agrees, binds and obligates itself to keep said Joyland Amusement Park in a clean and sanitary condition, and to maintain all plants, trees, grasses, buildings and improvements in such state of repair as the same are in at the commencement of the lease, reasonable use and wearing thereof excepted, and plants, trees, grasses, buildings and improvements placed in said Joyland Amusement Park during the term of this agreement shall be maintained in such a state of repair as the same are in at the time of their installation or construction, reasonable use and wearing thereof excepted. Deliverables: NA Insurance: Concessioner shall maintain at all times during the term of this agreement, at Concessioner's sole expense, insurance with an insurance underwriter acceptable to the City and authorized to do business in the State of Texas, as follows: Comprehensive General Liability Insurance ($1,000,000.00), Fire and Extended coverage, Boiler Insurance, and Workers' Compensation Insurance. City reserves the right to require Concessioner to secure additional amounts of insurance from time to time. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City Secretary prior to entry upon the leased premises by the Concessioner; each policy shall name the City as additional insured. General: Concessioner agrees to make capital improvements on Joyland Amusement Park commensurate with the growth in gross revenues generated by said Joyland Amusement Park and which, in this Concessioner's opinion, will enhance the value, patrons' use and revenue of Joyland Amusement Park, and any permanent improvements such as buildings, etc. so erected by Concessioner on the leased premises shall become the property of the City at the expiration of this lease agreement; provided, however, that all temporary improvements such as rides, etc. shall remain the personal and removable property of Concessioner. Amendments WHEREAS, on or about the 13`h day of August, 1987, City and Concessioner executed an agreement whereby City leased to Concessioner all of the area in Mackenzie Park known as Joyland Amusement Park for a term of ten (10) years and an additional term of five (5) years; and WHEREAS, both parties for good and valuable consideration now desire to modify the length of the initial term of the above -described agreement to enable Concessioner to obtain financing for improvements to the park facility; and WHEREAS, both parties to this Amendment also desire to delete or eliminate those provisions in the agreement requiring approval or consent of the Texas Parks and Wildlife Department because such approval or consent is no longer required; NOW THEREFORE: The agreement is amended in the following manner: (1) Section 1 of the agreement is amended to read as follows: 2of3 5094, Resolution; Joyland Amusement Park 2-08-1996; Lease Amendment a. That for and in consideration of the rental as hereinafter provided, the City of Lubbock does hereby lease and let to Concessioner all the area in Mackenzie Park known as Joyland Amusement Park, in the County of Lubbock, State of Texas, and within the corporate limits of said City of Lubbock, for a term beginning the I" day of October, 1987, and terminating on the 28`h day of February, 2006, and said lease shall be automatically extended for an additional term of five (5) years from the V' day of March, 2006, to the 281b day of February, 2011, unless either party to this agreement shall give written notice of termination to the other party before the expiration of the initial term, and provided said lease in not terminated earlier by mutual agreement, or as hereinafter provided. b. That the phrase "subject to the approval of the Texas Parks and Wildlife Department" contained in the first paragraph on page 1 of the agreement is hereby delete from the agreement. c. That the phrase "and the Texas Parks and Wildlife Department" contained in Section 2 of the agreement is hereby deleted from the agreement. d. That the phrase "and, when required, the consent of the Texas Parks and Wildlife Department" contained in Section 10 of the agreement is hereby deleted from the agreement. e. That the agreement between the City and Concessioner to which this Amendment is applicable shall be modified and amended only as expressly stated herein and is hereby ratified and affirmed in all other respects. 3 of 3 5094, Resolution; Joyland Amusement Park 2-08-1996; Lease Amendment Resoludon No. 2006-ROSOS October 13, 2006 Item No. 5.38 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby authorizes and directs the Mayor of the City of Lubbock to execute a Third Amendment to a Lease Agreement by and between the City of Lubbock and Mackenzie Park Playground, Inc., d/b/a Joyland Amusement Park of Lubbock, Texas for additional land for installation of a new roller coaster ride, which Third Amendment and any associated documents, are attached hereto and made a part of this Resolution for all intents and purposes. Passed by the City Council this 13tb day of bctober , 2006. z- DAVID A. lYftLER, MJ6 .R ATTEST: Rebecca Garza, City Secretary APPROV D AS TO CONTENT: 1'?'1Ae00017 Rarldy truWdell, Parks and Recreation Director APPROVED AS TO FORM: Vandiver, Attorney DDres/loytandL.eascAmendo6Res September 26, 2006 Resolution No. 2006-RO505 October 13, 2006 Item No. 5.38 THIRD AMENDMENT JOYLAND AMUSEMENT PARK LEASE AGREEMENT STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § THIS THIRD AMENDMENT to the Joyland Lease Agreement of August 13, 1987, is entered into by the City of Lubbock (referred to herein as "City"), a home rule municipality of Lubbock County, Texas, and Mackenzie Park Playground, Inc., d/b/a Joyland Amusement Park (referred to herein as "Concessioner" ). WITNESSETH: WHEREAS, on or about August 13, 1987, City and Concessioner executed a Lease Agreement whereby the City leased to Concessioner lands located in Makenzie Park for a term of ten (10) years with an additional term of five (5) years; and WHEREAS, both parties for good and valuable consideration on or about February 8, 1996, modified the initial tern of said Lease Agreement in a First Amendment to enable Concessioner to obtain financing for improvements to the park facility; and WHEREAS, both parties for good and valuable consideration on or about February 27, 1997, further modified said Lease Agreement in a Second Amendment with regard to lease payments; and WHEREAS, both parties for good and valuable consideration desire to further amend said lease agreement with regard to its term, land leased and lease payments to enable Concessioner to obtain financing for further improvements to the park facility; NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms and conditions, both general and special, as hereinafter set forth, City Lease Agreement of August 13, 1987, as amended by First and Second Amendments is hereby further amended as follows: Section 1 That for and in consideration of the rental as hereinafter provided, the City of Lubbock does hereby lease and let to Concessioner all of the area within Mackenzie Park known as Joyland Amusement Park and such additional lands in the County of Lubbock, State of Texas, within the corporate limits of the City of Lubbock, as are further described by metes and bounds on Attachment A hereto and as indicated on the map attached hereto as Exhibit B. Both of said exhibits are incorporated herein and made a part hereof for all purposes. The tern of this Iease shall be from the date of execution hereof by the parties through October 31, 2021, unless either party to this agreement shall give written notice of termination to the other party before the expiration of the initial term, and unless said agreement is not terminated earlier by mutual agreement, or as hereinafter provided. Section 9 The consideration for the execution and acceptance of this Lease Agreement is payable as follows: An annual payment of $38, 333 per year to be paid in four payments of $9,583.25 due June 1, July 1, August 1 and September 1. The first payment will be due June 1, 2007. Additional Provisions 1. The City will remove such park playground equipment as may be reused from the area of the Joyland expansion. Concessioner will be responsible for any additional demolition required in the expansion area. 2. Concessioner will be responsible for construction of new parking lots needed for the expansion. Such lots shall be located on land adjacent to the expansion owned by the City and the City shall have joint use of such new parking lots. 3. Concessioner shall be responsible for any archeological and environmental testing and reported required as part of the expansion. 4. That the Lease Agreement and the amendments thereto are modified and amended only as expressly stated herein and all other provisions shall remain in full force and effect. EXECUTED this 13th day of October , 2006. CITY OF LUBBOCK: 00, DAVID . MILLER, YOR ATTEST: Re ecca Garza, City Secretary CONCESSIONER: 4�s APPROVE AS 0 C ENT: Randy Trueidell,arls and Recreation Director APPROVED TO FORM: ,�.4 r%,,(-7'-W 17- on an iver, AttorA of Counsel ddlcoN7oyWxiLsaseAmen9 September 26, 2006 L. •Cl X't'M. AS'4� Li*:'.n j •.101 ir A L. r•"q)-4 ie V MO, A� 54 1�4 gN0"'. O VS.:. , TV-11 . . A - , N-- . •M 4.. , r ':i'M•-►.�•ti,,n. , 4t t e ♦ .-i a r } s - .e'.� „�',•"`ram`:] +- "`•f y' - Y. i.i 4e' M2 tk - .4, .' v4jr z 'At, v ;4-A tlki LIN - vj ZIA It -iOn r .0,71 A ­1 V. my Resolution No. 2006-RO50! October 13, 2006 Item No. 5.38 ATTACHMENT A A 2.24 ACRE TRACT OF LAND IN MACKENZIE PARK, CITY OF LUBBOCK, TEXAS BEGINNING at a point which is the intersection of fence on the approximate North Right -of - Way line of U.S. Highway 62/82 and a fence which is the present Westerly boundary of an existing amusement park, described in Attachment "B" of prior agreement. THENCE Westerly, with the 4 foot chain link fence on the North R-O-W line of U.S. Highway 62182 a distance of 408.2750 feet to a 16p nail in said fence; THENCE Northerly, with said fence a distance of 271.1993 feet at 87A37'30.8" to a 16p nail; THENCE Easterly, a distance of 310.9166 feet at 92A24'52.6" to a 2 518" existing 6 foot corner fence post at the South side of a parking lot; THENCE Southerly, following said 6 foot chain link fence on the west edge of said existing amusement park and a distance of 284.5290 feet at 107^34'43.6" to the Point of beginning. Prepared From sketch October 9, 2006 Client#: 5529 MACKEPAR ACORD.. CERTIFICATE OF LIABILITY INSURANCE DATEIMMIDDIYYYY) 04/28/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES 3ELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: if the certificate holder is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER } i N21,1:CT Haas & Wilkerson Insurance °NN : 913 432-4400 1 11Fffl'No 4300 Shawnee Mission Parkway .MAIL Fairway, KS 66205 ADOIIF-SS: 913 432-4400 INSU S AFFORDING COVERAGE MAX R INsu— . ACE American Insurance Company 22667 INSURED Mackenzie Park Playground dba INSURER e : Joyland Amusement Park INSURER C PO Box 2262 INSURER D., INSURERS: Lubbock,TX 79408 INSURER F : COVERAGES CERTIFICATE NUMBER: RcwcrnM ulHuaca: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS LTR-R TYPE OF INSURANCE ADD POLICY NUMBER POLICY EFF POLICY EXP uMns A -� GENERAL LUIBILITY X COMMERCIALGENERALLIABILRY CLAIMS.MADE E-R OCCUR G23976936 4130/2014 04/301201 OCCURRENCE $1 000 000 P n.O MI., $100000 MED EXP Arty one person) Sexcluded PERSONAL 6 ADV INJURY S11000.000 GENERAL AGGREGATE s5 000,000 GENtAGGREGATE LIMIT APPLIES PER. X POLICY P LOC PRODUCTS -COMPIOPAGG s5000000 S AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS HIRED AUTOS �O�NED COMURED SINGLE LIMI BODILY INJURY (Per penon) S BODILY INJURY (Per accident) S PROPERTY S s UMBRELLA UAe EXCESS UAB CUUMS-MADE N I A EACH OCCURRENCE S AGGREGATE S DED RETENTION WC STATU• OTW S WORKERS COMPENSATION AND EMPLOYERS' IJABtLITYFR ANY PROPRIETOWPARTNER/EXECUTIYE Y 1 N OFFICERIMEMBER EXCLUDED) (Mandatory In NH) H yes describe under DESCRIPTION OF OPEgAnQNS below E.L. EACH ACCIDENT S E.L DISEASE -EA EMPLOYEE S E L DISEASE - POLICY LIdtT f DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) Additional Insured: City of Lubbock City of Lubbock Parks SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN and Recreation ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 2000 Attn: Randy Truesdell AUTHORIZED REPRESENTATIVE Lubbock, TX 79457 01988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) 1 of 1 The ACORD name and logo are registered marks of ACORD #S181796/M181795 FRANL POLICY NUMBER: G23976936 COMMERCIAL GENERAL UABIUTY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Persons Or Organization(s) 1. The organization that manages the event. 2. The political sub -division who grants you permission to operate at the event. 3. The owner of the premises on which the event is being held. 4. The landlord or lessor of the premises on which the event is being held. 5. The Promoter(s) of the event. 6. The Sponsor(s) of the event. 7. The organization for whom you are performing operations at the event. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section ll — Who Is An Insured is amended to in- clude as an additional insured the person(s) or organi- zations) shown in the Schedule, but only with respect to liability for "bodily injury', "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omis- sions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. LD-1V08 (03/07) CG 20 26 07 04 ® ISO Properties, Inc., 2004 Page 1 of 1 O Contract #: Change Order #: Requisition #: ITB# / RFP# / RFQ# (If Applicable): CONTRACT COVER SHEET See Step -by -Step Contracting Process on CLIC for Instructions (Type or Print all information with the exception of Signatitres and Signature Dates) t;onvard the complete contract package to Contract Management, Municipal Building Suite 204, for review, approval and contract execution. The complete package includes one (1) copy of the completed Contract Cover Sheet (for internal City use only); minimum of three (3) originals of the contract or amendment; and minimum of three (3) originals of all other certifications and contract addenda. Attached Contract must be "Approved as to Content" by Director and "Approved as to Form" by Legal. The following signatures are required to process Contract Cover Sheet. IMPORTANT: I ach person who signs the Contract Cuver Sheet must ca refull) rc%ic%� the attached contract document before signing the contract cover sheet. Risk Manager. Ins Cert Reqd: Date: Dir of Fiscal Policy Date: Asst City Manager/Chief. Dale: Originating Dept and Individual Responsible for Ensuring Contract Terms and Contract Compliance: Department: Parks and Recreation Name: Randy Truesdell Phone Number. L806.75.2671 Title: Community Services Director Information for Vendor/Contractor/Agency or Other Entity City of Lubbock is Contracting With: Name of Entity: Joyland Amusement Park Address: Mackenzie Park — y City: Lubbock Slate: —� Zip: 79404 _N�� Contact Name: David Dean Contract Signatory: [ David Dean Title: I Operator Phone #: 806.763.2719 Fax #: `y ^~i ^� E-mail: Contract Information: Brief Description of Goods or Services or arrangements covered by the terms of the contract Joyland Amusement Park Lease Agreement, Second Amendment - concessioner shall pay City a monthly rental based on gross receipts according to scale in agreement - Section 9 _ Effective Date: �01 Upon Execution by Authorized Signatories OR Other (Specify Date): 2127/1997 End Date: Notice To Proceed + (Specify # of Days) OR Other (Specify Date): 2/28/2011 Financial Information Cost Center. Account #: Amount: Not To Exceed: $Based on Other monthly rental based on gross receipts from amusment rides according to scale in contract ContmctCovcrShcet doc (Rev 00109105) Contract #: Change Order #: Requisition #: ITB# / RFP# / RFQ# (Ir applicable): Will Contract Yes, see amount below Generate If so, amount: $Based on Revenue: monthly rental based on gross receipts from amusment rides according to scale in contract. Reviewed by Purchasing/Contract Manager. Project Number (if applicable): Will Contract Be Paid From Grant Funds: No Notes - Date: ContmctCoverShcet doe (Rev O6109/05) Contract Form and Signatory Contract: General Agreement Signatory: Mayor Contract Checklist , to Change Orders or Amendments) Is this individual or owner of this business an officer or employee of the City of Lubbock? No [Note: If Yes, City policy may not allow us to write a contract for this individuallvendor.] If unsure, check with Legal. 2. Are all documents in order and submitted at least 5 business days prior to the start date for services for standard contracts or at least 20 business days prior to start date for services if using a non-standard contract? Contract will begin "Date of Full Execution" [Note: If No, and not associated with a building repair, complete a "Justification for Untimely Contract Submittal' form.] 3. Does the contract, Licensing Agreement, insurance or other document requiring signature originate from the vendor? Yes - SEE NOTE [Note: If Yes, must be reviewed by Legal. Forward to Purchasing Department.] 4. Does the contract involve work by the contractor on City owned property? No (Note: If Yes, contact Risk Management at (806) 775-2277.) 5. Does the contract involve the purchase of hardware, software, firmware or computer component acquisition? No [Note: If Yes, A Purchase Requisition from Information Technology is required. Contact IT at (806) 775.2374 ) 6. Does the contract involve a purchase valued at $2,5D0 or more? No [Note: It Yes, A Purchase Requisition is required. For assistance, contact your Buyer in the Purchasing Department.) 7. Does the contract involve a purchase valued at $25,000 or more? No (Note: If Yes, Formal Competitive Sealed Bidding is required. For assistance, contact your Buyer in the Purchasing Department.) 8. Does the contract involve Consulting Services valued at $25,000 or more? No [Note: If Yes, requires Request for Qualifications. Contact Purchasing Manager (806) 775-2165.) 9. Does the contract involve purchase of construction valued at $25,000 or more? No [Note: If Yes, Requires Payment Bond.] 10. Does the contract involve purchasie of construction valued at $100,000 or more? No [Note: if Yes, contract requires Performance Bond] 11. Does the contract include language for Insurance Requirements? No (Note: If Yes, contact Disk Management at (806) 775-2277.) 12. If slate funded, does the contract require language for Child Support certification? Not Applicable [Note: If Yes, attach Child Support Certification, form OCA-S-99-25 for state funded acquisition.] 13. If federal or state funded, does the contract include all clauses required by federal or state statutes and executive orders and their implementing regulations? Not Applicable 14. If the purchase/transaction involves the purchase, lease, acceptance as a gift, etc. of real estate, has an environmental site assessment (ESA) been performed on the property? Not Applicable [Note: If No, contact Environmental Compliance at x2880 or x2119.) Contract Award by City Council (enter applicable information) Council Date: 2/27/1997 Council Agenda Item #: 16 Resolution #: 5428 The complete package includes one (1) copy of the completed Contract Cover Sheet (for internal City use only); minimum of three (3) originals of the contract or amendment; and minimum of three (3) originals of all other certifications and contract addenda. Forward the amplete contract package to Contract Management, Municipal Building Suite 204,for review, approval and contract execution. ContmctCovcrShccWoc (Rev 06/09/05) Contract Summary Contract Title: 5428, Resolution; Joyland Amusement Park 2-27-1997; Lease Amendment Project/Purpose: Amending the agreement leasing all the area in Mackenzie State Park known as Joyland Amusement Park to Mackenzie Park Playground, Inc. Execution Date: February 27, 1997 End Date: Extended to 281h day of February, 2006, and said lease shall be automatically extended for an additional term of five (5) years from the 1" day of March, 2006, to the 28'h day of February, 2011, unless gither party to this agreement shall give written notice of termination to the other party before the expiration of the initial tern, and provided said lease in not terminated earlier by mutual agreement, or as hereinafter provided Contract Amount: Concessioner shall pay to the City a monthly rental based on gross receipts from amusement rides according to the following scale: OTHER RIDES RECEIPTS $1 to $250,000 5.0% 2,0% $250,001 to $275,000 5.5% 2.5% $275,001 to $300,000 6.0% 3.0% $300,001 to $325,000 6.5% 3.5% $325,001 to $350.000 7.0% 4.0% $350,001 to $375,000 7.5% 4.5% $375,001 to $400,000 8.0% 5.0°% $400,001 to $425,000 8.5% 5.5% $425,001 to $450,000 9.0% 6.0°% $450,001 to $475,000 9.5% 6.5% $475,001 to $500,000 10.0% 7.0% More than $500,001 10.0% 7.0°% It is understood and agreed by and between the parties that "gross take on all rides" shall be construed to mean all sums of money coming into the hands of the Concessioner as a result of the operations of Joyland Amusement Park after the "deduction of all amusement taxes". Payment Timing/Procedure: Concessioner shall pay on the 101h day of the following month to the City a monthly rental based on gross receipts from amusement rides and food concessions as listed above. Contractor: Mackenzie Park Playground, Inc. d/b/a Joyland Amusement Park �)Pw o Point of Contact & Tel #: motes-E Dean, "� �� - 21 jq Contract Administrator: Corbin Pemberton, (806) 775-2689 Mandatory Reports/ Meetings: (1) The City also agrees to provide water to Concessioner. 1 off. 5428, Resolution; Joyland Amusement Park 2-27-1997; Lease Amendment (3) The City and its duly authorized agents and representatives are hereby authorized by Concessioner to at all times and seasons enter Joyland Amusement Park and all buildings and equipment on the leased premises for the purpose of inspecting the entire area for all lawful purposes. (4) Concessioner agrees to notify and request approval in writing from the City's Director of Parks and Recreation for any and all changes, additions or alterations in the design and placement of facilities in Joyland Amusement Park. (5) Concessioner shall maintain the following: a. Consecutively numbered ticket system, b. Detailed report of gross income from all sources to be furnished to City, and c. Complete, detailed and accurate financial bookkeeping records which shall be provided subject to audit. Performance Standards: (1) Concessioner further agrees, binds and obligates itself to keep said Joyland Amusement Park in a clean and sanitary condition, and to maintain all plants, trees, grasses, buildings and improvements in such state of repair as the same are in at the commencement of the lease, reasonable use and wearing thereof excepted, and plants, trees, grasses, buildings and improvements placed in said Joyland Amusement Park during the term of this agreement shall be maintained in such a state of repair as the same are in at the time of their installation or construction, reasonable use and wearing thereof excepted. Deliverables: NA Insurance: Concessioner shall maintain at all times during the term of this agreement, at Concessioner's sole expense, insurance with an insurance underwriter acceptable to the City and authorized to do business in the State of Texas, as follows: Comprehensive General Liability Insurance ($1,000,000.00), Fire and Extended coverage, Boiler Insurance, and Workers' Compensation Insurance. City reserves the right to require Concessioner to secure additional amounts of insurance from time to time. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City Secretary prior to entry upon the leased premises by the Concessioner; each policy shall name the City as additional insured. General: Concessioner agrees to make capital improvements on Joyland Amusement Park commensurate with the growth in gross revenues generated by said Joyland Amusement Park and which, in this Concessioner's opinion, will enhance the value, patrons' use and revenue of Joyland Amusement Park, and any permanent improvements such as buildings, etc. so erected by Concessioner on the leased premises shall become the property of the City at the expiration of this lease agreement; provided, however, that all temporary improvements such as rides, etc. shall remain the personal and removable property of Concessioner. AS, or a ut�he 13'' day of August, 1987, Ci and Con sioner executed an agr t wher ity leas to o sioner a o area in Mack Park known as Joy d Amusemen Park for a term of ten 0) ars and an additional term o ve (5) years; and 2 of 5428, Resolution; Joyland Amusement Park 2-27-1997; Lease Amendment LANDLORD'S CONSENT TO ASSIGNMENT Principal Loan Date I Maturity Loan No call r coil Account Officer Initials 01-22-2018 11-30-2027 8256684 •" BC References in the boxes above are for Lender's use onV and do not limit the appikabi8ty of this document to any particular loan or item. "" An hem above containing has been omitted due to text length limitations. Borrower: Mackenzie Park Playground. Inc. dba Joyland Lender. PROSPERITY BANK Amusement Park Avenue 0 Banking Center P. O. Box 2262 1401 Avenue 0 Lubbock, TX 79408 Lubbock, TX 79401-3819 THIS LANDLORD'S CONSENT TO ASSIGNMENT is entered Into among Mackenzie Park Playground, Inc, dba Joyland Amusement Park ("Borrower"), whose address Is P. 0. Box 2262, Lubbock, TX 79408; PROSPERITY BANK ("Lender"), whose address Is Avenue O Banking Center, 1401 Avenue 0, Lubbock, TX 79401-3819; and City of Lubbock ("Landlord% whose address is 1625 13th Street, Lubbock, TX 79401. Borrower and Lender have entered into, or are about to enter into, an agreement whereby Lender has acquired or will acquire a security Interest or other interest in the Collateral. Some or all of the Collateral maybe affixed or otherwise become located an the Premises. To induce Lender to extend the Loan to Borrower against such security interest in the Collateral and for other valuable consideration, Landlord hereby agrees with !Ender and Borrower as follows COLLATERAL DESCRIPTION. The word "Collaterar means certain of Borrower's personal properly in which Lender has acquired or will acquire a security Interest, including without limitation the following specific property: 2017 Caluam World S.R.O. Extreme Am semord IBde Serial NE0171002, whether now owned or hereafter acquired, togeOw with all Increases, parts, fittings, accessories, special tools and accessions now or hereafter attached thereto or used In eomection therewith, and any a d all replacements of all or any part thereof and ary and all pnookrchs and proceeds of any of the foregoing Including general IntAssagmxst of that certain lease agreement executed August 13. 1987 and entered Into by and between the City of I ubboclu Texas through Its officers and Nlackande Park Playground, Inc. dba Joyland Amusement Park together with all amencinierts of, extensions of, modifications or and su I I tuitions for the lease agneemeri subsequently ehtEcuted All Inventory. Accounts, Equipment Machinery, Rides, General tntargibles and Pobmm B0R1WA3?S ASSIGNMENT OF LEASE. Borrower hereby assigns to Lander all of Borrower's rights in the Lease, as partial security for the Loan. The parties Intend that this assignment will be a present transfer to Linder of all of Borrowers rights under the Lease, subject to Borrower's rights to use the Premises and enjoy the benefits of the Lease while not in default on the Loan or Lease. Upon full performance by Borrower under the Loan, this assignment shall be ended, without the necessity of any further action by any of the parties This assignment includes all renewals of and amendments to the Lease or the Loan, unlit the Loan is paid in full. No amendments may be made to the Lease without Lender's prier written consent, which shall not be unreasonably withheld or delayed. CONSENT OF LANDLORD. Landlord consents to the above assignment. If Borrower defaults under the Loan or the Lease, Lender may reassign the Lease, and Landlord agrees that Landlord's consent to any such reassignment will not be unreasonably withheld or delayed So long as Lender has not entered the Premises for the purpose of operating a business, Lender will have no liability under the Lease, Including without limitation liability for rent. Whether or not Lender enters into possession of the Premises for any purpose, Borrower will remain fully liable for all obligations of Borrower as lessee under the Lease. While Lender is In possession of the Premises, Lender will Cause all payments due under the Lease and attributable to that period of time to be made to Landlord If Lender later reassigns the Lease or vacates the Premises. Lender will have no further obligation to Landlord. LEASE DEFAULTS, Both Borrower and Landlord agree and represent to Lender that, to the best of their knowledge, there is no breach or offset existing under the Lease or under any other agreement between Borrower and Landlord. Landlord agrees not to terminate the Lease, despite any default by Borrower, without giving Lender written notice of the default and an opportunity to cure the default within a period of sixty (60) days from the receipt of the notice. If the default is one that cannot reasonably be cured by Lender (such as insolvency, bankruptcy, or other judicial proceedings against Borrower), then Landlord will not terminate the Lease so long as Landlord receives all sums due under the Lease for the period during which Lender is In possession of the Premises, or so long as Lender reassigns the Lease to a new lessee reasonably satisfactory to Landlord. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: This Agreement shag extend to and bind the respective heirs, personal representatives successors and assigns of the parties to this Agreement. The covenants of Borrower and Landlord respecting subordination of the claim or claims of Landlord in favor of Lender shall extend to, include, and be enforceable by any transferee or endorsee to whom Lender may transfer any claim or claims to which this Agreement shag apply. Lender need not accept this Agreement in writing or otherwise to make it effective This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. If Landlord is other than an individual, any agent or other person executing this Agreement on behalf of Landlord represents and warrants to Lender that he or she has full power and authority to execute this Agreement on Landlord's behalf. Lender shag not be deemed to have waived any rights under this Agreement unless such waiver is in writing and signed by Lender. Without notice to Landlord and without affecting the validity of this Consent, Lender may do or not do anything it deems appropriate or necessary with respect to the Loan, any obligors on the Loan, or any Collateral for the Loan; including without limitation extending, renewing, rearranging, or accelerating any of the Loan indebtedness. AMENDMENTS. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given In writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement No prior waiver by Lender, nor any course of dealing between Lender and Landlord, shall constitute a waiver of any of Lender's rights or of any of Landlord's obligations as to any future transactions Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender SEVERABILITY. If a court of competent jurisdiction finds any provision of this Agreement to be Illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision Illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so mafifled, it shall be considered deleted from this Agreement. LMess otherwise required by law, the Illegality, invalidity, or unenforceablity of any provision of this Agreement shall not affect the legality, validity or enforceability, of any other provision of this Agreement. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically staled to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code: Agreement. The word "Agreement" means this Landlord's Consent to Assgnment, as this Landlord's Consent to Assignment may be amended or modified from time to time, together with all exhibits and schedules attached to this Landlord's Consent to Assignment from lime to time. Borrower. The word "Borrower" means Mackenzie Park Playground, Inc dba Joyland Amusement Park and includes all co-signers and co -makers signing the Note and all their successors and assigns Collateral. The word "Collateral" means all of Borrower's right, title and Interest in and to all the Collateral as described in the Collateral Description section of this Agreement. Landlord. The word "Landlord" means City of Lubbock, and is used for convenience purposes only. Landlord's interest in the Premises may be that of a fee owner, lessor, sublessor or lienholder, or that of any other holder of an interest in the Premises which may be, or may become, prior to the interest of Lender Lease. The word "Lease" means that certain lease of the Premises, dated August 13. 1987, between Landlord and Borrower Lender. The word "Lender" means PROSPERITY BANK, its successors and assigns. LANDLORD'S CONSENT TO ASSIGNMENT Loan No: 8255684 (Continued) Page 2 Loan. The word "Loan" means any and all bans and financial accommodations from Lender to Borrower whether now or hereafter existing and however evidenced Note. The word "Note" means the Note dated January 22, 2018 and executed by Mackenzie Park Playground, Inc dba Joyland Amusement Park In the principal amount of 5360.000 00. together with all renewals of, extensions of, modifications of, refinancings of, consolidallons of and substitutions for the note or credit agreement. Premises. The word "Premises" means the real property located in Lubbock County Slate of Texas, commonly known as 500 Canyon Lake Drive Lubbock. TX 79408 Related Documents. The words "Related Documents mean al promissory notes credit agreements, ban agreements, environmental agreements guaranties security agreements, mortgages deeds of trust, security deeds, collateral mortgages, and all other instruments. agreements and documents. whether now or hereafter existing executed in connection with the Loan BORROWER AND LANDLORD ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS LANDLORD'S CONSENT TO ASSIGNMENT AND BORROWER AND LANDLORD AGREE TO ITS TERMS THIS AGREEMENT IS DATED JANUARY 22 2018 BORROWER: MACKENZIE PARK PLAYGROUND, INC. DBA JOYLAND AMUSEMENT PARK sy: JAMES DAVID DEAN, President CR Mackenzie Park Playground, Inc, dba Joyland Amusement Park By: _ KATHERINE W. DEAN, Seerotary of Maekenile Park Playground, Inc. dba Joyland Amusement Park LANDLORD: LENDER_ CITY OF LUBBOCK By: uthorized finer for City of Lubbock PROSPERITY BANK X Bruce Curiae, Senior Vice President By: Authorized Signer for City of Lubbock r."•ri• - .,nw e." o•",, , c•.r.�.r, rnr xr. u"yr"."••w n ew.w.oerranvnre rerun n..