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HomeMy WebLinkAboutResolution - 2018-R0439 - Parking Lease Agreement With Adventure Park. - 12/17/2018Resolution No. 2018-R0439 Item No. 6.8 December 17, 2018 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, a Parking Lease Agreement by and between the City of Lubbock and Adventure Park — Lubbock, LP, a Limited Partnership, and related documents. Said Lease Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on December 17, 2018 DANIEL M. POPE, MAYOR ATTEST: Reb toca Garza, City Secretar APPROVED AS TO CO ENT: Jesica McEachern, Assistant City Manager APPROVED AS TO FORM: RyA B oke, A<sistfnt City Attorney ccdocs/RES.Parking Lease Agreement — Adventure Park 8.22.18 Resolution No. 2018-R0439 PARKING LEASE AGREEMENT This Lease is entered into on the 17th day of December , 2018, by and between the City of Lubbock (`'Landlord"), a Texas H o m e R u l e Municipal Corporation, and Adventure Park — Lubbock, LP, a Texas limited partnership ("Tenant"). ARTICLE 1. LEASED PREMISES Inconsideration of the mutual covenants and agreements of this lease, and other good and valuable consideration, Landlord demises and leases to Tenant, and Tenant leases from Landlord, the premises situated at 5102 29th Drive, in the City of Lubbock, Lubbock County, Texas, legally described on Exhibit A attached to this lease, and made a part of this lease for all purposes (collectively referred to as "the premises" or "the leased premises" in this lease). Tenant is to have and to hold the premises, together with all rights, privileges, easements, appurtenances, and immunities belonging to or in any way appertaining to them, including but not limited to any easements, rights, title, and privileges of Landlord, existing now or at any time during the lease term. ARTICLE 2. LEASE TERM 2.1. Fixed Beg•nnina and Termination Date. The term of this Lease shall be for six (6) months duration and shall continue thereafter on a month -to -month basis unless either Tenant or Landlord gives sixty (60) days advance notice of termination. 2.2. Termination. This lease will tenninate without further notice when the term specified in 2.01 expires, and any holding over by Tenant after that term expires, will not constitute a renewal of the lease or give Tenant any rights under the lease in or to the premises. In no event shall this Lease extend beyond twenty-four (24) months from the effective date. 2.3. Holdover. If Tenant holds over and continues in possession of the premises after the lease term (or any extension) expires, Tenant will be considered to be occupying the premises on an at will tenancy, subject to all the tenns of this lease. ARTICLE 3. RENT 3.01. Minimum Monthly Rent. Tenant will pay Landlord One Thousand Nine Hundred Eighty and no/100 Dollars ($1,980.00) as good and valuable consideration, in advance of the first (I") day of the tenn of the lease, for the initial six (6) months of the lease. Thereafter, Tenant will pay Landlord Three Hundred Thirty and no/100 Dollars ($330.00) as good and valuable consideration, in advance on the first (I") day of each month during the remainder of the term. {00119041} Parking Lease Agreement — Adventure Park Pate I_ ARTICLE 4. TAXES 4.1. Payment by Tenant. In addition to the rent specified in Article 3, Tenant will pay and discharge all taxes, general and special assessments, and other charges of any kind levied on or assessed against the premises and all interests in the premises and all improvements and other property on them during the lease term, whether belonging to Landlord or to Tenant. Tenant will pay all the taxes, charges, and assessments directly to the public officer charged with their collection not fewer than fifteen (15) days before they become delinquent, and Tenant will indemnify Landlord and hold it harmless from all such taxes, charges, and assessments. Tenant may, in good faith at its own expense (in its own name or in that of Landlord, or both, as Tenant may detennine appropriate), contest any such taxes, charges, and assessments and must pay the contested amount, plus any penalties and interest imposed, if and when finally determined to be due. 4.2. Payment by Landlord. At any time that the payment of any item of taxes, special assessments, or governmental charges that Tenant must pay under 4.01 remains unpaid and uncontested later than f i f t e e n ( 15) days before it becomes delinquent, Landlord may give written notice to Tenant of its default under 4.01, specifying the default. IfTenant continues to fail to pay the taxes, special assessments, or governmental charges, or to con- test them in good faith within 10 days after the written notice. Landlord may pay the items specified in the notice, and Tenant will, on demand, reimburse Landlord any amount paid or expended by Landlord for this purpose, with interest on the amount at the rate of 10% annually from the date of Landlord's payment until reimbursement by Tenant. ARTICLE 5. UTILITIES 5.01. Tenant will pay or cause to be paid all charges for water, heat, gas, electricity, sewers, and all other utilities used on the premises throughout the lease term, including and connections fees. ARTICLE 6. USE OF PREMISES 6.01. Permitted and Prohibited Use of Premises. Tenant may use the premises for the purpose of customer parking area and for no other purpose without the written consent of Landlord. Subject to the terms hereof, during the tenm of this lease Tenant will not use or cause to be used on the premises any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the premises. 6.02. Illegal Use Not Permitted. Tenant may not use all or any part of the premises for any use or purpose that violates any valid and applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Lubbock, the City of Lubbock, or other lawful authority with jurisdiction over the premises. (00119041) Parking Lease Agreement - Adventure Park Page 2 ARTICLE 7. CONSTRUCTION BY TENANT 7.01. General Conditions. Tenant may, at any time and from time to time during the lease term, improve the roadway and parking surfaces on the premises, and correct and change the contour of the premises, subject to the following: a. Tenant bears the cost of any such work. b. The premises must at all times be kept free of mechanics' and materialmen's liens. c. Landlord must be notified of the time for beginning and the general nature of any such work, other than routine maintenance of existing improvements, at the time the work begins. d. The conditions of 7.04 concerning Landlords approving plans must be followed. 7.02. Beginning Maintenance. Tenant expects to take over maintenance of the leased premises immediately after possession is delivered to Tenant. 7.03. No Improvements. No improvements, other than improving roadway and parking surfaces, of any kind or type are to be placed on the leased premises by the Tenant. If any such improvements are placed on the leased premises, they shall be removed by the Tenant immediately upon the request of the Landlord at the sole expense of the Tenant. ARTICLE 8. ENCUMBERANCE OF LEASEHOLD ESTATE 8.01. Tenant's Right to Encumber. Tenant may not at any time encumber the leasehold, by deed of trust, mortgage, or other security interest. ARTICLE 9. REPAIRS, MAINTENANCE AND RESTORATION 9.01. Tenant's Duty to Maintain and Repair. At all times during the lease teen, Tenant will keep and maintain, or cause to be kept and maintained, all improvements erected on the premises in a good state of appearance and repair (except for reasonable wear and tear) at Tenant's own expense. 9.02. Damage or Destruction. If any improvement constructed on the premises is damaged or destroyed by fire or any other casualty, regardless of the extent of the damage or destruction, Tenant must, within one (1) month from the date of the damage or destruction, begin to repair, reconstruct, or replace the damaged or destroyed improvement and pursue the repair, reconstruction, or replacement with reasonable diligence so as to restore the structure {00119041} Parkinp, Lease Agreement — Adventure Park Page 3 to substantially the condition it was in before the casualty. But if beginning or completing this restoration is prevented or delayed by war, civil commotion, acts of God, strikes, governmental restrictions or regulations, fire or other casualty, the time for beginning or completing the restoration (or both) will automatically be extended for the period of each such delay. ARTICLE 10. MECHANICS' LIENS Tenant will not cause or permit any mechanics' liens or other liens to be filed against the fee of the premises or against Tenant's leasehold interest in the land or any improvements on the premises by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Tenant or anyone holding the premises or any part of them through or under Tenant. If such a mechanic's lien or materialman's lien is recorded against the premises or any buildings or improvements on them, Tenant must either cause it to be removed or, if Tenant in good faith wishes to contest the lien, take timely action to do so, at Tenant's sole expense. IfTenant contests the lien, Tenant will indemnify Landlord and hold it harmless from all liability for damages occasioned by the lien or the lien contest and will, in the event of a judgment of foreclosure on the lien, cause the lien to be discharged and removed before the j udgment is executed. ARTICLE 11. CONDEMNATION 11.01. Parties' Interests. Ifthe premises or any part of them are taken for public or quasi -public purposes by condemnation as a result of any action or proceeding in eminent domain, or are transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, this article governs Landlord's and Tenant's interests in the award or consideration for the transfer and the effect of the taking or transfer on this lease. 11.02. Total Taking--Tennination. If the entire premises are taken or so transferred as described in 11.01, this lease and all of the rights, titles, and interests under it will cease on the date that title to the premises or part of them vests in the condemning authority, and the proceeds of the condemnation shall be allocated by the condemning authority to (i) the real property and (ii) the permanent improvements. The proceeds allocated to the real property shall be the property of the Landlord and the proceeds allocated to the buildings and pennanent improvements shall be the property of Tenant. In the event the condemning authority shall not make such allocation, Landlord and Tenant shall jointly agree to such allocation. 11.03. Partial Taking --Termination. If only part of the premises is taken or transferred as described in 11.0I, this lease will terminate if, in the opinion of Landlord and Tenant, the remainder of the premises is in such a location, or is in such form, shape, or reduced size, that Tenant's purpose cannot be effectively and practicably operated on t00119041; Parkin; Lease Agreement - Adveiiture Park Page 4 the remaining premises. In that event, this lease and all rights, title, and interest under it will cease on the date that title to the portion of the premises taken or transferred vests in the condemning authority. The proceeds of the condemnation shall be allocated as described in Section 11.02. 11.04. Partial Taking --Continuation with Rent Abatement. If part of the premises is taken or transferred as described in 1 1.01 and, in the opinion of Landlord and Tenant, the remainder of the premises is in such a location and in such form, shape, or size that Tenant's purpose can be effectively and practicably operated on the remaining premises, this lease will terminate with respect to the portion of the premises taken or transferred as of the date title to such portion vests in the condemning authority but will continue in full force with respect to the portion of the premises not taken or transferred. The proceeds of the condemnation shall be allocated as described in Section 11.02. 11.05. Voluntary Conveyance. Nothing in this article prohibits Landlord from voluntarily conveying all or part of the premises to a public utility, agency, or authority under threat of a taking under the power of eminent domain. Any such voluntary conveyance will be treated as a taking within the meaning of this article. ARTICLE 12. INDEMNIFICATION AND INSURANCE 12.01. Indemnification of Landlord. Landlord is not liable for any loss, damage, or injury of any kind to any person or property arising from any use of the premises (or any part of them), or caused by any defect in any building, structure, improvement, equipment, or facility on the premises or arising from activities contemplated hereby, or by or from any accident, tire, or other casualty on the leased premises. TENANT SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE LANDLORD, AND LANDLORD'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, OR ARE RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES AND/OR CAUSED OR CONTRIBUTED TO, IN ANY WAY, MANNER OR FORM, BY THE NEGLIGENCE OR FAULT OF LANDLORD, ITS RESPECTIVE OFFICERS, EMPLOYEES. ELECTED OFFICIALS AND/OR AGENTS, AND TENANT FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE LANDLORD AND/OR THE LANDLORD'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM. IN ADDITION, TENANT SHALL PAY TO THE LANDLORD. THE LANDLORD'S RESPECTIVE. OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN f00119041) Parkins* Lease Agreement — Adventure Park Pagye5 ENFORCING TENANT'S INDEMNITY IN THIS SECTION. 12.02. Insurance. Tenant shall procure and carry, at its sole cost and expense through the life of this lease, insurance protection as hereinafter specified, in form and substance satisfactory to the Landlord, carried with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with this lease, including, but not limited to, all aspects, operations and/or occurrences to which Tenant has indemnified the Landlord, as provided in Section 12.01. above. The Landlord shall submit a Certificate of Insurance specifying each and all coverages to the Landlord no later than thirty (30) days after the execution of this lease. Ten- ant shall provide to the Landlord proof of the below -described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy. Tenant shall cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (60) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. A. Comprehensive General Liabiliti, Insurance. Tenant shall have comprehensive general liability insurance, with limits of $300,000 combined single limit in the aggregate and per occurrence. The Landlord shall be named as an additional insured in such policy. B. Owner's Protective or Contingent Public Liability Insurance and Property• Damage Liability Insurance. Tenant shall obtain an Owner's Protective or Contingent Public Liability Insurance policy naming Landlord as insured, in the amount of, for bodily injuries, including accidental death and/or property damage, $300,000 combined single limit. This insurance coverage shall include coverage against casualty or damage, including, but not limited to, damage caused by fire and/or vandalism, to any and all buildings and/or improvements located on the leased premises, and shall name the Landlord as an additional insured. C. Worker's CoinI)ensation Insurance. All contractors, other than the Landlord, hired by Tenant to perform work at any site on the leased premises shall maintain throughout the course of the job worker's compensation insurance coverage in accordance with the statutory requirements of the State of Texas. ARTICLE 13. ASSIGNMENT AND SUBLEASE 13.01 Tenant Assignment. Tenant may not, at any time, sell or assign its leasehold estate in its entirety or any portion of it, nor may it sublet the premises or any portion of them or any portion of any building or other improvement erected on the premises. ARTICLE 14. DEFAt1LT AND REMEDIES L001190411 Parkinp, Lease Agreement — Adventure Park Pare 6 14.01. Termination on Default. If Tenant defaults in performing any covenant or terni of this lease and does not correct the default within t e n ( 10) days after receipt of written notice from Landlord to Tenant, Landlord may declare this lease, and all rights and interests created by it, terminated. If Landlord elects to terminate, this lease will cease as if the day of Landlord's election were the day originally fixed in the lease for its expiration. Landlord or its agent or attorney may resume possession of the premises. 14,02, Other Remedies. Any termination of this lease as provided in this article will not relieve Tenant from paying any sum or sums due and payable to Landlord under the lease at the time of termination, or any claim for damages then or previously accruing against Tenant under this lease. Any such termination will not prevent Landlord from enforcing the payment of any such sum or sutras or claim for damages by any remedy pro- vided for by law, or from recovering damages from Tenant for any default tinder the lease. All Landlords' rights, options, and remedies under this lease will be construed to be cumulative, and no one of them is exclusive of the other. Landlord may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this lease. No waiver by Landlord of a breach of any of the covenants or conditions of this lease may be construed a waiver of any succeeding or preceding breach of the same or any other covenant or condition of this lease. ARTICLE 15. LANDLORD'S WARRANTIES AND COVENANTS 15.01. Warranty of Title. Landlord warrants that it is the owner of title to the premises, subject only to the covenants, conditions, easements, and other matters of record. 15.02. Warranty of Quiet Enjoyment. Landlord covenants that as long as Tenant pays the rent and other charges under this lease and observes the covenants and terms of this lease, Tenant will lawfully and quietly hold, occupy, and enjoy the premises during the lease term without being disturbed by Landlord or any person claiming under Landlord, except for any portion of the premises that is taken under the power of eminent domain. ARTICLE 16. GENERAL PROTECTIVE PROVISIONS 16.01. Right of Entry and Inspection. Tenant must permit Landlord or its agents, representatives, or employees to enter the premises for the purposes of inspection; determining whether Tenant is complying with this lease; maintaining, repairing, or altering the premises. 16.02. No Partnership or Joint Venture. The relationship between Landlord and Tenant is at all times solely that of Landlord and Tenant and may not be deemed a partnership or ajoint venture. 16.03. Force Majeure. lfassumption of maintenance as provided in 7.02 or curing any default (other than failure to pay rent, insurance premiums, or ad valorem taxes) or performing any other covenant or term is delayed by reason of war, civil commotion, act of {00119041f Parkin Lease Asreement — Adventure Park Page 7 God, governmental restrictions, regulations, or interference, fire or other casualty, each party so delayed is excused from performance during the delay period. 16.04. No Termination on Bankruptcy. Bankruptcy, insolvency, assignment for the benefit of creditors, or the appointment of a receiver will not affect this lease as long as Tenant and Landlord or their respective successors or legal representatives cotttituue to perform all covenants of this lease. 16.05. No Waiver. No waiver by either party of any default or breach of any covenant or term of this lease may be treated as a waiver of' any subsequent &&taut or breach of the same or any other covenant or term of this lease. ARTICLE 17. MISCELLANEOUS 17.01. Delivery of Rents and Notices. All rents or other sums, notices, demands, or requests from one party to another may be personally delivered or sent by mail, certified or registered. postage prepaid. to the addresses stated in this section and are considered to have been given at the time of personal delivery or of mailing. All payments, notices, demands, or requests from Tenant to Landlord should be mailed to Landlord at City of Lubbock, Attn: Wood Franklin, P.E., Director of Public Works, P.O. Box 2000, Lubbock, Texas 79457, or at such other address or fax number as Landlord requests in writing. All payments, notices, demands, or requests from Landlord to Tenant should be mailed to Tenant at Kai Evans, Sl i - -Qth r),-.. e-, Lubbock, Texas 7.4403 or at such other address as Tenant requests in writing. yu 67 X 17.02. Parties Bound. This agreement binds, and inures to the benefit of, the parties to the lease and their respective heirs, executors, administrators, legal representatives, successors, and assigns. 17.03. Texas Law to Apply. This agreement is to be construed under Texas law, and all obligations of the parties created by this lease are performable in Lubbock County, Texas. 17.04. Legal Construction. lfany one or more of the provisions contained in this agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision o f the lease, which will be construed as if it had not included the invalid, illegal, or unenforceable provision. 17.05. Prior Agreements Superseded. This agreement constitutes the pat -tics' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter. f00119041f Parking Lease Agreement - Adventure Park P,a, 8 17.06. Amendment. No amendment, modification, or alteration of this lease is binding unless in writing, dated subsequent to the date of this lease, and duly executed by the parties. 17.07. Rights and Remedies Cumulative. The rights and remedies provided by this lease agreement are cumulative, and either party's using any right or remedy will not preclude or waive its right to use any other remedy. The rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. 17.08. Attorney's Fees and Costs. If, as a result of either party's breaching this agreement, the other party employs an attorney to enforce its rights under this lease, then the breaching or defaulting party will pay the other party the reasonable attorney's fees and costs incurred to enforce the lease. 17.09. Time of Essence. Time is of the essence of this agreement. 17.10. Further Documents. Landlord will from time to time and at any reasonable time execute and deliver to Tenant, when Tenant reasonably requests, other instruments and assurances approving, ratifying, and confirming this lease and the leasehold estate created by it and certifying that the lease is in full force and that no default under the lease on Tenant's part exists. But if any default on Tenant's part does exist, Landlord must specify in any such instrument each such default. 17.11. Compliance with Chapter 2270, Subtitle F, Title 10. Texas Government Code. Tenant 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. THIS LEASE has been executed by the parties on the date and year written above. CITY OF LUBBOCK: ADVENTURE PARK-LUBBOCK, L.P. LANDLORD TENANT 1 DANIEL M. POPE KAI EVANS MAYOR DIRECTOR OF OPERATIONS ATTEST: 100119041s Parking Lease Agreement -- Adventure Park Page 9 Robe ta Garza, City Secretary APPROVED AS TO CONTENT: estca achern, Assistant City Manager APPROVED AS TO FORM: Ry ro e, Assistant City Attorney '00119041', Parkin; Leasc Agreement - Adventure Park Page 10 EXHIBIT A LEGAL DESCRIPTION Land located in the City of Lubbock, Lubbock County, Texas and being more particularly described as follows: BEGINNING at a point, which bears North 1,094.72 feet and East 910.31 feet from the Southwest corner of Section 17, Block B, Lot 305, Midway Park Addition, Lubbock County, Texas; THENCE North 5 3°54' East a distance of 60 feet to a point: THENCE., North 36°06' West a distance of 219.62 feet to a point; THENCE South a distance of 101.88 feet to a point; THENCE South 36°06' East a distance of 137.31 feet to the Point of Beginning. {00119041} Parking Lease Agreement - Adventure Park Page I I EXHIBIT A I i S1 R • y 1 • � *��5 �-,70.r � 82 .Solo �'" (•° f City of Lubbock and Adventure Park Parking Lease Agreement — Lease area