HomeMy WebLinkAboutResolution - 2022-R0530 - Termination and Release of existing Joyland Amusement Park Lease AgreementResolution No. 2022-R0530
Item No. 5.30
December 13, 2022
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and
on behalf of the City of Lubbock, an Agreement Termination and Release to the Joyland
Amusement Park Lease Agreement executed April 12, 2022, Resolution No. 2022-R0179, by
and between the City of Lubbock and Mackenzie Park Playground Inc. d/b/a Joyland
Amusement Park, and related documents. Said Agreement Termination and Release 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 this
ATTEST:
Rebecc, Garza, City Secrethqj
APPROVED AS TO CONTENT:
Brooke Witcher, Assistant City Manager
APPROVED AS TO FORM:
Ryan Bloke, AssisteCt City Attorney
RES.Joyland Lease Agreement Termination and Release
12.8.22
December 13, 2022
Resolution No. 2022-R0530
AGREEMENT TERMINATION AND RELEASE
This Agreement Termination and Release (the "Contract"), is effective December 31,
2022, and is by and between the City of Lubbock, Texas, a Texas home rule municipal
corporation (the "City") and Mackenzie Park Playground Inc. d/b/a Joyland Amusement Park
("Joyland").
WHEREAS, pursuant to that certain Joyland Amusement Park Lease Agreement (the
"Agreement"), dated on or about April 12, 2022, Resolution No. 2022-R0179, attached hereto as
Exhibit "A," Joyland entered into the Agreement to operate and maintain Joyland Amusement
Park (the "Amusement Park") on certain real property owned by the City and located in
Mackenzie Park (the "Land");
WHEREAS, Joyland has entered into negotiations to sell substantially all of the assets,
equipment and inventory owned and used by Joyland in the operation of the Amusement Park
("Assets") to Joyland Amusement Park, Inc. ("Joyland, Inc.");
WHEREAS, Joyland, Inc., in anticipation of the purchase of the Assets and its future
operation of the Amusement Park, has entered into a lease with the City to lease the Land,
effective January 1, 2023 (the "Lease");
WHEREAS, the Lease is contingent on:
a) Approval by the Lubbock City Council;
b) Joyland, Inc.'s acquisition of the Assets from Joyland; and
c) Approval of the Lease by Joyland, Inc.'s lender;
WHEREAS, upon the sale of the Assets to Joyland, Inc., Joyland will no longer wish to
utilize the Land; and
WHEREAS, the City and Joyland both wish to terminate the Agreement contingent upon
Joyland, Inc.'s purchase of the Assets from Joyland on or before December 31, 2022;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is herein acknowledged, the City and Joyland hereby agree as follows:
1. For and in consideration of the mutual promises and covenants made herein, provided
Joyland, Inc. and Joyland close on the sale of the Assets on or before December 31, 2022, the
Agreement dated on or about April 12, 2022, Resolution No. 2022-R0179, attached hereto as
Exhibit "A," shall terminate and cancel effective as of December 31, 2022.
2. IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS MADE
HEREIN, THE CITY AND JOYLAND, TO THE FULLEST EXTENT PERMITTED BY LAW,
DO HEREBY RELEASE EACH OTHER, AND THEIR RESPECTIVE OFFICERS,
EMPLOYEES, ELECTED OFFICIALS, AGENTS, SUCCESSORS AND ASSIGNS FOR,
FROM AND AGAINST ANY AND ALL OBLIGATIONS, RESPONSIBILITIES OR CLAIMS
UNDER, OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY FROM, OR ARE
RELATED TO, THE AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY
OBLIGATION ON THE PART OF USER.
3. It is agreed that this Contract is contingent on Joyland's sale of the Assets to Joyland,
Inc., and the Agreement will not terminate, but will remain in full force and effect in the event
Joyland, Inc. and Joyland do not close on the sale of the Assets on or before December 31, 2022.
4. Joyland represents and warrants to the City that Joyland has the full power and authority
to make and perform all agreements, as provided herein.
5. THIS CONTRACT IS TO BE CONSTRUED UNDER, AND GOVERNED BY, TEXAS
LAW WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. THE OBLIGATIONS
OF THE PARTIES CREATED BY THIS CONTRACT ARE PERFORMABLE, AT LEAST IN
PART, IN LUBBOCK COUNTY, TEXAS. VENUE FOR ANY ACTION BROUGHT
PURSUANT TO THIS CONTRACT, OR ACTIVITY CONTEMPLATED HEREBY, SHALL
EXCLUSIVELY BE IN COURTS OF COMPETENT JURISDICTION LOCATED IN
LUBBOCK COUNTY, TEXAS.
6. This Contract represents the entire and sole agreement between Joyland and the City with
respect to the subject matter hereof and supersedes any and all prior negotiations,
understandings, representations or other agreements, whether written or oral. This Contract may
not be modified or amended except in writing and duly authorized and executed by each party
hereto.
7. If any provision of this Contract is declared invalid or unenforceable, such provision shall
be deemed modified to the extent necessary to render it valid and enforceable so long as said
modification is reasonably within the intent of the parties as originally expressed. In the event
such provision may not be so modified, the unenforceability or invalidity of any provision shall
not affect any other provision of this Contract, and this Contract shall continue in force and
effect as if such provision had not been included in this Contract.
IN WITNESS WHEREOF, the parties have executed this Contract by their duly
authorized representatives as of the date last written below.
CITY OF LUBBOCK:
Tray;',Mayor
MACKENZIE PARK PLAYGROUND
INC. d/b/a JOYLAND AMUSEMENT
PARK:
-0a13
David Dean, President
DATE: December 13, 2022
ATTEST:
�
—Q Rebec4 Garza, City Secr
APPROVED AS TO CONTENT:
w k1t6kaA
Brooke Witcher, Assistant City Manager
APPROVED AS TO FORM:
4,RyanB/oo4ke,As`sistant City Attorney
Joyland Lease Agreement Termination
12.7.22
DATE: / 2-— / 2 ` 2 Z
Resolution No. 2022-RO179 EXHIBIT A
Item No. 7.30
April 12, 2022
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for
and on behalf of the City of Lubbock, the Joyland Amusement Park Lease Agreement by
and between the City of Lubbock and Mackenzie Park Playground Inc. d/b/a Joyland
Amusement Park regarding the lease of certain real property located at Mackenzie Park in
Lubbock, Texas, and related documents. Said Lease is attached hereto and incorporated
in this resolution as if fully set forth herein and shall be included in the minutes of the
City Council.
Passed by the City Council on April 12, 2022
LA
DANIEL M. POPE, MAYOR
ATTEST:
Re ca Garza, City Se
APPROVED AS TO CONTENT:
Brooke Witcher, Assistant City Manager
APPROVED AS TO FORM:
Ryan By oke, Assistant City Attorney
RES.Lease-Joyland Amusement Park Lease Agreement
3.30.22
Resolution No. 2022-R0179
Joyland Amusement Park Lease Agreement
The following Lease Agreement ("Agreement" herein) is made and entered into by and
between the City of Lubbock, Texas, ("City" herein), and Mackenzie Park Playground Inc. d/b/a
Joyland Amusement Park ("Joyland" herein) of Lubbock County, Texas.
For and in consideration of the rental terms set forth herein, City hereby agrees to lease to
Joyland all of the area in Mackenzie Park known as Joyland Amusement Park located within
Mackenzie Park in Lubbock, Texas and further described in the attached Exhibit "A" which is
incorporated by reference as if set out verbatim ("Park" herein).
Section 1
DEMMONS
As used herein, the following terms shall have the following meanings:
A) "Permanent Improvements" shall mean anybuilding that is fixed in place and unable
to be moved about the Park Area.
B) "Temporary Improvements" shall mean all improvements to the Park Area that are
not Permanent Improvements, including, without limitation, any ride.
Section 2
GENERAL. TERMS
A) Term and Automatic Renewal: The term of this Agreement shall be for twenty-
five (25) years from date hereof, and shall be automatically extended for successive five (5) year
terms not to exceed forty (40) years in any event unless either party shall give written notice of
termination to the other party before the expiration of the first, second or third five (5) year term,
as the case may be. The Parties retain the right at its election to cancel and revoke this Agreement,
with or without cause, upon one hundred and eighty (180) days notice to the other Party.
B) Commencement Date: April 15, 2022.
C) Termination Date: April 15, 2047, subject to the automatic renewal and notice of
termination.
D) Assignment: Joyland shall not assign, transfer, and sell any of its interest in this
Agreement for any reason, without obtaining the approval of the City Council of the City of Lubbock
prior to the assignment, transfer, or sale.
E) Annual rental rate and payment schedule:
1) Joyland agrees to make an annual payment of $36,000.00 per year to City
beginning in 2022 as set forth below. This amount shall be adjusted based
upon the All items Consumer Price Index for All Urban Consumers (CPI-
U) indicator as determined by the United States Bureau of Labor Statistics
regarding the Dallas -Fort Worth -Arlington region at the beginning of each
calendar year provided however the annual CPI-U increase shall not exceed:
a) 4.00% annually for the period of April 15, 2022 through April
15, 2027;
b) 3.50% annually for the period April 15, 2027 through April 15,
2032;
c) 3.00% annually for the period April 15, 2032 through April 15,
2037;
d) 2.50% annually for the period April 15, 2037 through April,
2042; or
e) the lesser of 2.00% annually or $ 65,000.00annually for the
period April 15, 2042 through April 15, 2047.
2) Subject to the adjustment for CPI as described herein, see above Section
2, E) 1), the annual payment is to be paid in four (4) equal payments of
$9,000.00 on or before the following days of each year as set forth below,
unless such day falls on a weekend or holiday, then payment will be due
on the following business day:
a) June 1",
b) July 1,
c) August 1, and
d) September 1".
3) The City shall notify Joyland in writing, on or before March 1" of each
year, of any increase in the annual rental rate for the upcoming lease year.
Section 3
USE. MAINTENANCE & IMPROVEMENTS
Joyland agrees, binds and obligates itself as an independent contractor, to:
A) operate all concessions in the Park in a manner that is acceptable to the City, or
its duly authorized agents, and in accordance with all laws, rules, regulations, and ordinances
of the City, and the Lubbock Parks and Recreation Board that are in effect or become effective
during the term of this Agreement;
B) keep the Park in a clean and sanitary condition, including maintaining all plants,
trees, grasses, Permanent Improvements and Temporary Improvements within the Park in such
a state of repair as the same are in at the commencement of this Agreement, subject to reasonable
use and wearing of said plants, trees, grasses, buildings, Permanent Improvements and
Temporary Improvements;
C) make capital improvements which, in Joyland's sole opinion, will enhance the
value, patrons' use of the Park, and the revenue of the Park; provided however, that any
Permanent Improvements, save and except metal buildings, made by Joyland to the Park, shall
become the property of the City at the expiration of the lease, and all Temporary Improvements
and meW bcn' &M whether arced ID the ground or nod will remain Joyland's propertyand subject to
removal upon the expiration or termination of this Agreement;
D) notify the Lubbock Police Department in the event of weekend and holiday traffic
control issues at Mackenzie Park to allow for reasonable patron and emergency access to and
from the Park; and
E) submit requests for Capital Improvement Projects concerning Mackenzie Park to
the Directors of the Parks and Recreation and Public Works departments of the City by March 1
of each year for the following City fiscal year.
City agrees, binds and obligates itself to:
A) furnish, maintain, and improve parking lots or lots of sufficient size to meet
the demands and needs of the public in its use of the Park, Joyland shall notify the City of
Lubbock's Director of Public Works, or his designee, concerning any requests for repairs related
to the parking lots, and the City shall make necessary repairs to the parking lots within fifteen
(15) days of notification or provide correspondence setting the time for the repairs;
B) install a water meter serving Joyland as close as reasonably possible adjacent to
Joyland's west boundary line. As require by City rules, regulations and ordinances, Joyland shall
be responsible for connecting Joyland's water service line to the new meter, within fourteen (14)
calendar days of meter installation;
C) maintain and repair the water main serving Joyland up to the water meter serving
Joyland. The water service line between the water meter serving Joyland and Joyland and any
required Reduced Pressure Zone equipment for the water line serving Joyland, only, shall be the
responsibility of Joyland;
D) maintain, repair, and improve all areas outside of the Park in keeping with the
state of repair of the Park itself, including, without limitation, maintaining, clearing,
improving, and ensuring the proper and adequate flow of the creek that navigates through
Mackenzie Park;
E) when necessary for maintaining public safety, provide weekend and holiday
traffic control and security at Mackenzie Park to allow for reasonable patron and emergency
access to and from the Park;
F) provide Joyland ingress and egress access to the Park via the Interstate 27 access
road north of the Park. Except for emergency situations, in the event that Interstate 27 access
will not be available, the City shall provide Joyland thirty (30) days notice and coordinate with
Joyland to minimize any impact of access closure;
G) coordinate with Joyland regarding future Capital Improvement Projects that will
impact or effect Joyland, the Park, or Mackenzie Park; and
H) provide Joyland with the name, title and telephone number of the individual at
the Lubbock Police Department who is responsible for scheduling weekend and holiday traffic
control at Mackenzie Park.
The City retains the right to make improvements to the Park, in cooperation with Joyland
and at the City's sole cost, which in the discretion of the City are necessary or desirable in order
that the public might obtain full enjoyment of the Park.
Joyland agrees to request written approval from the City of Lubbock's City Manager, or
his designee, for any and all changes, additions, or alterations in the design and placement of
any Temporary Improvement or Permanent Improvement in the Park. The City shall have thirty
(30) business days from the receipt of Joyland's request to deny the same in writing. If the City
does not timely deny the request in writing, the request will be deemed approved. Should the
City Manager, or his designee, deny a request, Joyland shall be entitled to request approval from
the City Council.
Section 4
INSURANCE
Joyland agrees to incur the costs to obtain and maintain during the entire duration of the
lease term, insurance with an insurance underwriter acceptable to the City and that is authorized
to do business within the State of Texas, as follows:
A) Comprehensive General Liability Insurance in the amount of ONE MULLION
AND N0/100 DOLLARS ($1,000,000.00) (combined single limit) for bodily injuryand
propertydamage claims resulting from Joyland's business operations of the Park.
B) Fire and Extended Coverage Insurance on all improvements located in and on
the Park in amounts sufficient to cover replacement costs of such improvements or the
maximum for which the improvements are insurable, whichever is less.
C) Joyland shall maintain Worker's Compensation Insurance sufficient to meet the
State of Texas statutory guidelines.
In the event of loss, in whole or in part, of any Permanent Improvement insured pursuant
to the provisions in this Section and the Agreement, Joyland shall apply all proceeds received
from such insurance toward either:
(A) rehabilitation or repair of such Permanent Improvement, at the option of the
City;
(B) the construction of new improvements within the Park that meets Joyland's
approval; or
(C) the complete removal of the subject Permanent Improvement.
If, during the term of this Agreement, Joyland's improvements are totally or partially
destroyed from a risk required to be covered by the insurance described in this Section
and Agreement, or otherwise covered by insurance, this Agreement shall not terminate. Joyland
shall timely restore or cause to be restored the improvements to the extent of the insurance
proceeds received.
Certificates of insurance or other satisfactory evidence of insurance shall be filed with
the City Secretary by Joyland prior to the Commencement Date. Each policy shall name the City
as an additional insured as its interest may appear. Each policy shall also provide that the insurer
shall notify the City Secretary of any alteration, renewal, or cancellation of its terms and that such
policy will remain in full force and effect until ten (10) days after such notice is received by
the City Secretary.
Section 5
AccEss
City and its duly authorized agents and representatives are hereby authorized by Joyland
to enter the Park, all buildings, and view all equipment and improvements in the Park for the
purpose of inspecting the entire area for all lawful purposes provided such entry and inspection is
conducted during normal business hours and with at least atwenty-four (24) hour notice to Joyland
prior to the entrance. This section is exclusive to the purpose of inspections of Joyland and is
not applicable to the City's right to enter Joyland or the Park for emergency situations or to
exercise police powers or other emergency services.
Section 6
DEFAULT
Should Joyland neglect or otherwise fail to perform or observe any of the conditions,
agreements, or covenants contained within this Agreement that are or were to be performed
by Joyland, or be declared bankrupt according to law, or if any assignment of the premises is made
for the benefit of creditors, the City may lawfully and immediately at any time, without
notice or demand to Joyland, enter into and upon the Park, and any part thereof, and repossess
the same, and expel Joyland along with Joyland's concessions without being deemed guilty of
any manner of trespass, without prejudice to any remedies which might otherwise be used for
obtaining possession of the Park or rent in an -ears, and upon entry by the City, the lease shall
terminate as to Joyland. Save and except Joyland shall be entitled to remove all Temporary
Improvements from the Park.
Should City neglect or otherwise fail to perform or observe any of the conditions,
agreements, or covenants contained within this Agreement that are or were to be performed by
the City, and fail to cure or begin to repair, remedy or cure the same within fifteen (15) days
after the City's receipt of written notice from Joyland, the City shall forfeit its rental rate from
the date of notice until such time as the actions of neglect or failures are remedied to the approval
of Joyland.
Section 7
GENERAL PROVISIONS
City and Joyland mutually agree and understand the following:
A) Governing Law: The laws of the State of Texas govern this Agreement.
B) Venue Provision: Any action or proceeding arising out of this Agreement must
be brought in Lubbock County, Texas.
C) Attorneys' Fees: Should legal action or litigation ever arise out of this
Agreement or in connection to this Agreement, the losing party agrees to reimburse the winning
party for costs and attorneys' fees.
D) Severability: The terms of this Agreement are severable, so that if a court finds
any term or section to be invalid or unenforceable, all remaining terms and sections shall continue
to be valid and enforceable.
E) Multiple Subparts: This Agreement may be executed in multiple originals
and counterparts, each of which shall be an original and all of which shall constitute a single
Agreement binding on the parties.
F) Entire Agreement: This Agreement constitutes and represents the entire
agreement between the Cityand Joyland, and supersedes and extinguishes all prior agreements,
understandings, representations, warranties and arrangements of anynature, whether oral or
written, between the City and Joyland relating to the lease of the Park. The Agreement shall be
binding upon and inure to the benefit of the City and Joyland and their respective successors and
permitted assigns.
G) Agreement Amendments: Amendments to this Agreement are permitted as long
as the amendment is in writing and signed by both the City and Joyland. No oral, unwritten, or
unsigned amendments shall have any effect or validity on this Agreement.
H) No rule of construction against the drafter. Any rule of construction to the
effect that any ambiguity is to be resolved against the drafting party shall not be applied to
the interpretation of this Agreement.
I) Authority to Sign: The person(s) signing below certifythat theypossess the
authority to fully bind the City and Joyland to the terms and conditions set forth in this
Agreement.
J) Rights and Remedies Reserved: The parties reserve the right to exercise any right
or remedy available to them by law, contract, equity, or otherwise, including without limitation,
the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the
parties shall not be subject to any arbitration process prior to exercising its unrestricted right to
seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may
be exercised concurrently. To the extent of any conflict between this provision and another
provision in, or related to, this Agreement, the former shall control.
K) Funding and Future Improvements: The Parties understand and acknowledge
that any City funding of this Agreement or future Capital Improvement Project is contained in
City's annual budget and is subject to the approval of the City in each fiscal year. The Parties
further agree that should the governing body of the City fail to approve a budget which includes
sufficient funds for the continuance of this Agreement or any Capital Improvement Project, or
should the governing body of the City fail to certify funds for any reason, such an event shall not
be considered a breach of any obligation created in this Agreement. When the funds budgeted or
certified during any fiscal year by the City to discharge its obligations under this Agreement are
expended, Joyland's sole and exclusive remedy shall be to terminate this Agreement.
L) No Indemnification by City: The parties expressly acknowledge that the City's
authority to indemnify and/or hold harmless any third party is governed by Article XI, Section 7
of the Texas Constitution and any provision which purports to require indemnification by the City
is invalid.
M) Compliance with Chapter 2270, Subtitle F, Title 10, Texas Government Code:
Joyland warrants that it is in compliance with Chapter 2270, Subtitle F, Title 10 of the Texas
Government Code by verifying that: (1) it does not boycott Israel; and (2) it will not boycott Israel
during the term of the contract.
N) Sovereign Immunity Acknowledged and Retained: THE PARTIES
EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS
AGREEMENT IS IN ANY WAY INTENDED TO CONSTITUTE A WAIVER BY ANY
PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY
HAVE BY OPERATION OF LAW. THE CITY OF LUBBOCK RETAINS ALL
GOVERNMENTAL IMMUNITIES.
CITY OF LUBBOCK:
By: Date: April 12, 2022
Daniel M. Pope, Mayor of Lubbock
ATTEST:
Bar JX4t.4 X Date: April 12, 2022
Retecca (Becky) Garza, ity ecretary
MACKENZIE PARK PLAYGROUND,
INC. d/b/a JOYLAND AMUSEMENT PARK:
By- Date: 2022
David Dean, President of Joyland
APPROVED AS TO CONTENT:
By:Llzxq Date: �Z
Brooke Witcher, Assistant City Manager
APPROVED AS TO FORM:
By: Date:
Ryan qfboke, Assistant City Attorney
f 'f
Bar Date: A
William A. Franklin, Attorney for Joyland
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