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HomeMy WebLinkAboutResolutions - 2004.07.22 - 27520July 22, 2004 REPORT (MISC. 104150) BY: PLANNING & BUILDING COMMITTEE, CHARLES PALMER, CHAIRPERSON RE: PARKS AND RECREATION COMMISSION — RED OAKS WATERPARK LEASE To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: The Planning & Building Committee having reviewed MR #04150 on July 13, 2004 Reports with the recommendation the Resolution be adopted. Chairperson, on behalf of the Planning & Building Committee, I move the acceptance of the foregoing report. PLANNING & BUILDING COMMITTEE Planning & Building Committee Vote: Motion carried on unanimous roll call vote with Coleman absent MISCELLANEOUS RESOLUTION 104150 July 17, 2004 BY: GENERAL GOVERNMENT COMMITTEE, William Patterson, Chairperson IN RE: PARKS AND RECREATION COMMISSION — RED OAKS WATERPARK LEASE TO: THE OAKLAND COUNTY BOARD OF COMMISSIONERS Mr. Chairperson, Ladies and Gentleman: WHEREAS, the Oakland County Parks and Recreation Commission, at its regular meeting of May 5, 2004, authorized the department to enter into a lease for the property at the Red Oaks Waterpark to allow for the addition of new water features; and WHEREAS, the Oakland County Parks and Recreation Commission committed $3.3 million in funds for this endeavor; and WHEREAS, the residents of Oakland County are the benefactors; and WHEREAS, the funding for this project was allocated from the Oakland County Parks and Recreation Commission Capital Improvement Projects Budget; and WHEREAS, the construction, operational, and maintenance costs of this facility will be paid for by fees and charges and Parks millage revenues; and WHEREAS, said lease, which was developed by Oakland County Drain Commission staff and counsel, Park staff, and Oakland County Corporation Counsel, is for a period of 50 years; and WHEREAS, said lease, which will be between the County of Oakland and the George W. Kuhn Drainage District, is for the amount of $1 annually. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners approve the lease agreement between the County of Oakland and the George W. Kuhn Drainage District for the property at the Red Oaks Waterpark to allow for the addition of new water features. BE IT FURTHER RESOLVED that the Chairperson of the Board of Commissioners is authorized to execute the lease on behalf of the County of Oakland. Mr. Chairperson, on behalf of the General Government Committee, I move the adoption of the foregoing resolution. GENERAL OVERNM NT COMMITTEE General Government Committee Vote: Motion carried on a roll call vote with Webster, Kowall and Hatchett absent. OAKLAND COUNTY WATERPARK LEASE AGREEMENT This LEASE is made on this 24thday of August 2004, by and between the GEORGE W. KUHN DRAINAGE DISTRICT, Michigan statutory public corporation, established pursuant to Chapter 20 of the Drain Code of 1956, 1956 P.A. 40, as amended, MCL 280.461 et seq., by and through the Drainage Board for said district, whose address is 1 Public Works Drive, Waterford Michigan (hereinafter "LESSOR"), and the COUNTY OF OAKLAND. a Michigan Constitutional Corporation, whose address is 1200 N. Telegraph Road, Pontiac, Michigan (hereinafter "LESSEE"). 1. LEASED PREMISES. For and in consideration of payment of One ($1.00) dollar per year and the mutual promises contained herein, LESSOR leases to LESSEE real property in the City of Madison Heights, Michigan (hereinafter "PREMISES") as described in "Exhibit A," subject to all easements and other conditions set forth herein. 2. TERMS. This lease shall commence on May 1, 2004 and extend for 50 years, terminating on May 1, 2054, and may be renewed or extended by written agreement between the parties. 3. "WATERPARK FACILITIES." LESSEE, by and through its PARKS AND RECREATION COMMISSION, may use the PREMISES for maintenance and construction of "waterpark facilities" known as Red Oaks County Waterpark. LESSEE, by and through its Parks and Recreation Commission, shall be solely responsible for the expenses of construction, maintenance, and up keep of any ,,waterparks facilities" installed upon the PREMISES. (a) LESSEE agrees that any future expansion of the "waterpark facilities on the Premises shall be reviewed and approved in writing by the LESSOR prior to installation. Any terms related thereto shall be provided for in an additional agreement between the parties. (b) Except as otherwise provided in this lease, after construction of any "waterpark facilities", LESSEE shall be responsible for all future maintenance, repairs, replacement or other activity in relation to the "waterpark facilities", including lawn maintenance of the PREMISES, and any expenses of any type in connection therewith or arising therefrom, shall be the sole responsibility of LESSEE. (c) LESSEE shall secure required approvals from any federal, state or municipal agencies, utility companies, that may be required for the construction, maintenance, repair, alteration or demolition of any "watetpark facilities." In the event of an emergency shut down or removal of "waterpark facilities" this provision will be automatically waived by LESSOR. (d) LESSEE shall comply with all easements on the property, whether recorded, prescriptive or of other origin. LESSOR shall provide LESSEE and the Parks and Recreation Commission with copies of all recorded easements effecting said property. In addition, LESSOR shall provide LESSEE with a written statement describing any other prescriptive or unrecorded easements Lessor believes will effect LESSEE'S use of the Premises. LESSEE shall not interfere with or impair the rights of any easement holder, and shall use or employ necessary safeguards to prevent any such interference or impairment. LESSOR'S RESERVATION OF RIGHTS. (a) LESSEE understands and agrees that the primary and paramount purpose of the Premises leased herein are for the drain, sewer, and pollution control facilities that are operated and maintained by LESSOR. Accordingly, LESSEE covenants and agrees that its operations of the waterpark shall not damage, impair or interfere with the operations of the drain, sewer and pollution control facilities that exist now or in the future. LESSOR reserves the right to inspect the PREMISES from time to time in order to assure compliance with the covenants and conditions of this lease. LESSOR shall have access at all times to any part of the Premises, including any portions of the property occupied by the "waterpark facilities." (b) In the event that the operations of the "waterpark facilities" disrupt, interfere or cause damage to the drain, sewer or pollution control 2 13-3 facilities or their operations, LESSEE agrees to immediately cease its waterpark operations and abate the interference or disruption to drain, sewer or the pollution control facilities. LESSEE further agrees to assume liability for any damages to the drain, sewer or pollution control facilities, or costs to the LESSOR directly resulting from LESSEE'S waterpark operations. (c) LESSEE further understands and agrees that the LESSOR'S paramount responsibility is to operate and maintain the drain, sewer and pollution control facilities, and to serve and protect the public interest. Accordingly, in the event of an emergency, as determined by the Oakland County Drain Commissioner, the Drain Commissioner will hand deliver to LESSEE a "Notice of Emergency" specifying which "waterpark facilities" are disrupting, interfering, or damaging drain, sewer, or pollution control facilities operated by the LESSOR. The LESSEE will immediately remove or discontinue use of any such "waterpark facilities" so identified by the Oakland County Drain Commissioner. If LESSEE fails to comply with the "Notice of Emergency" delivered by the Drain Commissioner, then the Drain Commissioner may immediately remove or cause the use to be discontinued of any or all "waterpark facilities" equipment or supplies on the Premises identified in the "Notice of Emergency." LESSEE shall be responsible for all costs for removal of said improvements. LESSOR shall not be liable to LESSEE for lost revenue or other damages resulting from an emergency repairs to the drain, sewer or pollution control facilities. Costs for replacing or restoring "waterpark facilities" shall be shared equally between LESSOR and LESSEE. (d) In the event that LESSOR is required to comply with any administrative permit, rule and/or regulation issued or promulgated by the United States Government or State of Michigan, or agency thereof, or any court order, to improve, repair, or construct additional drain or sewer facilities within the Premises; or conduct any other activities 3 13-4 related to its operations and maintenance of the drain, sewer or pollution control facilities, and where such action results in the removal of all or a portion of the "waterpark facilities", the LESSOR and LESSEE agree to share equally in the replacement or restoration costs necessary to restore the PREMISES and "waterpark facilities." (e) If the LESSSOR, in order to comply with any rule or regulation issued or promulgated by the United States Government or the State of Michigan, or agency thereof, or any court order, is required to take a portion of the PREMISES for drain, sewer, or pollution control facilities, which taking would effectively terminate the ability of the LESSEE to operate the "waterpark facilities" as a golf course, then the lease with terminate at the end of ninety (90) day notice served upon LESSEE by LESSOR. This paragraph will apply, and the ninety (90) day notice shall be served upon LESSEE, only after all appeals, or administrative review LESSOR intends to take has been concluded. During the ninety (90) day period LESSEE will remove its equipment and fixtures from the PREMISES. LESSEE will not be required to remove structures from the PREMISES if the structures will be destroyed as a result of the work to be done by LESSOR to comply with governmental mandates. However, if LESSEE fails to remove structures as required or the removal or destruction of the structures increases the cost to the LESSOR, LESSOR may remove them and the costs for removal shall be the responsibility of the LESSEE. Under no circumstances shall LESSOR be liable to LESSEE for lost revenue or other damages resulting from compliance with the governmental mandates envisioned by this paragraph. 5. ENVIRONMENTAL NOTICE AND DUE CARE RESPONSIBILITIES. LESSEE acknowledges that LESSOR has informed LESSEE that the property may be a "facility," as that term is defined in M.C.L. 324.20101 et seq., and has provided LESSEE with information that LESSOR has concerning existing 4 13-5 contamination on the property. Nothing herein shall be construed as to require LESSEE to undertake any such response action at the Premises, except that is expressly required by any federal, state or local environmental law. LESSEE shall comply with the applicable due care provisions of MCL 324.20107a(1). 6. LESSEE'S DEFAULT. LESSEE shall be deemed to be in default, if it fails to fulfill and provision of this lease. 7. SUBLEASE OR ASSIGNMENT. This lease may not be assigned nor may LESSEE sublease the Premises without prior written consent of the LESSOR, which consent shall not be unreasonably withheld. 8. TAXES OR SPECIAL ASSESSEMENTS. Any real or personal taxes, or special assessments that relate to the operation of waterp ark facilities, shall be the responsibility of the LESSEE. 9. GOVERNING LAW. This Lease is made and entered into in the State of Michigan and shall in all respects be interpreted, enforced and governed under the laws of the State of Michigan. The language of all parts of this Lease is intended to and, in all cases, shall be construed as a whole according to its fair meaning, and not construed strictly for or against any party. 10. CAPTIONS. The section headings or titles and/or all section numbers contained in this Lease are intended for the convenience of the reader and not intended to have any substantive meaning and are not to be interpreted as part of this Lease. Any use of the singular or plural number, any reference to the male, female or neuter genders, and any possessive or non-possessive use in the contract shall be deemed the appropriate plurality, gender or possess as the context requires. 11. ENTIRE CONTRACT; SEVERABILITY. (a) This Lease, sets forth the entire agreement between the LESSOR and LESSEE and fully supersedes any and all prior agreements or understandings between them in any way related to the subject matter hereof. (b) It is further understood and agreed that the terms and conditions herein are contractual and are not a mere recital and that there are no other agreements, understandings, contracts, or representations By: Drainage B Ad for the George W. Kuhn Drainage District John P. MFich, Oakland C wrj Drain Commissioner and Chairperson By: between the LESSOR and LESSEE in any way related to the subject matter hereof, except as expressly stated herein. (c) This Contract shall not be changed or supplemented orally and may be amended only as otherwise provided herein. If any provision(s) of the lease or application thereof to any extent found to be invalid or unenforceable, the remainder of this lease shall not be affected thereby, and each provision of this lease shall be valid and enforceable to the fullest extent of the law. This lease may be modified or amended only by written agreement of LESSOR and LESSEE. (d) The terms and conditions of this lease shall be binding and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns. FOR AND IN CONSIDERATION of the mutual assurances, promises, acknowledgments, warrants, representations, and agreements set forth in this lease, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the undersigned hereby execute this lease on behalf of the Parties, and by doing so legally obligate and bind the Parties to the terms and conditions of this lease. GEORGE W. KUIIN DRAINAGE DISTRICT ("LESSOR") COUNTY OF OAKLAND ("LESSEE") Thomas-A. Law, Chairperson 6 13-7 Oakland County Board of Commissioners Prepared by: John Ross, Sr. Assistant Corp. Counsel For Oakland County Joseph W. Colaianne Attorney & Ins. Administrator For the Drainage Districts . . '.:111111 July 22, 2004 FISCAL NOTE (MISC.. 10400) BY: FINANCE COMMITTEE, CHUCK MOSS, CHAIRPERSON IN RE: PARKS AND RECREATION COMMISSION - RED OAKS WATERPARK LEASE TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS Chairperson, Ladies and Gentlemen; Pursuant to Rule XII-C of this Board, the Finance Committee has reviewed the above referenced resolution and finds: 1. The resolution approves Oakland County Parks and Recreation (OCPR) to enter into a lease with the George W. Kuhn Drainage District for an annual amount of $1 for the property at the Red Oaks Waterpark to allow for the addition of new water features. 2. $3.3 million from the Parks and Recreation Capital Improvement Projects Budget has been committed for the project. 3. The construction, operational and maintenance costs for this facility will be paid for by fees and charges and Parks millage revenues. 4. The lease of the Red Oaks Waterpark property shall commence on May 1, 2004 and extend for 50 years, termination on May 1, 2054. This lease may be renewed or extended by written agreement between the parties. 5. No budget amendment is required. FINANCE COMMITTEE Finance Committee Vote: Motion carried on unanimous roll call vote Resolution #04150 June 17, 2004 The Chairperson referred the resolution to the Finance Committee and the Planning and Building Committee. There were no objections. G. William Caddell, County Clerk Resolution #04150 July 22, 2004 Moved by Scott supported by Knollenberg the resolutions on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Coleman, Coulter, Douglas, Gregory, Hatchett, Jamian, Knollenberg, KowaII, Law, Long, McMillin, Middleton, Moffitt, Moss, Palmer, Patterson, Potter, Rogers, Scott, Suarez, Webster, Wilson, Zack, Bullard. (24) NAYS: None. (0) A sufficient majority having voted therefore, the resolutions on the Consent Agenda were adopted (with accompanying reports being accepted). STATE OF MICHIGAN) COUNTY OF OAKLAND) I, G. William Caddell, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on July 22, 2004 with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 22nd day of July, 2004.