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HomeMy WebLinkAboutResolution - 2003-R0233 - Ground Lease Agreement - Putt-Putt Golf & Games - 06/12/2003Resolution No. 2003-80233 June 121, 2003 Item No. 52 RESOLUTION 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 Ground Lease Agreement between the City of Lubbock and James C. Evans, dba Putt -Putt Golf & Games, 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 this 12th day of ATTEST: ca Garza, City Secretary APPROVED AS TO CONTENT: L/L/'s' 9%n3 Stauffer, FacilitiesA ager APPROVED AS TO FORM: William de Haas Contract Manager/Attorney ccdocs/gs/Lease Agrmnt-Putt-Putt.res May 16, 2003 June 2003. Resolution No. 2003-RO233 June 12, 2003 Item No. 52 GROUND LEASE This Lease is entered into on the 1 st day of June 2003 between the City of Lub- bock ("Landlord"'), a Texas municipal corporation, and James C. Evans, dba Putt -Putt Golf & Games, a sole proprietorship, ("Tenant"'). ARTICLE 1. DEMISE OF LEASED PREMISES In consideration 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 5110 29t]' 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 2.01. Fixed Beginning and Termination Date. The term of this Lease shall be for five (5) years duration and shall continue thereafter unless either Tenant or Landlord gives six (6) months advance notice of termination. 2.02. Right to Extend. Tenant may extend this lease for one (1) additional five year period by giving Landlord written notice of Tenant's intention to do so within the last six (6) months before the lease term expires but no later than thirty (30) days before it ex- pires, under all the terms of this lease. 2.03. Termination. This lease will terminate without further notice when the term specified in 2.01 expires, and any holding over by Tenant after that term expires, other than as provided in 2.02, will not constitute a renewal of the lease or give Tenant any rights under the lease in or to the premises. 2.04. Holdover. If Tenant holds over and continues in possession of the prem- ises after the lease term (or any extension) expires, other than as provided in 2.02, Tenant will be considered to be occupying the premises on an at will tenancy, subject to all the terms of this lease. ARTICLE 3. RENT 3.01. Minimum Monthly Rent.Tenant will pay Landlord One Hundred Twenty- five and no/100 Dollars (5125.00) as good and valuable consideration, per month, during the first five (5) years of this Lease as rent for using and occupying the premises. This amount is the "minimum monthly rent." 3.02. Automatic Rental Adjustments. During the lease term specified in 2.01 and during any extension period of the Lease, the monthly rent will continue to be One Hundred Twenty Five and no/100 Dollars ($125.00) per month. An adjustment shall be done at the time the freeway is completed in the area and no longer causes any extra ex- pense for cleaning of the area. This new rate shall be adjusted on the anniversary date of the lease according to the CPI -U. The CPI -U can be found at htt2://www.biLggv under CPI -U, other goods and services. If the construction is not completed during this term, no adjustment will be made to the rental rates 3.03. Time and Manner of Payment. Tenant will pay all rent due under this arti- cle on a monthly basis. Such monthly rent is due on or before the first of each month. Payments must be made to the designated representative of Landlord in lawful money of the United States in Lubbock, Texas. ARTICLE 4. TAXES 4.01. 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 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 determine 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. 4.02. 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 15 days before it becomes delinquent, Landlord may give written notice to Tenant of its default under 4.01, specifying the default. If Tenant 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. 2 ARTICLE 5. UTILITIES 5.01. Tenant will pay or cause to be paid all charges for water, heat, gas, elec- tricity, sewers, and all other utilities used on the premises throughout the lease term, in- cluding any connection fees. ARTICLE 6. USE OF PREMISES 6.01. Permitted and Prohibited Use of Premises. a. Tenant may use the premises for the purpose of a customer parking area and for no other purpose without the written consent of Landlord. b. Subject to the terms hereof, during the term 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. c. During the construction of the Marsha Sharp Freeway the City Of Lubbock Water Department may lose part or all of their existing right-of-way entry. In the event the Water Departments right-of-way entry is lost, a part of the leased parking area may be withdrawn from this lease to allow the Water Department to regain entry access to the existing Water Pump Station. If or when this event occurs, the monthly rental rate will be reduced by the current value for each parking space that is reclaimed for the entry. 6.02. Illegal Use Not Permitted. Tenant may not use all or any part of the prem- ises for any use or purpose that violates any valid and applicable law, regulation, or ordi- nance of the United States, the State of Texas, the County of Lubbock, the City of Lub- bock, or other lawful authority with jurisdiction over the premises. ARTICLE 7. CONSTRUCTION BY TENANT 7.01. General Conditions. Tenant may, at any time and from time to time during the lease term, erect, maintain, alter, remodel, reconstruct, rebuild, replace, and remove improvements on the premises, and correct and change the contour of the premises, sub- ject 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 ma- terialmen'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 improve- ments, at the time the work begins. k d. The conditions of 7.04 concerning Landlord's approving plans must be followed. 7.02. Easements, Dedications, Zoning, and Restrictions. Landlord will cooper- ate, to the extent it deems feasible, with Tenant concerning easements, dedications, zon- ing, and restrictions of the premises as follows: a. Easements and Dedications. To provide for the more orderly de- velopment of the premises, it may be necessary, desirable, or required that street, water, sewer, drainage, gas, power lines, and other easements and dedications and similar rights be granted or dedicated over or within portions of the premises. Landlord may, in its sole discretion, on Tenant's request, join with Tenant in exe- cuting and delivering the documents, from time to time, and throughout the lease term, as may be appropriate, necessary, or required by the several governmental agencies, public utilities, and companies for the purpose of granting the easements and dedications. b. Zoning. If Tenant considers it necessary or appropriate to obtain use, zoning, or subdivision and precise plan approval and permits for the premises or any part of them, Landlord may, in its sole discretion, execute the documents, petitions, applications, and authorizations as are appropriate or required to submit the premises, or any part of them, for the purposes of obtaining conditional use permits, zoning and rezoning, tentative and final tract approval, precise plan ap- proval, and further, for the purposes of annexation to or the creation of districts and governmental subdivisions. C. Restrictions. At Tenant's request, Landlord may, in its sole discre- tion, from time to time, execute and deliver or join in the execution and delivery of the documents that are appropriate, necessary, or required to impose on the premises covenants, conditions, and restrictions providing for the granting of ex- clusive uses of the premises, or any part of them. d. Expenses. Tenant exclusively bears the cost and expense of any action requested of Landlord under subparagraphs a through c, above. 7.03. Beginning Maintenance. Tenant expects to take over maintenance of the leased premises within one month after possession is delivered to Tenant. 7.04. Landlord's Approval of Plans. The following rules govern Landlord's ap- proving construction, additions, and alterations or other improvements on the premises: a. Written Approval Required. No improvement may be constructed on the premises unless the plans, specifications, and proposed location of the im- provement has received Landlord's written approval and the improvement com- plies with the approved plans, specifications, and proposed location. No material 0 addition to or alteration of any structure erected on the premises may be begun un- til plans and specifications covering the exterior of the proposed addition or al- teration have been first submitted to and approved by Landlord. b. Submission of Plans. Tenant must, at its own expense, engage a licensed landscape architect, architect, or engineer to prepare plans and specifica- tions for constructing improvements that require Landlord's approval under sub- paragraph a above. Tenant must submit two copies of detailed working drawings, plans, and specifications for erecting the statue or monument and the surrounding landscaping. If Tenant wishes to construct any other improvements or make any additions or alterations or improvements for which Landlord's approval is required under Subsection (a) above, Tenant must submit two copies of detailed working drawings, plans, and specifications for any such projects for Landlord's approval before the project begins. C. Landlord's Approval. Landlord will promptly review and approve all plans submitted under subparagraph b above or note in writing any required changes or corrections that must be made to the plans. Any required changes or corrections must be made, and the plans resubmitted to Landlord, within 30 busi- ness days after the corrections or changes have been noted. Landlord's failure to object to the resubmitted plans and specifications within 10 business days consti- tutes its approval of the changes. Minor changes in work or materials not affect- ing the general character of the building project may be made at any time without Landlord's approval, but a copy of the altered plans and specifications must be furnished to Landlord. d. Exception to Landlord's Approval. The following items do not re- quire submission to, and approval by, Landlord: i. Minor repairs and alterations necessary to maintain existing structures and improvements in a useful state of repair and operation. ii. Changes and alterations required by an authorized public offi- cial with authority or jurisdiction over the buildings or improvements, to comply with legal requirements. e. Effect of Approval. Landlord's approval of any plans and specifi- cations applies only to the conformity of the plans and specifications to the gen- eral architectural plan for the premises, and Landlord may not unreasonably with- hold approval. Landlord's approval does not constitute approval of the architec- tural or engineering design, and Landlord, by approving the plans and specifica- tions, assumes no liability or responsibility for the architectural or engineering de- sign or for any defect in any improvement constructed from the plans or specifica- tions. 5 7.05. Ownership of Improvements and Fixtures. Any improvements, additions, alterations, and fixtures constructed, placed, or maintained on any part of the leased premises during the lease term are considered part of the real property of the premises and must remain on the premises and become Landlord's property when the lease terminates. 7.06. Right to Remove Improvements. Tenant may not remove any improve- ments on or to the premises without permission of the Landlord. Before the lease termi- nates, Tenant must repair any damage to any improvements on the premises resulting from the removal. Any such items not removed by the lease termination date will become Landlord's property on that date. ARTICLE 8. ENCUMBRANCE OF LEASEHOLD ESTATE 8.01. Tenant's Right to Encumber. Tenant may not at any time encumber the leasehold interest, 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 term, 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 dam- age or destruction, Tenant must, within one month from the date of the damage or de- struction, 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 to substantially the condition it was in before the casualty. But if be- ginning 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 sup- plied 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. If Tenant contests the lien, Tenant will indemnify Landlord and hold it harmless from all liability for damages occasioned by the C1 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 judgment is executed. ARTICLE 11. CONDEMNATION 11.01. Parties' Interests. If the 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 emi- nent domain, or are transferred in lieu of condemnation to any authority entitled to exer- cise 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 --Termination. If the entire premises are taken or so trans- ferred 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 allo- cated to the real property shall be the property of the Landlord and the proceeds allocated to the buildings and permanent 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 trans- ferred as described in 11.0 1, 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 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 11.01 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 Convey. 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 convey- ance will be treated as a taking within the meaning of this article. 7 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, fire, 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, EM- PLOYEES, 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 CON- TEMPLATED 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 ANY DEGREE, OF LANDLORD, ITS RE- SPECTIVE 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 ADDI- TION, TENANT SHALL PAY TO THE LANDLORD, THE LANDLORD'S RESPEC- TIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS AP- PLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN EN- FORCING 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 oc- currences 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 cov- erages 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 in- surance. N. A. Comprehensive General Liability 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 com- bined 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 Compensation 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 ant time, sell or assign its lease- hold estate in its entirety or any portion of it, or may sublet the premises or any portion of them or any portion of any building or other improvement erected on the premises. ARTICLE 14. DEFAULT AND REMEDIES 14.01. Termination on Default. If Tenant defaults in performing any covenant or term of this lease and does not correct the default within 10 days after receipt of written notice from Landlord to Tenant, Landlord may declare this lease, and all rights and inter- ests 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. Tenant and Landlord agree that, for the purpose of posting the notice required by Property Code Section 93.002(f), the "front door"' of the lease premises will be deter- mined after construction of the improvements. Upon completion, Tenant will give Land- lord notice of location of "front door." 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 M 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 sums or claim for damages by any remedy pro- vided for by law, or from recovering damages from Tenant for any default under 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 indefeasible title to the premises, subject only to the covenants, conditions, easements, and other mat- ters 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 Land- lord, except for any portion of the premises that is taken under the power of eminent do- main. 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; deter- mining 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 partner- ship or a joint venture. 16.03. Force Majeure. If assumption of maintenance as provided in 7.03 or cur- ing 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 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 continue to perform all covenants of this lease. 10 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 default or breach of the same or any other covenant or term of this lease. ARTICLE 17. MISCELLANEOUS 9 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, certi- fied or registered, postage prepaid, to the addresses stated in this section and are consid- ered 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 Facilities Manager, P. O. Box 2000, Lubbock, Texas 79457 or faxed to Landlord at (806) 775-3267, 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 Jim C. Evans, 5110 29th Drive, Lubbock, Texas 79407 or at such other address as Tenant requests in writing. 17.02. Parties Bound. This agreement binds, and inures to the benefit of, the par- ties 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. If any 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 of the lease, which will be construed as if it had not included the invalid, illegal, or unenforce- able provision. 17.05. Prior Agreements Superseded. This agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter. 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 11 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 reason- able time execute and deliver to Tenant, when Tenant reasonably requests, other instru- ments 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. THIS LEASE has been executed by the parties on the date and year first above written. CITY OF LUBBOCK: r . -.r - ATTEST: s Re ecca Garza, City Secretary PUTT -PUTT GOLF & GAMES TENANT eru Wes C. Evans caner 12 APPROVED AS TO CONTENT: -2:L k " Harlan Stauffer Facilities Manager APPROVED AS TO FORM: William de Haas Contract Manager/Attorney 13 Resolution No. 2003-80233 EXHIBIT A LEGAL DESCRIPTION Land located in the City Of Lubbock, Lubbock County, Texas 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", Lubbock County Texas; Thence North 53degrees 54' East a distance of 60 feet to a point; Thence North 36 degrees 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 degrees 06' East a distance of 137.31 feet to the Point of Beginning. Said property is out of and a part of property described as Lot 305, Midway Park Addition to the City Of Lubbock, Lubbock County Texas. 14