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HomeMy WebLinkAboutContract 32504LEASE AGREEMENT STATE OF TEXAS COUNTY OFTARRANT THIS LEASE AGREEMENT (this "Lease") is agreed to be effective June 1, 2004, between the City of Fort Worth ("Lessor") acting by and through its Assistant City Manager, Libby Watson, and Linville and Smith Enterprises, Inc. ("Lessee"), acting by and through its duly authorized Vice President, Rodger Linville. WITNESSETH WHEREAS, Lessor is the owner and operator of public lands known as Z. Boaz Golf Course ("Z. Boaz"); and WHEREAS, Lessee has leased a portion of Z. Boaz since January 1, 1990, to conduct a miniature golf course (currently, but not necessarily in the future, under the name "Putt -Putt") and various other related facilities (collectively "Putt -Putt'); and WHEREAS, Lessee finds that the Putt -Putt is a public use that benefits the public; and WHEREAS, the existing lease agreement dated January 1, 1990, is on file in the office of the City Secretary as Contract Number 17848 (the "Existing Lease"); and WHEREAS, Lessor agrees and stipulates that Lessee is in full compliance with the Existing Lease and is not in default thereunder; and WHEREAS, Lessor and Lessee have agreed to modify the terms of the Existing Lease and incorporate their agreement, as modified into and substituted by this Lease, which will supercede the Existing Lease. NOW THEREFORE, KNOW ALL BY THESE PRESENTS: That, for and in consideration of the mutual agreements in this Lease, Lessor and Lessee agree as follows: 1. TERMINATION OF EXISTING LEASE. CONTRACT NO. 17848 The Existing Lease, identified as Contract No. 17848, is hereby terminated contemporaneously with the execution of this Lease as of the effective date hereof and fully substituted by this Lease, and neither party to the Existing Lease shall have any further duties or responsibilities under the Existing Lease as of the effective date hereof. 2. LEASED PREMISES In consideration of the obligation of Lessee to pay rental as herein provided and in consideration of the other terms, covenants, and conditions hereof, Lessor leases to Lessee approximately 131, 420.21 square feet of public land at Z. Boaz, more particularly described in the metes and bounds field notes description attached as Exhibit "A" and fully incorporated herein by reference (the "Premises"). 3. TERM OF LEASE The primary term of this Lease shall commence on the effective date hereof and end on December 31, 2009 (the "Primary Term"). 4. OPTIONS TO RENEW Lessee shall have the right to exercise one or more options to extend the Primary Term of this Lease (each, an "Option Term") as provided hereafter. Such option(s) must be exercised in writing no sooner than six (6) months prior to the end of the Primary Term or the applicable Option Term then in effect and no later than thirty (30) days prior to the end of the Primary Term or the then Option Term, as applicable. The specified written notice shall be effective upon receipt by Lessor. The terms set forth herein shall govern and control the relationship of the parties hereto during the Primary Term and during any Option Term, except that Lessor may increase or otherwise change the limits of insurance under the conditions as provided in Section 19. hereof during the Option Term(s). The Option Terms herein granted to Lessee by Lessor are as follows: Option 1 — An option for Lessee to extend this Lease for five years following the Primary Term (the "Option 1 Term"), the Option 1 Term to commence on January 1, 2010, and end on December 31, 2014. Option 2 — An option for Lessee to extend this Lease for five additional years following the Option 1 Term (the "Option 2 Term"), the Option 2 Term to commence on January 1, 2015, and end on December 31, 2019. Option 3 — An option for Lessee to extend this Lease for five additional years following the Option 2 Term (the "Option 3 Term"), the Option 3 Term to commence on January 1, 2020, and end on December 31, 2024. 2 5. HOLDOVER Any possession of the Leased Premises by Lessee after the date of expiration of this Lease (whether the Primary Term or an Option Term, as applicable) shall be deemed to be a month -to -month tenancy at sufferance, terminable by either party upon thirty (30) days written notice. 6. RENTAL A. The rental for the Premises shall be the following, as applicable: During the Primary Term- $3,250.00 per month plus ten percent (10%) of any of Lessee's gross fiscal annual income earned by Lessee at the Premises in excess of $612,000 (the ten percent (10%) additional rent being hereafter referred to as the "Additional Rent"). During the Option 1 Term - $3,750.00 per month plus the Additional Rent, if any. Durinja the Option 2 Term - $4,250.00 per month (the "Guaranteed Rental") plus the Additional Rent, if any. During the On_ tion 3 Term - $4,750.00 per month (the "Guaranteed Rental") plus the Additional Rent, if any. The term "Guaranteed Rental" shall be defined to mean the monthly rental payments due under the term of this Lease as set forth above in this Section 6.A. excluding the Additional Rent. The term "Lessee's gross fiscal annual income" (which shall be prorated for partial fiscal years but calculated effective as of the last day of each fiscal year of Lessee) shall be defined to mean all cash and credit sales and rentals, paid or accrued to Lessee, excluding sales, use tax and property taxes and bad debt write-offs and excluding all amortizations and expenses paid, incurred or accrued by Lessee for capital improvements and capital expenditures at or for the Premises. Lessee agrees to keep and maintain accurate books and records in compliance with generally accepted accounting principles sufficient to allow accurate computation of Lessee's gross fiscal annual income. Lessee agrees to provide Lessor with summaries and excerpts of Lessee's books and records in support of the calculation of Lessee's gross fiscal annual income and Additional Rent, if any, payable to Lessor as Lessor may reasonably request. Lessee shall deliver to Lessor the payment of Guaranteed Rental no later than ten (10) days after the end of each calendar month during the term of this Lease. Lessee shall also deliver to Lessor no later than sixty (60) days after the expiration of each fiscal year of Lessee during the Primary Term and any Option Term a financial statement reflecting the calculation of Lessee's gross fiscal annual income for the previous fiscal year (with appropriate prorations, if applicable), together with payment of any Additional Rent payable for the previous year if any such Additional Rent is required to be paid to Lessor by Lessee hereunder. Lessor agrees that Lessee shall have the right and authority to offset against future Guaranteed Rental payments any overpayments of rent as required hereunder that Lessee has at any time paid to Lessor for the period beginning on the effective date of this Lease. 7. USE OF LEASED PREMISES A. Lessee is granted and shall have the right to use and occupy the Premises for the purpose of operating a miniature golf course and related facilities, including, but not limited to, a non -gambling video and game room with various games that will change from time to time at Lessee's discretion consistent with other locations occupied by Lessee or its related entities, food and non-alcoholic beverage concessions, batting cages, parking areas and such other and additional improvements, upgrades and amenities that Lessee determines in its discretion, with the written approval of Lessor, which approval shall not be unreasonably withheld, to construct and/or offer to its patrons in the future provided that any such upgrades, additions and/or expansions are generally compatible with family - oriented recreational activities and consistent with the types of activities offered by Lessee or its related entities at its other Tarrant County locations. B. Lessee agrees that it shall not intentionally unlawfully, immorally, or offensively use the Premises. Lessee further agrees to keep the Premises (i) clean and sanitary; and (ii) in compliance with all state and federal laws and regulations and City of Fort Worth ordinances, except the Fort Worth zoning ordinances. C. Lessee agrees neither to permit the use of loud, abusive, foul, or obscene language on the Premises, nor to permit any unlawful, obscene or immoral acts on the Premises. Lessee agrees to exercise reasonably efforts to remove any person using such language or performing such acts. D. Lessee further agrees under no circumstances during the Primary Term and during Option Terms will Lessee 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, except those listed in Exhibit `B". Lessee further agrees not to do or keep anything on the Premises that will increase the current rate of fire insurance upon the Premises. 8. RIGHT TO AUDIT Lessor shall have the right, at all reasonable times, as agreed upon by Lessor and Lessee to examine Lessee's financial books and records and to conduct or cause to be conducted an independent audit of Lessee's records. If the audit or examination reveals an understatement error in the amount of the gross fiscal annual income that results in Additional Rent payable by Lessee to Lessor, the income that results in a„ refWind 4 Additional Rent previously paid shall be paid immediately by Lessor to Lessee. If the examination or audit reveals a deficiency in the amount of the Additional Rent that has been previously paid or is to be paid by Lessee to Lessor to an extent of more than five percent (5%), the reasonable expenses of the audit or examination shall be reimbursed by Lessee to Lessor within thirty (30) days after Lessee receives written notification, including supportive invoices detailing such expenses. In addition, upon request by Lessor, Lessee's gross fiscal annual income shall be verified by copies of any sales tax returns that Lessee has filed with the Comptroller of Public Accounts of Texas. 9. ITEMS SOLD ON LEASED PREMISES A. Lessee agrees that the prices it charges for the items, goods, and services it sells shall not be materially in excess of the prices charged for the same items, goods, or services at other miniature golf courses of Lessee or its related entities in Tarrant County. B. In addition to those items as identified in Section 7., Lessee shall also have the right to stock and sell equipment and/or clothing bearing the name, emblem, logo and/or symbol of Putt -Putt Golf Course of America, Inc. and/or any other miniature golf course or family entertainment center that Lessor may later establish or become associated with to be or being housed or conducted at the Premises. So long as allowed by law, Lessee shall also have the right to dispense and/or sell prizes awarded for redeeming tickets granted from ticket dispensing games. 10. MAINTENANCE RESPONSIBILITIES Lessor shall not be required to make any improvements, replacements or repairs of any kind or character to the Leased Premises. Lessee agrees that, at its sole cost and expense, it will keep and maintain the Premises in good condition. Lessee agrees to make all reasonable repairs necessary to prevent the Premises from deteriorating materially in value or condition, except for normal wear and aging consistent with its normal usage of the Premises for the uses identified in this Lease. Lessor shall have the right, through its agents and officials, to enter and make inspections of the Premises during normal business hours of Lessee upon prior written notice of no less than three (3) business days and thereafter make reasonable written recommendations to Lessee to restore the Premises to City Code. In this connection, Lessee agrees that it shall, within thirty (30) days from the date of receipt of Lessor's recommendation, begin the repairs or explain why it refuses to do so. If Lessee fails to undertake the recommended repairs within said thirty (30) days and Lessor has not withdrawn its recommendation for repairs, Lessor may deem that Lessee has breached this Lease, in which event Lessor and Lessee will have ninety (90) days to resolve their disagreement or Lessee shall vacate the Premises by the ninety-first (91 �) day thereafter. 11. ALTERATIONS A. General Conditions. Lessee may, at any time and from time to time during the Primary Term (and during all Option Terms), erect, maintain, alter, remodel, reconstruct, rebuild, replace, demolish and remove buildings and other improvements on the Premises, and correct and change the contour of the Premises, subject to the following provisions, however the following provisions, shall not apply to minor repairs. "Minor repairs" shall be defined as alterations and adjustments for which a City building permit is not required. Such minor repairs may be made to the Premises by Lessee from time to time without the prior approval of Lessor. The provisions applicable to all but minor repairs are as follows: a. Lessee shall bear the cost of any such work. b. The Premises must at all times be kept free of mechanics' and materialman's liens. c. Lessee shall provide performance bonds covering any such work, in a form acceptable to the City Attorney when the contract for such work to be performed is for more than $100,000. A payment bond covering any such work, in a form acceptable to the City Attorney is required when the contract for such work to be performed is for more than $25,000.. d. Lessor shall be notified in writing by Lessee of the time for beginning and the nature of any such work, other than minor repairs and routine maintenance of existing buildings or improvements at the Premises, prior to the work being performed. e. Subject to the provisions in Section 12 Within ninety (90) days subsequent to the termination or expiration of this Lease, Lessee shall be authorized to remove or demolish all improvements from the Premises, and Lessor shall not be responsible for reimbursing Lessee for any improvements constructed on the Premises. All improvement costs are the sole responsibility of Lessee. f. The conditions of Section I I.C. concerning Lessor's approving plans must be followed. B. Easements, Dedications, Zoning, and Restrictions. Lessor will cooperate with Lessee concerning easements, dedications, zoning, and restrictions of the Premises as follows: a. Easements and Dedications. To provide for the more orderly development 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. Lessor will, on 2 Lessee's request, join with Lessee in executing and delivering the documents, from time to time, and throughout the Primary Term and all Option Terms, as may be appropriate, necessary, or required by any governmental agency, public utilities, and companies for the purpose of granting the easements and dedications. Provided, however, any such dedication shall be subject to City Council approval. b. Zoning. If Lessee considers it necessary or appropriate to obtain use, zoning, or subdivision and plan approval and permits and zoning changes and/or rezoning for the Premises or any part of them, Lessor, subject to any required approval by the City Council or other appropriate City board or commission, will cooperate and support all applications to obtain any of the foregoing, and consistent therewith, will execute all documents, petitions, applications, and authorizations as are appropriate or required in the judgment of Lessee 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, and plan approval Lessor will execute all of such documents from time to time as requested by Lessee. c. Expenses. Lessee exclusively bears the cost and expense of any action required of Lessor under subparagraphs a. and b., above. C. Lessor's An_ proval of Plans. The following rules govern Lessor's approving construction, additions, and alterations of buildings or other improvements including removal of trees and grasses on the Premises: a. Written Approval and Permits Required. Other than minor repairs and routine maintenance, no building or other improvement may be constructed on the Premises unless the plans, specifications, and proposed location of the building or other improvement has received Lessor's written approval and the building or other improvement complies with the approved plans, specification, and proposed location. It shall be the responsibility of Lessee to pay for and acquire all necessary building permits prior to beginning work approved through the city review process. No material addition to or alteration of any building or structure erected on the Premises may begin until plans and specifications covering the exterior of the proposed addition or alteration have been first submitted to and approved by Lessor. No cutting down or removal of trees or building of roads may occur until Lessee receives Lessor's written approval. b. Submission of Plans. Lessee shall, at its own expense, engage a licensed architect or engineer to prepare plans and specifications for constructing buildings and improvements on the Premises or additions or alterations to any current buildings or improvements on the Premises that require Lessor's approval under the immediately preceding subparagraph a. Lessee shall submit two complete sets of construction plans of detailed working drawings, plans, and specifications and any additional copies of site plans as reasonably required by Lessor for constructing the improvements for Lessor's approval. VA c. Lessor's ADDroval. Lessor will review within thirty (30) days after receipt and approve all plans submitted under the immediately preceding subparagraph b. or note in writing any reasonably required changes or corrections that must be made to the plans to comply with City ordinances and deliver such writing to Lessee within said thirty (30) day period. Any required changes or corrections must be made, and the plans resubmitted promptly by Lessee to Lessor. If Lessor fails to object or note in writing any required changes or corrections to such plans and deliver same to Lessee within the thirty (30) day period, the plans submitted shall be deemed approved by Lessor for all purposes. d. ExceDtion to Lessor's ADDroval. The following items do not require submission to or approval by Lessor: i. Minor repairs and alterations and routine maintenance necessary to maintain existing structures and improvements in a useful state of repair and operation. ii. Changes and alterations required by an authorized public official with authority or jurisdiction over the buildings or improvements located at the Premises. e. Effect of Approval. Lessor's approval does not constitute approval of the architectural or engineering design, and Lessor, by approving the plans and specifications, assumes no liability or responsibility for the architectural or engineering design or for any defect in any building or improvement constructed from the plans or specifications. 12. OWNERSHIP OF BUILDINGS, IMPROVEMENTS, AND FIXTURES Subject to the provisions in Section 12, Lessee agrees that if this Lease is terminated for any reason, Lessor shall have the right to enter upon and take possession of the Premises; and Lessee shall deliver immediate possession of the Premises to Lessor; and if Lessee shall fail or refuse to deliver immediate possession upon termination, then Lessor shall have the right to expel and remove therefrom forcibly, if necessary, Lessee, its agents, servants, employees, contractors, subcontractors, licensee or invitees, as well as Lessee's property; and in such event Lessor shall not be guilty of trespass, and shall incur no liability as a result of such removal. Nothing in this paragraph shall be construed to prevent Lessee from removing within ninety (90) days following any termination of this Lease any property Lessee has placed or erected on the Premises. However, if Lessee determines it is in its best interest to demolish any or all structures on the Premises, Lessee shall inform Lessor of its intent. If Lessor desires to purchase the improvements, Lessor and Lessee agree to negotiate a purchase price in good faith. If Lessor and Lessee are unable to negotiate a purchase price acceptable to both parties, Lessee may demolish any or all structures on the Premises and restore the Premises to a grassy surface. L 13. RIGHT TO REMOVE PERSONAL PROPERTY; FIXTURES Lessee may, at any time while it occupies the Premises, or within ninety (90) days after such occupancy terminates, remove or demolish all personal property, buildings, structures, fixtures, furniture, machinery, equipment, or other trade fixtures (all of which are collectively referred to in this Section 13. as the "Property") owned or at any time placed or erected by Lessee, its sublessees or licensees, or any of its affiliated entities, in, under, or on the Premises, or acquired by Lessee, whether before, during or after the Primary Term and any Option Terms thereafter. Anything in this Lease to the contrary notwithstanding, Lessor unconditionally recognizes, stipulates and agrees that all of the Property at any time located on or at the Premises were erected or otherwise placed thereon by Lessee, its sublessees or licensees, and/or its affiliated entities, and all of the Property is owned by Lessee or its affiliated entities, and all of the Property is subject to removal by Lessee pursuant to the terms hereof. Lessor claims no right, title or interest in any of the Property and waives any and all rights, titles and interest to the Property. Within ninety (90) days following the termination or expiration of this Lease, Lessee shall repair any damage to the Premises resulting from the removal of the Property. Any of the Property not removed from the Premises within ninety (90) days after the Lease termination or expiration will become Lessor's property on the ninety-first (91 ") day after such termination or expiration unless otherwise agreed in writing signed by Lessor and Lessee. 14. GOVERNMENTAL REGULATIONS. A. Lessee agrees to comply fully with all applicable Federal, state, and municipal laws, statutes, ordinances, codes, or regulations in connection with use of the Leased Premises. It will be the responsibility of Lessee to comply with the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et spq. B. Lessee further agrees that, if Lessor calls the attention of Lessee to any violation of municipal, state or Federal law by Lessee, its agents, licensees, or invitees, Lessee shall promptly desist from or correct such violation. 15. INDEPENDENT CONTRACTOR It is agreed that Lessee is an independent contractor and not an agent, representative, or employee of Lessor; that Lessee shall have the exclusive right to control the details of its operations and shall be responsible for the acts and omissions of its agents, contractors, or subcontractors; that the doctrine off respondeat superior shall not apply to Lessor and Lessee, its agents, contractors and subcontractors; and that the lease should not be construed as creating a partnership or joint enterprise between Lessor and Lessee. W 16. INDEMNITY. WAIVER OF LIABILITY A. LESSEE AGREES TO INDEMNIFY, DEFEND AND SAVE HARMLESS LESSOR AND ITS EMPLOYEES, OFFICIALS AND AGENTS (COLLECTIVELY "INDEMNITEES") FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, CLAIMS, SUITS, COSTS (INCLUDING COURT COSTS, ATTORNEYS' FEES, AND COSTS OF INVESTIGATION) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY; OR RESULTING FROM (IN WHOLE OR IN PART): (i) THE USE AND OCCUPATION OF THE LEASED PREMISES, (ii) ANY ACT OR OCCURRENCE ON THE LEASED PREMISES, OR ANY PART THEREOF, (iii) THIS LEASE OR THE PERFORMANCE BY LESSEE OF ITS OBLIGATIONS HEREUNDER OR (iv) ANY ACT OR OMISSION ON THE PART OF LESSEE OR ANY INVITEE, LICENSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, CONTRACTOR, SUBCONTRACTOR OR LESSEE OF LESSEE OCCURRING ON, IN, OR ABOUT THE LEASED PREMISES OR THE BUILDING (THE ABOVE HEREINAFTER COLLECTIVELY REFERRED TO AS "CLAIMS"), EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARISE FROM OR ARE ATTRIBUTED TO THE CONCURRENT NEGLIGENCE, SOLE NEGLIGENCE AND/OR STRICT LIABILITY OF ANY OF THE INDEMNITEES. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST ANY INDEMNITEE IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIMS FOR WHICH LESSEE HAS AGREED TO INDEMNIFY LESSOR, LESSEE, ON NOTICE FROM LESSOR, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT LESSEE'S EXPENSE. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF LESSEE WITH RESPECT TO THE PREMISES, WHETHER OCCURRING BEFORE OR AFTER THE COMMENCEMENT DATE OF THE TERM AND BEFORE OR AFTER THE EXPIRATION OR TERMINATION OF THIS LEASE. LESSEE'S OBLIGATIONS UNDER THIS PARAGRAPH SHALL BE LIMITED TO THE LIMITS OR COVERAGE OF INSURANCE MAINTAINED OR REQUIRED TO BE MAINTAINED BY LESSEE UNDER THIS LEASE. B. NO INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO LESSEE OR ANY OTHER PARTYFOR ANY INJURY TO OR DEATH OF PERSONS AT THE PREMISES OR FOR ANY LOSS OF OR DAMAGE TO PROPERTY OF LESSEE, ITSEMPLOYEES, AGENTS, CUSTOMERS, INVITEES OR OTHERS AT THE PREMISES, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO EMPLOYEES OF LESSEE, OR SUCH LOSS OR DAMAGE IS OCCASIONED BY CASUALTY, THEFT, OR ANY OTHER CAUSE OF WHATSOEVER 10 NATURE, EXCEPT TO THE EXTENT THAT SUCH INJURY, LOSS OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENCE OR INTENTIONAL ACTS OF ANY INDEMNITEES OR ANY AGENTS, EMPLOYEES, REPRESENTATIVES OR CONTRACTORS OF ANY INDEMNITEES. IN NO EVENT SHALL ANY INDEMNITEES BE LIABLE IN ANY MANNER TO LESSEE AS THE RESULT OF THE ACTS OR OMISSIONS OF LESSEE OR ITS AGENTS, EMPLOYEES OR CONTRACTORS ALL PERSONAL PROPERTY UPON THE LEASED PREMISES SHALL BE AT THE RISK OF LESSEE ONLY AND NO INDEMNITEES SHALL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, EXCEPT TO THE EXTENT THAT SUCH DAMAGE OR THEFT IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR INTENTIONAL ACTS OF ANY INDEMNITEES, OR ANY AGENTS, EMPLOYEES, REPRESENTATIVES OR CONTRACTORS OF ANY OF INDEMNITEES. 17. DEFAULT AND TERMINATION A. Lessor shall provide written notice to Lessee of any failure to comply with any term of this Lease. Lessee shall then have thirty (30) days after receipt of such notice to cure the default or breach. If, after thirty (30) days after delivery of notice by Lessor to Lessee, the default or breach has not been corrected, then Lessor shall have the right upon further notice to Lessee to declare this Lease terminated. If this Lease is terminated by Lessor, all rights of Lessee shall cease and Lessee shall vacate the Premises within ninety (90) days after receipt of notice of termination and return the Premises to its original condition. Lessee shall make no claim of any kind against Lessor for the termination unless Lessee believes such termination is wrongful. Any property of Lessee not removed within ninety (90) days, at Lessor's election, may be retained and disposed of by Lessor. B. Lessee agrees that if this Lease is terminated for any reason as permitted by this Lease, Lessor shall have the right to enter upon and take possession of the Premises after the ninety (90) day period set out above; and Lessee shall then deliver possession of the Premises to Lessor; and if Lessee shall fail or refuse to deliver possession as required, then Lessor shall have the right to expel and remove therefrom forcibly, if necessary, Lessee, its agents, servants, employees, contractors, subcontractors, licensees, or invitees, as well as Lessee's property; and in such event Lessor shall not be guilty of trespass and shall incur no liability as a result of such removal. Nothing in this paragraph shall be construed to prevent Lessee from removing within ninety (90) days following any termination of this Lease any property Lessee has placed or erected on the Premises. C. The acceptance by Lessor of fees for any periods after Lessee's default shall not be deemed a waiver of any of Lessor's rights to cancel this Lease for Lessee's 11 J L breach. No waiver of default by Lessor of any of the terms of this Lease to be observed by Lessee shall be construed to be a waiver of any subsequent default by Lessee of any of the terms of this Lease. D. Lessee further agrees within ninety (90) days after the end of the term of this Lease (the "90 Day Period") to deliver to Lessor the Premises. It is recognized and stipulated that all improvements located at the Premises have been constructed, erected and placed thereon at the expense of Lessee. Lessee shall, therefore, be authorized to demolish or otherwise remove any or all of such improvements from the Premises within the 90 Day Period, thereby leaving the Premises partially or completely vacant of improvements at the discretion of Lessee. Any property not demolished or removed within the 90 Day Period shall be deemed to have been abandoned to Lessor by Lessee. Notwithstanding the foregoing, this Section 17.D. of this Lease is subject to the same terms as set forth as length in Section 12. hereof and any other provisions of this Lease inconsistent herewith. 18. MECHANIC'S LIEN Lessee shall not cause or permit any mechanics' liens or other liens to be filed against the fee of the Premises or against Lessee's leasehold interest in the land or any buildings or improvements on the Premises by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Lessee or anyone holding the Premises or any part of them through or under Lessee. If such a mechanic's lien or materialman's lien is recorded against the Premises or any buildings or improvements on them, Lessee must either cause it to be removed or, if Lessee in good faith wishes to contest the lien, take timely action to do so, at Lessee's sole expense. IF LESSEE CONTESTS THE LIEN, LESSEE WILL INDEMNIFY LESSOR 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 JUDGMENT IS EXECUTED 19. Insurance A. Lessee shall provide and maintain a Certificate of Insurance documenting the following insurance limits for the entire term of this Lease: Commercial General Liabilitv Insurance Limits of Coverage $1,000,000.00 per occurrence $2,000,000.00 Aggregate 12 Worker's Compensation and/or Occupational Accident and Emnlovee's Liabilitv Coverase Employer's Liability (subject to $1,000,000 combined aggregate for any single event): $100,000.00 per accident/ occurrence $100,000.00 disease per each employee $500,000.00 disease/employee limit Building and Improvements At all times during the Term and any extension, Lessee shall maintain commercial all-risk property insurance on all buildings and other improvements located or being constructed on the Premises at not less than eighty percent (80%) of the replacement cost of such improvements. Lessee shall pay all costs for such insurance and shall be responsible for any deductible required. The insurance policy or policies must name both Lessor and Lessee as named insured and may provide that any loss of $100,000 or less will be payable solely to Lessee for restoration of the improvement. B. Reuirement of Certificates of Insurance. • The City of Fort Worth, its Officers, Employees and Volunteers shall be named, as its interest shall appear, as Loss Payee an as Additional Insured. Notwithstanding the foregoing, said additional insured requirement does not apply to Workers' Compensation policies. • Thirty days (30) notice of cancellation or non -renewal. This insurance shall not be canceled, limited in scope or coverage, cancelled or non renewed, until after thirty days (30) prior written notice has been given to the City of Fort Worth. • The insurers for all policies must be licensed/approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. Such insurance policies shall be primary, without right of contribution and not subject to any offset by any other insurance carried by the City or the Contractor • If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. • "Unless otherwise stated, all required insurance shall be written on the "occurrence basis"". If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual 13 agreement and the certificate of insurance shall state that the coverage is claims - made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by the City's Risk Manager. *The City, at its good faith discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. In the event the City requires the insurance limits to be increased or changes in policy categories or types of coverage, the City shall provide written notice to the contracting party. The contracting party will have ninety days from the date of notice to comply with the additional requirements. Notwithstanding the foregoing, it is recognized by the City that the current deductibles provided by Lessee's insurance are acceptable and will not be changed or subject to modification by the City unless otherwise required by statutory law that gives the City no alternative. • The City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 20. NOTICES Notices under this Lease addressed to Lessor shall be delivered by hand delivery or sent by certified mail addressed to: City of Fort Worth Park and Community Services Department Director 1000 Throckmorton Street Fort Worth, Texas 76102 Notices under this Lease addressed to Lessee shall be sent by certified mail addressed to: Linville and Smith Enterprises, Inc. C/o Rodger Linville P.O. Box 152465 14 �, —_ ._--_,,__ Arlington, Texas 76015 Copy to: Mr. Elliott S. Garsek Barlow Garsek & Simon, LLP 3815 Lisbon Street Fort Worth, Texas 76107 Any party to this Lease may designate in writing any changes of their address by giving written notices to the other party. Mailing or delivery of all notices pursuant to this paragraph shall be deemed sufficient if mailed postage prepaid, return receipt requested, and addressed as specified above, unless the parties have been notified in writing of any changes in the other party's address, or personally hand delivered to a party. All time periods related to any notice requirements specified in this Lease shall commence on the date notice is received by the party to whom it is sent, depending on the terms specified in the paragraph requiring the notice. 21. SUBLEASE AND ASSIGNMENT A. Lessee agrees that it shall not sublet or assign any part of its rights, privileges, or duties under this Lease without the prior written consent of Lessor's Park and Community Development Director, and any attempted sublease or assignment without the prior written consent of Lessor shall be void. B. Lessor agrees to the sublease contract between Lessee and S&B Video, Inc., a supplier of arcade machines, and/or any other or additional entity related to or affiliated with Lessee and/or with S&B Video, Inc., and/or any of the shareholders of S&B Video, Inc., and/or any other similar contracts with other third parties that have the same or similar structure and approach as the sublessee arrangement with S&B Video, Inc. Lessor accepts that the total revenue received by Lessee from S&B Video, Inc. is a percentage of total revenue received from the operation of the games and machines. Only the amount of money received by Lessee from S&B Video, Inc. shall be considered as a part of the gross fiscal annual income for purposes of this Lease. The pertinent terms of the sublease contract are set out in a letter attached and incorporated as Exhibit "C". 22. CHOICE OF LAW: VENUE. A. This lease and the relationship created hereby shall be governed by the laws of the State of Texas. B. Venue for any action brought to interpret or enforce the terms of the Lease or for any breach shall be in Tarrant County, Texas. 15 23. ENTIRE AGREEMENT; MODIFICATION A. This Lease shall constitute the entire agreement of Lessor and Lessee, and shall supersede any prior agreements, either oral or written, pertaining to the Leased Premises. B. This Lease cannot be changed or modified orally, but only by an instrument in writing signed by both parties. 24. MISCELLANEOUS PROVISIONS A. 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. B. Permits and Licenses. Lessee shall, at its expense, obtain and keep in effect all licenses and permits necessary for the operation of its business. C. Severability. If any term or provision of this Lease, or the application thereof to any person or circumstance, is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease, and the application of such terms or provisions to other persons or circumstances, will not be affected thereby, but rather shall be enforceable to the greatest extent permitted by law. D. Inspection. Lessor shall have the right to inspect the Leased Premises at any reasonable time to determine compliance with this Lease. ATTACHMENT & EXHIBITS Exhibit A Leased Premises Exhibit B List of Hazardous Substances or materials on the Premises Exhibit C PertXnent Ter s of ublease SIGNED this i -r ' day of Q , 200�` LESSOR: ity of Fort Worth By: i by Watso Assistant City Manager LESSEE: Linville and Smith Enterprises, Inc. BY Rodger Lin ' le Vice President 16 ATTEST: By: f�a -_ wv kkA"�-___-~- Marty Hendrix LEGALITY: 17 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Libby Watson, Assistant City Manager, known to me to be the same person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that she executed the same as the act of said City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1,?;a day of e) , 2005. ROSEL .A BARNES Notary Public in and for the State of Texas _•• :*= MY COMMISSION EXPIRES =?;. 4r ti� M&O 31, 2009 18 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Rodger Linville, Vice President, known to me to be the same person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Linville and Smith Enterprises, Inc. and that he executed the same as the act of said Linville and Smith Enterprises, Inc. for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of �_4. , 2005. �- o��p. PAMELA K. MARTIN Notary Public, State of Texas Notary Public in and for the State of Texas My Comrrlssion Expires 06.20•08 19 EXHIBIT "A" FIELD NOTES for A parcel of land out of the Z. Boaz Municipal Golf Course. PUTTING COURSE LEASE A parcel of land out of the Z. Boaz Municipal Golf Course, as conveyed to the City of Fort Worth, by deed recorded in Volume 1036, Page 125, Deed Records, Tarrant County, Texas, and more particularly described as follows: BEGINNING at a point in the south right-of-way line of Calmont Avenue, South no degrees 27 minutes 23 seconds West 20.96 feet and South 88 degrees 12 minutes 23 seconds West 462.0 feet from the northeast corner of said City of Fort Worth tract recorded in Volume 1036, Page 125; THENCE: South 1 degree 47 minutes 37 seconds East 67.51 feet; THENCE: South 44 degrees 46 minutes 53 seconds West 457.78 feet; THENCE: North 48 degrees 36 minutes 07 seconds West 267.40 feet; THENCE: North 1 degree 47 minutes 37 seconds West 199.16 feet to a point in the south line of Calmont Avenue; THENCE: North 88 degrees 12 minutes 23 seconds East, with the south line of Calmont Avenue, 527.43 feet to the place of begin- ning and containing 131,420.21 square feet of land more or less. PUBLIC WORKS DEPARTMENT KEITH A. SMITH, P.E., DIRECTOR JOHN L. JONES, P.E., CHIEF ENGINEER EPD:sab 7/18/78 Exhibit B Hazardous Materials Gasoline Window Cleaner House Paint Oil Spray Paint Rubbing Alcohol Propane Grease Paint Stripper Rust Remover Pesticides Bleach (Floor Cleaner) Deck Stain Paint Thinner Carpet Shampoo Algaecide Fast Orange (Hand Cleaner) Rodent Killer Fertilizer Counter Polish Acetone Drain Cleaner Latex Caulk Mineral Refrigeration Oil Spackling Paste Simple Green Cleaner Concrete Crack Filler Contact Cement Carburetor Cleaner Self -Etching Primer Gel Degreaser Insect Repellant Amsoil 21 EXHIBIT "G" April 25, 1990 Mr. Raman GuaJardo { City of Fart Worth#' Texas 1000 Throckmarton :. Fort Worth, TZ 76102 Re: Putt-Putt-Z. Boar Golf eourae-property leave Dear Mr. Guajardo: This latter is to confirm a contractual agreement between Linville & Smith Enterprises, Inc., d/b/a putt -Putt and S & A Videa..in Irving, Texas. It is my.understanding.that this letter is to be attached to the lease 'executed between the City of Port Worth and ~Linville & Smith Enterprises, Inc. This contract between 6 & D--Video -and Putt -Putt is -entitled $Location Agreement% Its pertinent terms are as :folIown s S B Video will,. &t it"s expense, purchase,• inst&ll and maintain all video games .and pin ball.- machines at the 10catfon - Putt Z. Boas. T S & B Video will furnish and install only the lates.t and, commercially most popular ganeB at said.location. After taxes are paid to the State a` Texas for aperating these emuseme:t machines, S & B Video will pay 35%'cf the total gross proceeds from the operation of these machines to Putt --Putt. The present location agreement was signed on 1/2/90 f or a term of five yeara ending December 31, 1995. Said agreement was signed by Rodger Linville, Ft. Vtorth, Texas, Vice -President Linville & Smith Enterprises, Inc. and Dave Patterson, Irving, Te-.an,.President S & B Video, Inc. This is the information that you have requested relative to the sub -let .agreement that Linville Smith Enterprises, Inc. has for the purchase, operation and -maintenance of the video games and pin ball machines at our S. Boaz Location. Very truly yours, P.odger Linville Vice -President /tay • c� City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 7/19/2005 DATE: Tuesday, July 19, 2005 LOG NAME: 80PUTTPUTT80 REFERENCE NO.: C-20864 SUBJECT: Authorize the City Manager to Amend and Renew the Lease Agreement with Linville and Smith Enterprises, Inc., (AKA Putt Putt Golf) for Use of a Portion of Z-Boaz Golf Course as a Miniature Golf and Batting Practice Facility RECOMMENDATION: It is recommended that the City Council: 1. Authorize the amendment and renewal of the existing lease agreement with Linville and Smith Enterprises, Inc. for use of a portion of Z-Boaz Golf Course for operation of a miniature golf and batting practice facility; 2. Authorize the term to be for five years with three five-year renewal options; 3. Authorize the monthly fixed rent payment to be $3,250 ($39,000 annual) plus 10% of the gross fiscal income in excess of $612,000, with an optional monthly fixed rent increase in year six to $3,750 ($45,000 annual); year 11 to $4,250 ($51,000 annual) and year 16 to $4,750 ($57,000 annual); and 4. Authorize the annual revenue to be credited to the Golf Enterprise Fund. DISCUSSION: Since January 1, 1990 Linville and Smith Enterprises, Inc. has leased and operated Putt Putt Miniature Golf on a portion of Z-Boaz Golf Course. The purpose of this amendment and renewal is to revise the lease to accurately reflect current market conditions and provide a stable lease for continued operation of this revenue generating facility. Putt Putt Miniature Golf provides the public recreation benefit of miniature golf and batting practice cages at this facility. The lease has continued on a month -to -month basis while the City and Linville and Smith Enterprises, Inc. staff negotiated the renewal terms of this lease. The Parks and Community Services Fort Worth Golf staff will be responsible for collecting the revenue and ensuring it is credited to the Golf Enterprise Fund. Z-Boaz Golf Course and this Leased Facility are located in Council District 3. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Parks and Community Services Department is responsible for the collection of funds due the City under this lease agreement. TO Fund/Account/Centers FROM Fund/Account/Centers PE39 466162 0804005 $39,000.00 Submitted for Citv Manager's Office bv: Orlainatino Department Head: Libby Watson (6183) Randle Harwood (Acting) (5704) Additional Information Contact: Randle Harwood (Acting) (5704)