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Home My WebLink AboutC2010-396 - 10/26/2010 - Approved1 LEASE AGREEMENT THE STATE OF TEXAS . COi7NTY OF NUECES KlVO't~t~ ALL MEN BY THESE PRESENTS: This Lease Agreement {referred to as this "Agreement" or this "lease"} is made and entered into by and between The City of Corpus Christi, a Texas home rule municipality (referred to as the "City" or as "City") and Foresight Carpus Christi Galf; L.L.C. ("operator"}, a Texas limited liability company and wholly awned subsidiary of Foresight Golf, L,L.C., a Texas limited liability company. Definitions. "Annual Review" means the process as described in Section 6.21 below. "Capital Fund" means the fund established through per round surcharge and City Capital Improvement Program funding by the City to pay for mutually agreed upon improvements to the Leased Premises. "City" means the City of Corpus Christi, Texas. "City Manager" means the City Manager of Corpus Christi ar designee. "Contract Administrator" means the Director of Parrs and Recreation. "City council" means the City Council of the City of Corpus Christi, Texas. "Effective Date" means the 61g` day after the date of final City Council approval of this Agreement. "Extended Term" means the ten year extension period and the five year extension perrc~d a~uth©rized in accordance with Section 3.2. "Financial Reports" mean the fallowing monthly reports prepared by Operator far Contract Administrator: i} monthly Sales Reports; (ii} monthly Tee Sheets with itemized play record; {iii) monthly Deposit Summary, Reconciliation and Cash Drawer Reports; (iv} monthly Concession Reports; ~v} monthly Play Reports; (vi} monthly calculations of the Operations Rese7rve Fund; (vii}annual audited Balance Sheet, Statement of Profit and Lvss and Changes in Financial Condition for the operations of the Golf Courses prepared in accordance with 'T" "~ ~~_.- - - - uresi t tease A cement execution Co 2 492E2(I1Q docx 2010-396 ~' ~' ( PY )• Ord. 028822 14/26/10 Foresight Corpus Christi Golf ~~~ 2 GAAP; {vii) all calculations of rent paid, Operator shall also provide to Gity such other financial reports as are reasonably available as requested by the Contract Administrator. "GAAP"means Generally Accepted Accounting Principles. "Gabe Lozano" means the Gabe Lozano Sr. Golf Course. "Golf Courses" means the Gabe Lozano Sr. Golf course and the Oso Beach +~olf course, "Initial Term" means the ten year period beginning February 1, 2Q11. "Leased Premises" means the Golf Courses, and any real property improvements located at the Golf Courses, and personal properly equipment identif ed in Exhibit A. "Lease Termination Fee" means the fee payable by City upon certain terminations of this Agreement as described in Section 3.3 below. "Net Cash Flow from Operations" means the dollar amount of gross revenues received by Operator from operations ofthe Golf Courses golfoperations, including green fees and cart fees, Pro Shop sales and snack bar food and beverage sales, less (i) amounts collected far retail sales tax, federal retailer's excise tax, state, county or municipal tax on the sale of alcoholic beverages or future tax of like applications, (ii}the Operations Reserve Fund, and (iii} operating expenses of the Golf Courses. "Operating Expenses of the Galf Courses" shall mean {i) salaries, wages, overtime and benefits expenses and reasonable and continuing golf education for the employees employed at the Golf Courses; (ii) building and equipment maintenance, lease and replacement expenses incurred, including lease or fnance payments far the golf cart fleet, offce equipment, tools and equipment purchases in the ordinary course afbusiness; {iii) customary memberships and dues expenses; (iv) insurance premiums paid; (v} costs of practice range baps, fertilizer, chemicals, employee uniforms, fuel, lubricants and other supplies purchased in the ordinary course afbusiness; (vi) costs ofinventory purchased for sale in the Pro Shops; (vii) utility charges incurred including electric and telephone services; (viii} accounting services for preparation of financial reports and financial statements; and (ix) such other operating expenses that have been approved by the City I1~anager in advance, "Operations Reserve Fund" means a fund not to exceed ~ 10Q,g04 which shall be established fr©m the gross revenues from the Operator's operation of the Golf Courses. "Operator" means Foresight Corpus Christi Golf, L,L.C. H;1LEG-DlRli:isal2d I0 ParklFaresight Lease Agreement (Execution Copy 2 0921210}.docx 3 "Oso Beach" means the Oso Beach Golf Course. "Performance Standards" mean the maintenance, and operating standards to be employed at the Golf Courses, listed on Exhibit B to this agreement. "Possession Date" means February 1, 2411. "Rent" means one-half of the positive Net Cash Flow From Operations. "Request far Proposal" means the Request for Proposal for Golf Course Management Service (BI~4460-1Oj, as amended. "Risk Manager" means the City Risk lVlanager. "Term" means the Initial Term or any Extended 'T`erm. "Trade Fixture" means personal property equipment owned by fperator or purchased solely with Operators funds installed on the Leased Premises far operation of the Golf Courses ~.uring the Term. Section 1. Leased Premises: 1,1 For and in consideration of the conditions, covenants and agreements to be kept and performed by Operator, City does hereby lease and let unto Operator, and Operator does hereby lease frrom City all of that real and personal property equipment described on Exhibit A attached hereto and incorporated herein by reference located in Corpus Christi, Nueces County, Texas, the "Leased Premises"} conunonly known as The Oso Beach Golf Course ("'Oso Beach") and The Gabe Lozano Sr. Golf Course ("Gabe Lozano" and referred to together as the "Golf Courses"}. 1.2 Revisions to Leased Premises: The parties may amend this Agreement to add or remove golf courses and golf course personal property equipment from the Leased Premises in accordance rn+ith the Request for Froposal. If City acquires additional golf course properties, then Operator shall have the prior right of first refusal to enter into a lease or management-arrangement with City with respect to such additional golf course property. Section 2. Effective Date and Possession: This Lease is subject to approval of the City Council of the City (the "Council"} and is not effective until the 61st day after the date of final approval l}y the Council (the "Effective H:1LEti-DiRiLisa1201€i Paricli+aresigFit Lease Agreement (Execatian dopy 2 09212A1~j.dacx Date"), The date of Operator's right of possession to the Leased Premises and responsibility for operations of the Golf Courses (the "Possession Date"} will be February 1, 20l 1. Sectaan 33. Term of Lease Termination: 3.1 Initial Term. This lease shall have an initial term often years commencing on February 1, 2011 and ending an January 31, 2021("Initial Term"} subject to extension for the Extension Term. 3.2 Extension Tenn. This lease may be extended upon written agreement of the Operator far an additional ten year term and then an additional five year term (each extension referred to as an "Extended Term"j upon written approval of City Manager. Operator shall notify the City Manager in writing at least one-hundred eighty (180} days before the end of the Initial Term ar Extended Term if Operator elects net to renew this lease for the next Extended Term. 3.3 Termination for Default. The City may terminate this lease, in accordance with Section 15 below, following an event of default by Operator as described in Section 15 below, without any cost to City. 3.4 Termination Without Cause. Upon City Council approval and appropriation of funds to pay the Lease Termination Fee, the City may terminate this Agreement at any tine without cause upon one hundred eight (i 80) days prior written notice to Operator and upon payment of the Lease Termination Fee to Operator, 3.4.1 If this lease is terminated without cause within the first twenty-four (24) months of the Initial Term, then the Lease Termination Fee shall be Twv Hundred Eighty-Eight Thousand Dollars {288,000.00). 3.4.2 If this lease is terminated without cause after the f rst twenty-four (24} months ofthe Initial Term, then the Lease Termination Fee shall be an amount equal to the lesser of (a) the Rent accrued for the City for the twenty-four (24} month period immediately preceding the termination divided by two (2) to determine an average twelve (12) months of Rent, then multiplied by the number of years remaining withinthethen-current Tenn, with any partial year rounded up to the next full year, or (b) Five Hundred Thousand Dollars ($500,400.OOj. 3.5 Duties and Responsibilities Upnn Termination. In addition to any ether duties and obligations identified in this Agreement, Operator shall have the following duties and H.1LEG-DIR1Lisa12010 ParklForesight Lease Agreement (Execution Copy 2(}9212©10}.docx 5 responsibilities at the termination ofthis lease, whether occurring by normal expiration or as otherwise herein provided: 3.5.1 Operator shall yield up the Leased Premises including all equipment that constitute part of the Leased Premises to City in good and operable condition and repair, damage For ordinary wear and tear, fire or casualty excepted where Operator is not at fault. 3.5.2 Operator shall make available to City any Trade Fixtures upon payment of market value for such Trade Fixtures. If City elects not to purchase Trade Fixtures, Operator nay remove such Trade Fixtures from the Leased Premises provided Operator repairs any damage caused by such removal. 3.5,3 All Trade Fixtures or any other Operator-awned property which remain at the Leased Premises after the termination or expiration of the Agreement automatically becomes City property without the necessity of any further notice ar legal action, 3.5.4 Upan termination of the Agreement, Operator shall, upon City Manager's written request, provide all or part of the services described in this Agreement on a m©nth-to-month basis for a monthly management fee for term not to exceed six months. The monthly management fee shaI1 be equal t4 Twelve Thousand Dollars {$12,000.00) adjusted by a percentage equal to the increase in the Consumer Price Index, All Urban Consumers, U.S. City Average, All Items, Not Seasonally Adjusted {"CPI-U") as published by the United States Bureau of Labor Statistics, or . such other index as may succeed the CPI-U four the Houston-Galveston~Brazoria Areas from year 2010 to the date of payment of the management fee. Section 4, Rental: 4.I Calculation of Rent. Operator shall pay to City far the lease of the Leased Premises rent equal to one-half of the Net Cash Flow From Qperations earned on the operations of the Golf Courses with Operator responsible for fianding any negative cash flow each year. The term Net Cash Flow From Operarions will mean the dollar amount of gross revenues received by Operator from operations of the Goff Courses golf operations, including green fees and cart fees, Pro Shop sales and snack bar food and beverage sales, less {i) amounts collected fox retail sales tax, federal retailer's excise tax, state, county ar municipal tax on the sale of alcoholic beverages or fixture tax of like applications, {ii) the Operations Reserve Fund {defined below), and (iii) operating expenses of the Golf Courses. H:tI,EG-DiRlLisa12010 FarktFaeesight Lease A~reeme~t (Execution Copy 2 09212010).doex 6 Operator shall calculate a Net Cash Flow From Operations for each separate golf course. City and Operator acknowledge that golf lesson fees collected by teaching professional for lessons given on their own time are retained by the teaching professional and are not included in gross revenues from golf operations. 4.2 Operating Expenses. "Operating Expenses of the Golf Courses" sha11 mean (i} salaries, wages, overtime and benefits expenses and reimbursed reasonable costs of travel and continuing education for the employees employed at the Golf Courses; (ii) building and equipment maintenance, lease and replacement expenses incurred, including lease or finance payments for the golf cart fleet, office equipment, tools and equipment purchases in the ordinary course ofbusiness; (iii} customary memberships and dues expenses; (iv}insurance premiums paid; (v} costs of practice range balls, fertilizer, chemicals, employee uniforms, fuel, lubricants and other supplies purchased in the ordinary course ofbusiness; (vi} costs of inventory purchased for sale in the Pro Shops; (vii) utility charges incurred including electric and telephone services; (viii} accounting services for preparation of financial reports and ..financial statements; and (ix} such other operating expenses that have been approved by the City Manager in advance. ~ 4.3 Operations Reserve Fund. Operator shall establish and maintain during the Terrz~ ~~ an operations reserve fund in the amount up tv One Hundred Thousand Dollars ` ($10Q,000A0), being up to Fifty Thousand Dollars ($SQ,000.00} for the benefit of each of the Gity and the Operator (the "Operations Reserve Fund"}. Operator shall establish the Operations Reserve Fund out of the grass revenues of operations of the GolfCourses. Upon final termination of this lease and Operator's surrender of the Leased Premises, one-half of the then balance of the flpexativns Reserve Fund will be paid to City together with any final payment of Rent. 4.4 Schedule of Rent Payment. Starting on January 31, 2012, and continuing each subsequent January 31 of each year during the Tenn, Operator shall pay the Rent, to the extent ofpositive Net Cash Flow From Operations far the preceding calendar year, to City, in arrears. (The parties agree that the first January 31, 2012 payment shall actually include the Net Cash FIow Fram Operations over the period from the Possession Date through December 31, 2011,} Operator shall utilize the services of Certified Public Accountant to calculate the Net Cash Flow From Dperation and provide City with such records no later than January 31 of each calendar year, Operator may prepay Rent at any time that Operator determines positive Net Cash Flow From Operations are available, which prepaid Rent shall be credited against the Rent next coming due under this Agreement. At the time of each payment of Rent to City, Operator shall distribute to itself or to an affiliated entity from the operations of the Golf Courses the remaining one-half of Net Cash Flow From Operations. H:1L.EG-UIR1I..isa1201fl Paekl~'oresight Lease Agreement (Execution Copy 2 Q9212QI0).docx Section 5. Use of Premises: Operator shall use the Leased Premises only for business purposes as municipal golf courses and for no other purpose without the prior written consent of City. Operator shall comply with all rules, regulations, ordinances, the City Charter and laws ofpublie authorities applicable to its operations of the Galf Courses and its obligations in connection with the Leased Premises. Operator will not discrimiinate nor permit discrimination against any person or group of persons with regard to employment and the provision of services at, on, yr in the Leased Premises, on the grounds of race, religion, national origin, marital status, sex, age disability, or in any manner prohibited. by the laws of the United States .or the State of Texas. The City hereby reserves the right to take action necessary to enforce this covenant. Section &. Operation of Golf Cou~•ses: 6.1 Operating Hours. Operator shall operate the Golf Courses 36S days ofthe year with the minimum fours of operation as follows: ~i} Oso Beach, 5fi~1 South Alameda St+, Corpus Christi, Texas 78412 Monday through Sunday, 7:4Q AM to 5:34 PM (or sunset if earlier) with an eighteen (18) hole regulation course, fully stocked pro shop, practice putting, chipping greens and snack bar; and (ii) Gabe Lozano, 4441 Old Brownsville Rd, Corpus Christi, Texas 78405, Monday through Sunday, 7.04 AM to ?:3D PM (or sunset if earlier, except with respect to the driving range} with an eighteen (l 8},hale regulation course, a nine (9) hole executive course, lighted driving range, practice putting green, fully stocked pro chap and snack bar. Operator shall. operate the practice driving range (Gabe Lozano only} and insure the driving range is open daily during such hours or other hours approved by the City acting through the City Manager and posted on site at Gabe Lozano. In operation of the driving range, Operator will supply good quality range balls for use by the public at the driving range facility. Operator shall mairztaia the driving range, regular bal! pick up, and daily cleaning ofthe facility. Operation of the Galf Courses and the driving range are subject to weather conditions, and as determined by Operator, the Galf Courses or driving range may be closed in response to certain weather conditions, but the Pra Shops shall remain open during such minimum hours. Operator shall make its operations manuals available for review by the City Manager at the offices of Operator's legal counsel in Corpus Christi. 6.2 Operations Activities. Operations of the Galf Courses includes the day to day golf course maintenance, gaff course turf operations, irrigation maintenance, water pump maintenance, equiprn:ent maintenance, tree care, pro shop operations, golf professional services, driving range operations, golf cart operations, retail operations and supervision andlor operation of the food concessionaire. Performance standards including operations mission statement, customer satisfaction, maintenance offacilities, and maintenance of the H:1[,EG-D~R1I.isaE2(?1(f ~'arklFaresi~ht Lease Agreement (~cecution Capy Z U9~12I310}.docx 8 Golf Courses turf conditions are attached as Exhibit B and incorporated herein by reference (the "Performance Standards"}. 6.3 Green Fees Structure. 6.3.1 After the initial twelve (12) months of the .Initial Term, Operator proposes to simplify the green fees structu~•e previously established by the City for operations vfthe Galf Courses to more customary industry standards, and Operator`s obligations under this Agreement are subject to and contingent upon the City Council amending the City Ordinance to exclude Operator or other private course operator from required fee schedule established by Ordinance at the time City Council approves this Agreement. 6.3,2 For the initial twelve (12} months of the Initial Term, Operator sha11 not increase the green fees for the Golf Courses that are set forth on Exhibit C and incorporated herein by reference and shat! honor outstanding green fees loyalty program punch cards sold prior to the Possession Date or implement an equivalent program offered by Operator. 6,3.3 After the initial twelve {12) months of the Initial Term, Operator may simplify the green fees structure by eliminating certain categories and reducing certain green fees in establishing new promotional and Loyalty programs and shall not be required to continue offering the existing punch card program. 6.3.4 After the initial twelve (12} months of the Initial Term, Operator shall set the green fees charged, provided that any increase in green fees is subject to approval of the City Manager. 6.3.5 in addition to the green fees, Operator shall collect on behalf of the City and remit to the City on a monthly basis the one dollar and fifty cents ($1.50) per round capital improvement surcha~~ge imposed an the Golf Courses creating the capital improvement sinking fund for the Golf Courses (the "Capital Fund") as further described in Section 8 of this lease, The green fees listed an Exhibit C under subheading A (i~eekday Green Fees) and B {WeekendlHolidayGrcen Fees} include the dollar amount of the per round capital improvement surcharge in the amount of the stated fee. 6.3.6 Operator shall record all green fees collected u~ Operator's point of sale accounting system, and shall maintain at the i,eased Premises books of account with H:tLEG-DIR1Lisa1201U PaeklFaresight Lease Agi~eem~nt {Execution Copy 2 092I2Qta).rlocx 9 respect tv its management and operations of the Golf Courses in accordance with generally accepted accounting principles {"GAAP"). 6.3,7` Operator shall collect applicable sales taxes on the green fees (including the fees listed on Exhibit C} as required by State law. 6.4 Maintenance of Books and Records. A11 books and records shall be subject fio review by the City Manager fox compliance with GAAP. Operator shall maintain such books andrecards for a period offve (5) years fallowing tl~e expiration or sooner termination ofthis lease. 6.5 Audit. At City's option, City may cause, at any reasonable time, upon five (S) days prior written notice to Operator, a complete audit to be xnade of Operator's books of account with respect to its management and operations o f the Golf Courses. Such audit may be made by a Certified Public .Accountant or other qualified xepresentative selected by City. ~f any Operator reports afNet Cash Flow From Operations provided to City or any payments of rent are questioned and determined to be in error and the Net Cash Flaw Frorn Operations reported and resulting rental paid are three percent {3 °ro} yr more below the actual rent due and owing based on actual Net Cash Flow From Operations for the period reported by such report, then the reasonable expenses of such audit shall be paid by Operator in addition to the deficiency in rental payment,which sums shall be promptly paid to City. If Operator elects to dispute any such City audit, Operator may engage an independent Certified Public Accountant or other qualified representative selected by Operator tv a complete a second audit of Operator's books of account with respect to its management and operations of the Golf Courses. If Operator`s audit determines there is no error or that the error in calculation of the .Net Cash Flow From Operations reported and resulting rental paid is less than three percent (3°10~ below the actual rent due for tk~e period reported by such report, then upon either parties' written request, City and Operator shall negotiate in good faith to resolve such discrepancy and the costs of the audits by mutual agreement. 6.6 Financial Reports and Budget. Operator shall collect appropriate data and prepare the following financial reports of operations of the Golf Courses to be submitted to City Contract Administrator (the "Financial Reports"); {i) monthly Sales Reports; (ii) monthly Tee Sheets with itemized play record; (iii) monthly I3eposit Summary, Reconciliation and Gash brewer Reports; (iv} monthly Concession Reports; (v) monthly Flay Reports; (vi) monthly calculations ofthe Operations Reserve Fund; {vii} annual audited Balance Sheet, Statement . of Profit and Loss and Changes in Financial Condition for the operations of the Golf Courses prepared in accordance with GAAP; {viii all calculations of rent paid. Operator shall also provide to City such other financial reports as are reasonably available as requested by the Gvntract Administrator. Prior to the Possession Date, Operator shall develop a proposed H:IC.EG-D~R1L,isa1Z016 FarklForesight Lease Agreement {Execution Gaily 2 09212410}.docx 1Q ~~ ~a' operating budget for the operations of the Golf Course to be included as part ofExhibit B, ,~ ~ Set forth on as part of Exhfbit B shall be Operator's initial proposed operating budget for the Golf Courses, b.7 Starter liunction, Operator shall maintain the course starter function primarily from the Pro Shop at each Golf Course. The course starter function is responsible for scheduling tee time reservations and admitting golfers to cou~~se play. Scheduling oftee times shall be handled in each Pro Shop throug~t Operator's point of sale scheduling system and through online tee time reservation system, and Operator sha11 require all players to check in at the Pro Shop before play. The starter function shall include maintaining daily records and check receipts for green fees to insure that payment for play has been received. At such time as Operator determines the level of play requires additional player services, the tee time management and starter functions shall be a mobile function, coordinated with the Pro Shap, with a roaming starter moving from staging and first tee to practicing green and driving range, with cou~~tesy announcements of foursome starts and players on deck. The Operator sha11 hire, train and supervise all members of Operator's Pro Shap team members to perform the course starter function. The mobile starter function shall not engage in cash handling activities. Operator shall determine the operating hours to accommodate play and maximise revenues. fi.8 Operator's team menrrber staff shall be courteous, and provide satisfactory and eff cient management of the Golf Courses for benefit of the general public. At each Golf Course, Operator shall provide a minimum of the following personnel: {i} one Golf Course Manager or Director of Golf Operations, {ii} a Teaching Professional ar an Assistant Galf Professional to provide golfing lessons who may also serve and the Golf Course Manager or .Director of Golf Qperativns, and {iii} a Golf Course Maintenance Superintendent. 6,9 GolfCourse Manager or Director of GolfOperations. 'The Galf Course Manager or Diurectax of Golf Operations shall meet the following minimum qualifications {i} advanced .knowledge of golf course operations and management practices, with experience and knowledge of financial accounting of golf course operations, golf play management and marketing, golf course merchandise marketing, and golf practice facilities operations; {ii} a professional understanding of the rules and strategies of gold (iii) a high dagree of administrative and executive ability; {iv} excellent oral and written communication skills; and. (v} knowledge of current federal, state and local laws and regulations affecting the management of golf course operations. 6.20 Teaching Professional or Assistant Galf Professional. The Teaching Professional or Assistant shall meet ~e following minimum qualifications {i) advanced professional knowledge of mechanics ofthe golf swing and golf teaching techniques, with an H:Ii..EG-D1R1Lisa12010 ParklForesight Lease Ap,~-eetne~tt {Execution Gopy 2 09212410}.doCX 1 ~. advanced knowledge of golf swing dribs and alternate golfswing methods and practices; (ii) a professional understanding of the rules and strategies of golf, (iii) advanced knowledge of available golf equipment and accessories; {iv) excellent oral and written communication skills; (v) participation in continuing .education, and Zvi) maintain. PGA certification or possess ar equivalent knowledge and experience as PGA, certified pro. 6,11 Golf Course Maintenance Superintendent. The Golf Course Maintenance Superintendent shall meet the follow minimum qualif cations: ~i) advanced knowledge of agronomy and turf grass management practices, with a working knowledge of golf facility construction principles, practices and methods and a thorough understanding ofthe rules and strategies of golf; {ii) a high degree of administrative and executive ability; (iii) excellent oral and written communication skills; (iv) knowledge of current federal, state and local laws and regulations affecting the management of golf course operations; (v) participation in continuing education; and {vi) current state certification or licensing as a pesticide applicator. The Operator shall direct the Golf Course Maintenance Superintendent in the proper marking of the golf course for ground under repair, hazards, and out of bounds. 6.12 Staffing, Operator's staff operations and services shall include providing adequate staff ng to provide goods and services as set forth in this lease and promoting goodwill with the golf ng public by treating the public in a courteous manner and providing information, directions and review ofcust©n~ers concerns and issues. Operator shall provide a defbrillation machine and trained certified staff to use it. 6.13 Rules and Regulations. Operator shall enforce all rules, regulations, and policies governing use of the facilities. Rules anal regulations may be proposed by the Ope~ratar, but are subject to approval. by the City Manager, prior to implementation. The Operator shall likewise comply with City policies concerning violence in the workplace and controlled substance abuse. x.14 Course Play Directors. Operator shalt train and supervise volunteer course play directors, commonly referred to as course marshals, to provide marshaling services for the Golf Courses. Operator shall be responsible fox managing the course marshals and providing a car~ununication link between the marshals and Pro Shop starter function. The marshal's role is to promote compliance with golf course rules and regulations and efficient and timely play by the golfing public. Operator shall provide adequate service #o maintain the speed of play on the Golf Courses with goals for pace of play and start times, for an average 1 S-hole game, established by Operator subject to approval by the City Manager. The Operator shat! be responsible to ensure efficient and timely play. Operator shall act as the Rules Chairman far Corpus Christi Golf Course and shall make interpretations of D.S.G.A. rules for golf play. H:tLEG-DTR1Lisa12d10 i'arklForesighx ,ease Agreement (Execution Copy 2 Q9212Q1E}).~ocx 12 6.15 Recog~rized Associations. City shall provide to Operator a list of City recognized golfing clubs or associations. Operator shall provide support to such recognized clubs or associations utilizing the Golf Courses in the form oftournament services, league schedules, and space for meetings and bulletin board space for posting of such tournaments and league schedules at nv charge, subject to availability oftee times. Such support shall not include prime time usage of the Golf Courses for tournaments or free green fees. Additionally, students from the local school districts shall be allowed to use the practice facilities of andlor play the Gaff Courses for fi ee or at a discounted rate (but not including free golf cart usage} on school days, sa long as such' students are accompanied by and supervised by a school golf team coach. Additionally, Operator shall work with local school districts to schedule golf tournaments at both facilities. U1L sanctioned tournaments will normally be scheduled during weekdays and shall be charged regular junior play rates, Use of the facilities for U1L or CCiSD sponsored tournaments an weekends shall be Limited to the Executive Nine Hole Course at Gabe Lozano or non-peak hours of play on the 1 S hole courses. Operator may allow junior players playing with a paying adult to play free or at a discounted rate and a11vw junior participants in the "The First Tee" and "Kids on Course" programs to play at reduced junior rates, Also, Operator shall honor the previously existing golf course arrangements identified by the City Manager to Operator per written information describing such arrangements provided to Operator priox to the Effective Date. 6.16 Food and Beverage. Operator shall provide the food and alcohol service operations for the Golf Courses. Operator shall insure the snack bars are open daily during high use season and during off season with regular hours approved by the City Manager and posted on site at the Golf Courses. During the high use season, March through October, the snack bar minimum hours shall be 7.~OAM to 7:QOPM, with the off season hours determined by Operator subject to approval by the City Manager. Operator shall develop and establish a food and beverage theme and a menu of food items and beverages to be served in the snack bar facilities on the Leased Premises that are usual and customary for similar golf course operations and appropriate for the Golf Courses operating market. The snack bars shall be cleaned daily, with adequate trash and recycle receptacles available. Sales of beer, wine and mixed drinks at the clubhouses on the Leased Premises and on the Golf Course are permitted by the Concessionaire and Operator only. Operator is responsible for compliance with applicable laws and regulations with respect to the food and beverage service on the Leased Premises. 6.1'7 TABC Compliance. Operator shall comply with all permits issued under the Texas Alcoholic Beverage Code, the "Texas Alcoholic Beverage Code, and rules and regulations issued by the Texas Alcoholic Beverage Commission regarding alcohol services and sales at the Leased Premises. Operator shall employ, train and supervise personnel with appropriate qualif cations and experience appropriate for the duties to be performed with H:IY..EG-D1R1Lisa12U10 ParktF'oresight I.sass Agreement (Execution Cody 2 Q9212U14~.docx ~~ regard to alcohol services and sales. All such personnel shall be employees, agents or independent contractors of Operator, and not of City. Operator may subcontract with tk-ird parties for the actual management of alcohol sales but Operator shall remain obligated to City for all subcontracted management services, and in the event this Agreement is terminated, such subcontracts are likewise terminated. Operator shall provide City with copy of all subcontracts for alcohol services and sales within thirty days of execution. Operator shall timely collect and pay all taxes imposed on alcohol sales. d. l $ Fra Shop Inventory and Operations. As of the Possession Date, Operator has assumed from City the existing inventory of golf merchandise and gaff equipment located in the Pro Shops at each Golf Course based on the inventory valuation provided by City. During the Term in connection with Golf Course operations, Operator shall purchase and stock golf merchandise and golf equipment in the Pro Shops for sale to the public as determined by Operator. Operator shall insure the Pra Shop at each Golf Course is open daily with regular hours pasted conspicuously and adequately on site at each GolfCourse. Operator shall also provide golf equipment repair, rental of pull carts, golf carts and golf clubs far public use with the repair services and number of carts and clubs provided reasonable and customary in comparison with other public golf courses of similar size and use. d. l9 Financing Leases. Operator shall be responsible for assignment of existing leases and negotiation of equipment leases or purchase money financing, including specifically without limitation negotiation of new golf cart leases or financing arrangements and repayment or renegotiation of existing golf cart leases of financing arrangements. The City currently has outstanding teases through Banc afAmerica Leasing and Capital LLC far golf course equipment. Operator agrees to pursue assignment of the leases to Operator as the operator of the Golf Courses. fi.20 Transition of Golf Course Staff. ~lithin twenty {20} days ofthe Effective Date, City shall conduct a meeting to inform the City employees who are directly employed in the operations of the Golf Courses of the lease arrangement and operations of the Golf Courses by the Operator under this lease. Said meeting shall include the City's Human Resources Department and the Operator's Human Resources Representative(s). At this meeting City employees shall be provided information including, but not limited to: 1. Operator's Personnel Policies 2. Operator's Jab Descriptions 3. Operator's Salary Ranges per job description 4. Operator's Benefits Package S. City's "Reduction In Force" (RIF) policy. City employees shall 6e given a deadline of fourteen {14) calendar days after such meeting H:tLEG-DtRiLisal20]t3 ParktForesight Lease Agreement (Execution Copy 2 4~2l2U10).@ncx 14 outlined above to determine whether they choose to become Operator employees or be subject to the City's Reduction in Force policy, Based on the voluntary decision of each such City emplayee, the City shall identify to Operator those City employees who are willing to terminate their employment with the City and begin employment with Qperator for positions in operations of the Coif Courses (an "Identified Employee"). Operator shall offer employment to and employ each Identified Employee (who accepts such employment), with such employment to begin on the Possession Date, and pursuant to and in accordance with Operator's established employment criteria, compensation and benefits package through Operator`s customary ninety (90} day probationary period. Operator shall provide health insurance benefits to each Identified Employee who accepts employment beginning on date of emplayee hire with Operator, with no delay period: 6.21 Annual Review. Annually, representatives of Operator and the City Manager or City Manager's designee shall meet at the offices of the City or such other mutually acceptable location, to review the operations and performance of the Operator under this lease for the prior year (the "Annual Review"}. Each Annual Review shall include a review of (i} the financial performance of the Golf Courses for the prior year as evidenced by the Financial Reports and other financial information either party may elect to submit for review; iii) the operations of the Golf Courses including the Operating Expenses for calculation of Net Cash Flow From Operations, green fees, food and beverage operations, rules and regulations for the Golf Courses, goals for pace afplay and start times, turf conditions on the Golf Courses, weather related or seasonal related effects on such turf conditions, and the Performance Standards; {iii) Operator's performance under the Performance Standards and review of customer satisfaction surveys from patrons of the Golf Courses; (iv} any proposed capital improvement projects, and (v) any other information deemed material to operation of the Golf Courses. Section ?, Care of Lease Premises: ?.1 Maintenance and Repairs. Qperator shall maintain the Leased Premises in good clean condition. Operator shall be responsible for repairs and maintenance of the Leased Premises, with costs of such repairs and maintenance to be included as Operating Expenses of the Golf courses. Operator shall maintain the Golf Shap and driving range area in a clean, well~kept and orderly manner, ordinary wear and tear excepted, and shall provide such personnel, cleaning supplies, equipment, and consumable supplies as are necessary for this purpose. Operator shall cause public spaces to be vacuumed and cleaned daily. Vflindows and glass surfaces in the snack bars and all entry doors to be cleaned weekly during high season, March through October, and monthly or sooner as needed November through February. All other glass surfaces to be-cleaned monthly or sooner, if needed. Restroams to be cleaned prior to business each morning. During high season, March through October, restrooms to H:1LEG-DiRRil.isal2(110 ParlclForesight Lease Agreement {Execution Copy 2 0921201fl}.door 15 be cleaned and restocked inmid-afternoon. Carpet cleaning shall be completed a minimum of twice yearly. Operator shall be responsible for the repair and maintenance of light fixtures as needed. Operator shall be responsible for regular maintenance and cleaning, as well as reparrs and replacement, of all equipment at Leased Premises, including but not limited to, restaurant equipment. Operator shall be responsible for annual exterior cleaning afbuilding walls, doors and windows, and light fixtures. Operator may utilize the Operations Reserve Fund far Operating Expenses of the Golf Courses, including repairs and maintenance. ?.2 Advertising Signage on Leased Fremises. Operator shall not install additional signs or other advertising devices on the Leased Premises without City's prior written approval. The ea~pense of installation, operation or removal of all such signs sha11 be paid by apsrator as an expense of operations of the Golf Courses. Operator shall comply with applicable City ordinances related to signage. ?.3 Maintenance Operations. Operator shall be responsible for the upkeep and maintenance of the greens, fairways, sand traps and all other playing areas ofthe golf courses in accordance with the schedule of maintenance and standards set forth in the Performance Standards that shall be performed on a regular basis to assure we11 maintained turf conditions and golf courses are available far play by the general public. Any changes to the maintenance provisions of the Performance Standards shall be subject to the approval of the Contract Administrator. ?.4 Utilities. City shall provide to Operator at no charge effluent City water for purposes of irrigating the Golf Courses. City shall provide to Operator such City utility services as have been provided to the operations ofthe GolfCourses as of the Effective Date, including. potable water and rani#ary sewer. Uowever, if City ever begins to charge other City departments for potable water, sanitary sewer, or solid waste service, then Operator ,shall be similarly charged. Operator shall be charged for solid waste removal which is under contract with third party provider. Operator shall pay all such solid waste services and City and other non-City utility charges as Operating Expenses of the Golf Courses, including electricity, telephone, and security systems. Occupied public space in the clubhouse must be lighted'and adequately heated appropriate to a public building. Included in tla~e utility costs of operations shall be the cost of electricity to pump effluent water through the Golf Courses irrigation pumping system to irrigate the grounds of the Golf Courses ?.~ Naming of facilities on Leased Premises. Any naming of any facility on Leased Premises requires prior approval of the City CaunciL ?.6 Alterations or Improvements to Leased Fremises. Operator shall not remove any improvements, nor make at~y alternations or additions to the building improvements located H:ILEG-DIRiLisal2b I4 Paricl~'oresight Lease Agreamen~ (Execution Copy Z 492120I4).docx 15 on the Leased Premises, nor perform any construction at the Leased Premiss, without the prior written consent of the City Manager, and any such additions, changes and alterations made by Operator shall become and remain the property of City at the termination of this Tease, except to the extent that the City Manager agrees otherwise in the above required written consent. .Any additions, changes and alterations made by improvements or any construction at Leased Premises by Operator must be agreed to by the City and approved in advance in writing executed by the City Manager, and subjectto Dperator's compliance with banding requirements of Chapter 2253, Texas Government Code, as may be amended, and subject to compliance with insurance requirements of Risk Manager. 7.7 Surrender of Leased Premises. Operator acknowledges and understands that the City's agreement to lease the Leased Premises to Operator is expressly conditioned an the understanding that the Leased Premises must be surrendered, upon the expiration, termination, yr cancellation of the Term of this Lease, in as goad a condition as received, reasonable use and wear and tear, acts of God, fire and flood damage or destruction where such damage in not {]perator's fault. Section 8. Trade Fixtures and Ca ital Pro`ects: $.1 Installing Trade Fixtures. Operator shall be permitted to install Trade Fixtures on the Leased Premises, and all such Trade Fixtares owned by Operator and not permanently attached to the Leased Premises may be removed by Operator at the end of the Term, provided that any damage to the Leased Premises caused by such removal shall be repaired by and at the expense of Operator at or prior to the expiration of the Term. 8.2 Capital improvements. Prior to the Possession Date, the parties shall develop an Exhibit to be substituted herein as Exhibit. D. Set forth on Exhibit D shall be Operator's initial proposed capital improvement projects for the Golf Courses, including a description and budget far each such project. The City has and will continue to segregate and hold the Capital Fund and make such Capital Fund available to fund capital improvementprojects at the Golf Courses including those described on Exhibit D and future identified projects upon such terms and conditions as the Operator and City Manger shall mutually agree. To the extent Operator identifies other capital improvement projects during the term of this lease that could benefit the operations of the Golf Courses, Operator may notify the C©ntract Administrator of any such project and provide a description and budget for such project. No later than the next Annual Review, Operator and the City Manager shall review such proposed capital project, the related expenditures required to complete the project and the capital expenditure responsibility, if any, of each party. To the extent mutually agreed by the parties an in accordance with such agreement, the City will fund capital improvement H.1LEG D1R~~,isa120~0 ParklEoresight Lease Agreement (Bxecutian Capy 2 0922010}.docx 17 projects out ofthe Capital Fund, and Operator may proceed with such capital improvement projects. Section 9. Insurance: 9,1 Insurance Coverage. During the Term, Operator shall maintain a policy or policies of insurance providing for the following insurance coverage: (i) broad commercial general liability insurance providing personal injury and property damage liability coverage with respect to the Leased Premises and the business conducted thereon, (ii} physical damage coverage For golf carts and course maintenance equipment, (iii) business automobile liability---owned,. non-owned and rented, (iv) alcoholic beverage liability in the amount of one million dollars ($1,000,040.00} covering the event ar time period when alcoholic beverages are to be served, (v} crime and fidelity coverage, (vi) workers compensation and (vii} employer`s liability all in accordance with the provisions described an Exhibit E, attached hereto and incorporated by reference. Such insurance policy or policies shall name Operator as named insured and City as additional insured for auto and general liability coverage. For worker's compensation and employer's liability, Operator shall provide a waiver of subrogation in favor of the City. Prior to any addition or alteration to any building or real estate improvements located on the Leased Premises, Operator shall obtain prior Clearance in writing, from the Risk Manager that the proposed addition or alteration will not necessitate a change or modification in the existing insurance coverage maintained by ©perator or City, This clearance is in addition to the prior consent required by Section 7.6 of this lease. 9.2 Form of Policies. The foregoing policies of insurance shall be in farm and written by insurers be issued by insurance companies reasonably acceptable to the Risk Manager for the City (the "Risk Manager"} which acceptance shall not be unreasonably withheld, and shad meet the requirements of Exhibit E. The Risk Manager shall be furnished two (2} copies of certificates of such insurance policies for the benefit of the City prior to the Possession Date. The certificate of insurance shall provide that the City shall have thirty (34} days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this lease, Upon written request of the City Manager, Operator shall provide copies of all required insurance policies to the Risk Manager. City and Operator acknowledge that aver the Term it is probable that there will be changes in the • insurance industry or the conunercial real estate industry, Accordingly, City and Operator agree that if, during the Term, if the amount of insurance customarily maintained for golf course businesses similar to those then conducted from the Leased Premises increases, then the Risk Manager retains the right at the Annual Review to modify the amount and types of insurance maintained by Operator, and to require increased coverage limits, as commercially reasonable and as necessary in the interest of public health, safety, or welfare, and to H.tE.EGDIR1Lisa12010 Park1>toresight Lease Agt~ement (Execution Copy 2 U92I2Q14}.docx 18 decrease the required coverage, if so warranted. In the event of any necessary increase, City must provide Operator no less than sixty (60) days written notice to obtain the increased coverage prior to the effective date of the requirement. 9,3 City Insurance. Di.~ring the Term, City shall secure and cause to be maintained in effect, as part of and included with the City's blanket coverage of City real property ixnprovernents, a policy or policies of property insurance covering the real property improvements and fixtures of the Leased Premises in the amounts and types identified on Exhibit F, sub,~ect to applicable deductibles. The City Risk Manager reserves the xight to review and modify the amounts and types of insurance maintained by the City (but not terminate insurance}, and provide Operator with updated Exhibit F, Section lU. Indemnification: In consideration of allowing Operator to occupy the Leased Premises, Operator ("Indemnitor") shall fully indemnify, defend, save and hold harmless the City, its officers, agents, representatives, and employees {collectively, "lndemnitees';) from and against any and all fiability, lass, damages, claims, demands, salts, and causes of action of any nature whatsoever asserted against or recovered from City an account of injury yr damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, ar property foss or damage of any other kind whatsoever, to the extent any injury, damage, ar loss maybe incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly ar in part; ~i} Operator's performance under this Lease; {ii) Operator's occupancy of the Leased Premises anal any and ail act#vities associated with the Operator`s use of the teased Prerrfises under this Lease; (iii) the violation by Operators its officers, employees, agents, contractors, subcontractors or representatives of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to fhis Lease; Div} the exercise of rights under this Lease; or (v} an act or omission on the part of Operator, its officers, employees, agents, confractors, subcontractors or representatives pertaining to this Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act, or omission is caused or is claimed to be causeal by the contributing ar cancttrrent negligence of -ndemnitees, or any of them, but not if caused by the sale negligence of lndemnitees, H:ILEG~D7RILrsal2Qtfl ParktForesight Tease Agreement{Execution Copy 2 09212410).docx 19 crr any of Them, unmixed with the fault of any other person or entity, and including all expenses of litigatian, court costs, and at~rneys' fees, which arise, or are claimed to arise, out of or irr connection with the asserted or recovered incident. Dperafvr covenants and agrees that, if any of the lndemnitees is made a party #a any litigaf%n against Operator or in any litigation commenced by any party, other than C)perator relafing to this Lease, Qperafor shall, open receipt of reasonabfe notice regard'ingr cv~nmencement of litigation, at ifs awn expense, investigafe al! claims and demands, a#fend to their settlement or other dispasitivn, defend any of the lndernnitees in all actions based (hereon with legal counsel satisfactory to the Cify Attorney, and pay ali charges of attorneys and all other -costs and expenses of any kind whatsoever arising fror~r any the liability, injury, damage, lass, demand, claim, or action. Section 11. Assignment and Subl: 11.1 Assignment by Operator. Neither party may assign this Agreement without the prior written approval of tlZe other party. City Council approval is required f©r the assignment of the lease by Operator. Any such approved assignment shall nofi relieve Operator or Operator's authorized assignees from liability under this lease. 11.2 Subleases, Operator shall not sublease all or any part of the Leased. Premises without prior written approval of the City 11~Ianager. 11.3 Mortgages, Operator shall not mortgage, encumber or pledge the leasehold interest under this lease without prior written approval of the City Manager. Operator may not incur debts or obligations on the credit of the City. 11.4 Approvals by City. The approve! by City or the City Manager ofany ofthe acts specified in this section shad not be unreasonably withheld and sha11 not relieve Operator or Operator"s authorized assignee, transferee or subtenant from liability under this Lease. Section l2. repairs and Operator improvements: 12.1 Repairs in Ordinary Course. As mentioned in Section 7, Operator shall be responsible for repairs and maintenance ofthe Leased Premises, with costs of such repairs to be included as Operating Expenses of the Golf Courses, However, subject to appropriation H.IL11G DlltlLisat2010 Parkll `nresfght Lease Agreement {Execution Copy 2 OYZ 12010).dacx 20 of funds, in the case of ordinary wear and tear to improvements, City may choose to make general repairs and replacement, at its expense, any damage to the buildings and other real property ia:~provernents and fixtures (other than those caused by the Operator, agent ox employee}. X2.2 Operator Caused repairs. All costs ofrepairs and replacements with respectto the buildings attributable to the negligence of Operator, his agents or employees shall be borne by Operator and not included as Operating expenses of the Golf Courses far purposes of calculating the Net Cash Flow From Operations Capital improvements or additions to buildings by Operator must be approved in advance by the City Manager, and subject to Operator's compliance with banding requirements of Chapter 2253, Texas Government Code, as may be amended, and subject to compliance with insurance requirements of Risk Manager. Ownership thereof shall revert to the City upon termination of this lease, Section 13. Destruction of Leased Premises: 13.1 Casualty Losses. if a building or other improvements of Leased Premises are damaged by fire, windstorm, flooding, hurricane, or other casualty during the Term, Operator shall give prompt notice thereafto City, and unless Operator elects to terminate this lease in such notice- as a result of such casualty loss, City may reconstruct and repair the Leased Premises to at least substantially the same condition as existed prior to such casualty with reasonable due diligence, subject to appropriation of funds far such purpose by the City Council or receipt of applicable insurance payments, City shad use, and Operator shall provide, consulting services to City in connection with any such reconstruction and repair to the Leased Premises. Operator shall be relieved of the obligation to pay rent during the period Leased Premises are not in use by Operator due to such destruction of Leased Premises. 13.2 No Repairs. In the event City elects not to complete such reconstruction and repair of such damage caused by casualty described in Section 13.1, or fails to complete the reconstruction and repair with reasonable due diligence, either party shall have the right to terminate this lease pursuant to this section. If City has received insurance proceeds for the full and replacement value of the building or other improvement for reconstruction and repair of such damage caused by such a casualty and elects not to complete such reconstruction and repair, then a termination as a result of City's election or failure to reconstruct or repair shall be deemed a termination without cause by the City as described in Section 3.4, Also, any such termination shall be effective as of the date upon which such damage or destruction H:1LEG-DIR1Lisa12f110 Par~IFaresight Lease Agreement (Execution Cody 2 (}42I2010}.docx 21 occurred if business. has not been conducted in the damaged improvement on the Leased Premises after such date. Section I4. To~a1 or Partial Gondernnation: 14.1 Termination Upon Condemnation. In the event the Leased Premises shall be taken by condemnation or the right of eminent domain or conveyed by City under threat of condemnation, then this lease shall terminate as of the date of such taking or conveyance and the rent shall be apportioned and determined. as of the date of such termination, I4.2 Partial Condemnation. If a portion of the Leased Premises shall be taken by condemnation or right of eminent domain or conveyed by City under the threat of condemnation sn as to render the balance of the Leased Premises unsuitable for the use of Operator, either party to this lease shall be entitled to terminate this lease by gi~ring written notice ofsuch election within thirty (3Q) days after Operator has been deprived ofpossession, ffthis Tease is so terminated, then the rent shall be apportioned and determined as ofthe date of such termination. 14.3 Condemnation Awards. If any part of the Leased Premises is so taken or condemned, City shall be entitled to receive and retain ail stuns awarded for the taking of all ur any portion of the Leased Premises by condemnation or right of eminent domain or conveyance by City under threat of condemnation, and Operator shall not be entitled to share in such award. Operator shall be entitled to receive and retain, and City shall not be entitled to, any portion of the award made to Operator by court of competent jurisdiction for loss of Operator`s leasehold improvements whose costs were not shared by the City. Sectinn i S. Oneratar or City Default: 1 S.I Operator Default. Any of the following events shall be an event of default by Operator under this lease: (i) if Operator shall fail to pay any installment of the Rent or other sum of money due under this lease when due; (ii) if Operator shall abandon or vacate the Leased Premises; (iii) if Operator shall fail to comply with any term, provision, obligation ar covenant of this Iease (and shall not cure or correct such failure within fourteen (14) days after written notice of such failure from City to Operator); or (iv} if any proceedings shall be commenced to declare Operator a bankrupt ar an insolvent, reduce or modify its debts or obligations or to delay the payment thereof, or if any assignment of its property be made for the benefit of creditors, or if a receiver or trustee be appointed for it or its property or business, then, to the extent permitted by applicable law, City may treat the occurrence of any one or more of the foregoing events as an event of default by Operator. H;1L~G-DiRI[.isal20lU Parkl~oresight ,ease Agreement {Execution Copy 2 ()9212Q1{~).docx 22 15.2 Termination Upon Default. If any event of default by Operator shall have occurred, City shall have the right, without further notice or demand of any kind to Operator or any other party, to terminate this lease and repossess the Leased Premises and shall be entitled to recover as damages a sum ofmaney equal to the fatal of (i}the reasonable cost of recovering the Leased Premises, and (ii) the unpaid Rena and other sums due at the rate herein provided, and to pursue any other rights or remedies provided herein ar at law or in equity. 15.3 Gity Default. In the event Gity defaults under any provision of this lease, Operator agrees to give City written notice of such default and thirty (30} days to cure such default prior to pursuing remedies against City. However, non appropriation of funds for any purpose shall oat be deemed to be an event of City default with respect to any payment ar expenditure obligation of the City. if any event of default by City shall have occurred and oat been. cured in such time frame, Operator shall have the right, without further notice or demand of any kind to City or any other party, to terminate this lease. Upon such a termination due to City's default, Operator shall be entitled to pursue any other rights or remedies provided herein or at lave or in equity. Section 16. Force Majeure: . Neither City or Qperator shall be liable for delays ar failures in performance due to an event of f©rce majeure that is beyond such party's reasonable control including, without limitation, any delays or failures in performance caused by strikes, lack outs, free, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The delays or failures to perform extend the period of performance until these exigencies have been removed. The Operator shall inform the City in writing of an event of force majeure within five (S}business days or otherwise waive this right as a defense. Section i7. Relationshi of Parties: This Lease establishes a landlardltenant relationship, and no other relationship. This Lease must be construed conclusively in favor of that relationship. In performing this Lease, both the City and Operator shall act in an individual capacity as independent contractors, and not as agents, representatives, employees, employers, partners, ar associates of one another. The employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party for any purpose. Section 1 S. Mechanic's Lien: H:tLEGyD1R1L.isa12t110 Pa~kll=oresigl~t Lease A~t'ee~rtent {,execution Copy 2 09212010j.docx 23 Operator shall. not permit any mechanic's, matexial~man's or similar liens to remain upon the Leased Premises for labor or mater~ai furnished tQ Operator or claimed to have been furnished to Operator in connection with work of any character performed or claimed to have been perform ed on the Leased Premises or at the direction. of or with the consent of Operator. Section 19. Cites ~.ig_ht of Acc_ ess to and Use of f~.e, Leased Premises for Utility ar Other Construction Work: Operator acknowledges that there are City utility lines located on or under the Leased Premises. City reserves the right to excavate at the Leased Premises as necessary to repair, replace or maintain such utility lines. Additionally, operator acknowledges that City may occasionally undertake additional u#ility or other construction projects which may require City or its contractor to have access to, on, in, above, across, through or under the Leased Premises, City reserves the right to access and constrict upon the Leased Premises for City utility ar construction project when deemed necessary by the City lillanager. In connection with any such access, excavation yr construction, City and Operator will cooperate in good faith in planning the timing, location and extent of such activities so as to minimize, to the extent reasonably possible, the adverse effect of such activities on the operations of the Golf Courses. City is not responsible tQ Operator for any damages or loss of revenues which nay occur during City construction or utility work an Leased Premises. Section 20. Miseellaneaus: 20..1 Utility Charges. All utilities serving the Leased Premises shall be paid by Operator prior to delinquency. . 20.2 Successors. All rights and liabilities herein given ar imposed upon the respective parties shall extend to and bind the respective successors and assigns of such parties. 20.3 Right of Inspection by City. City, acting through any authorized employee of the City, shall have the right to enter upon the Leased Premises at all reasonable hours for the purpose of inspecting the Leased Premises. Such entrance by City shall never be deemed ar held to be an ejection or disposition of Operator, and City shall incur no liability by reason thereof. Operator shall provide the Contract Administrator with keys to the Leased Premises, and a current list of names and phone numbers, for use by the Contract Administrator, in the event of an emergency at the Leased Premises. The Contract Administrator or his authorized designee has the right to enter the Leased Premises during the regular hours of normal operation or at any time in the event of an emergency. H:ILEG-DIRV..isal2Qif! Parkl~oresight i.ease Ag~~ee~nent (Lxecutian Copy2 0921201Q~.docx 24 ZQ.4 Publication Costs. Operator shall pay for the cost of publishing the lease description and related ordinance, as required by the City's Charter, in the legal section of the local newspaper. 20.5 Construction of Lease and Venue. In the event any provision of this lease sha11 be held to be invalid or unenforceable, such holding shall not be deemed to affect the validity and enforceability of the remainder of this lease, or of the same provision as applied to other persons or circumstances. This lease shall be construed with the express intention of the parties to it that it sha11 be valid and enforceable in every respect to the extent permitted by law. By agreement of the parties, any ambiguities in the Lease shall not be construed against the drafter. This Lease is only for the benefit of the City, the Indemnitees and Operator, and no third party has any rights or claims under this Lease or against the City. This lease shall be interpreted according to the Texas laws which govern the interpretation of contracts, and venue lies in Nueces County, Texas, where this lease was entered into and shall be performed 20.b Notice and Contract Adminishrator. Any notice, request, demand, ox other communication which, under the terms of this lease or under any statute or other law, must or may be given or made by the parties to this lease, sha11 be in writing, shall be directed to the contract administrator designated below an behalf of the City, and to the Chief Operating Officer on behalf of the Operator. Such notices shall be sent by hand delivery, established overnight courier service or United States mail, registered or certif ed mail, postage prepaid, return receipt requested, to the following address of the party to receive notice or such other addresses as may hereafter be designated in writing from time to time by the parties hereto in the manner provided in this paragraph. Any such notice shall be deemed received when actually received as evidenced by written receipt or three days ai~er deposit with the United States mail in accordance with this paragraph. The contract administrator for the City sha11 be the City Director of Forks and Recreation. The contract administrator for the Operator sha11 be the Operator's Chief Operating Officer, and Operator reserves the right by written notice to the City to designate Operator's Regional Manager as the contract administrator, Notice to the City shall be sent to: City of Corpus Christi Attn: Director ofParks and Recreation 1201 Leopard Street carpus Christi, Texas 7801 With copy to: City of Corpus Christi Attn: city Attorney 1201 Leopard Street H:1I,EG-DIRILisa12410 ParklForesight Lease Agreement (Execution Copy 2 {f9212(310).docx 25 Corpus Christi., Texas, 78401. With copy to: City of Corpus Christi Attn: City Manager 1201 Leopard Street Carpus Christi, Texas, 75401. l+l-otice to the Uueratar sha11 be sent #o: Foresight Corpus Christi Golf, L.L.C. Attn: Chief Operating Officer S 12 E. Blanco Road, Suite 100 Boerne, Texas 78006 20.7 Waiver. Na provision ofthis Agreement may be waived orally. The waiver by either party to this lease ofany breach of or default under any provision of this lease shall not be deemed to be a waiver of such provision or of any rights as to any subsequent breach or default thereof. The subsequent acceptance of any rental or scans hereunder by City from Operator shall not be deemed to be a waiver of any preceding breach by Operator of any provision .ofthis lease (other than the failure of Operator to pay the particular rental or sum - so accepted). The partial performance of any of City's covenants sha11 not be deemed to be a waiver of any preceding breach ox default by City of any provision of this lease. No _ provision ofthis lease shall be deemed to have been waived by any party hereto unless such waiver is in writing and signed by the party charged with such waiver. 20.8 Amendments. No subsequent alteration, amendment, change, deletion, or addition to this Tease shall be binding upon City or Operator unless in writing and signed by both city and operator. 20.9 Compliance with laws. Operator must comply with all applicable laws, regulations, and ordinances of the City, State and Federal governments. 20.10 Contract documents. The fully executed Lease Agreement, the Request for Proposal far Golf Course Management Service (BI-0060-10) (the "Request for Proposal"), as amended, and the Operator's proposal sha11 constitute the contract documents and are incorporated herein by reference. In case of a conflict in any of the terms of the contract d©cuments, first precedence shall be given to the fu11y executed Lease Agreement; second precedence shall be given to the Request for Proposal, and third precedence shall be given to the Operator's proposal. H.lLEG-I3IRILisal2tllE} t~arkl~oresight Lease Agreement (~xeaution Co~ay 2 49212t?i0).docx 26 20.11 Fiscal Funding. City's payment obligations under this Lease are subject to City's annual budget process. Notwithstanding anything to the contrary herein, The City`s obligation to make any payment ar expenditure under this Agreement is expressly contingent upon the availability of City funding far each payment item and obligation of the City contained herein. Operator sha11 have no right of action against the City as regards this Agreement, in the event that the City is unable to fulfill its payment obligations under this Agreement as a result of the lack of sufficient funding. Section 21. Acknowledgement: The parties expressly agree that they have each independently read and understood this lease. By Operator's execution of this lease, Operator acknowledges and understands that this lease is not binding on the City until properly authorized by the Council and executed by the City Manager or by his designee. SIGNATURE DATE: ~ ,~~ 20 i0, but effective as of the Effective Date and Possession Date as described above. OPERATOR: FORESIGHT CORPUS CHRISTI GOLF, L.L.C., By: Danie A. Pedrotti, Jr. President THE STATE OF TEXAS ~ COUNTY OF NUECES § This instxument was acknowledged before me on ~ en1 ~ ~3 2010, by Daniel A. Pedrotti, 3r, as President of Foresight Corpus Christi Goff, L.L.C., on behalf of such company. .~ No ry Pub zc, State of Texas H:ILEfir-DIR1I.isa1241 U ParklForesight Lease Agreement (Execution Cagy 2 49212410).docx ~~ CITY OT C(3RPU5 CHRIS'ti ATTEST: r n Armando Chaps gel R. Escobar City Secretary City Manager THE STATE OF TEAS § COUNTY OF NUECES § This instrument was acknowledged before me on the ~ay of ~ Q ~ 20 X 4, by 1~ngei R. Escobar, City Manager, £or the City O£ Corpus Christi, a Texas municipal corporation, on behalf o£the corporation. ~~t*11Y ~VB "`"~~~",,, .iEANNIE HOLLAND `~° `°? Notary Public, State of Texas N'vtal!y Public State O£Texas s;~~*~ N1Y Commission Expires ' _`' `'-%; 3111;. December 23, 2013 APPROVED AS TO FORM: This ~~ day of September, 2410. BY: ~r Lisa Aquila , sistarlt City Attorney For the Ct Attorney ~~o~ !4IlIHU~lLID qtr Co~~c~t.,~~ ~~ s~c~~x~~ q~ . y H:lI~~-DTRILisa12U1Q f'arktForesight i.ease Agreement (Execution C©py 2 i392t2QiQ).docx 28 1xhibit A Description of Leased Premises Oso Beach Golf Course, S60i South Alameda Street, Corpus Christi., Texas 78412, with description of 150.1 ~ acres out of portion of Sections 14, l 6 and l 7, Flour Bluff & Encinal Farm & Garden 'Tracts, as recorded in Nueces County Property Records, Volume No. 284, Pages SS- S8, and Volume N"a. 299, Pages 75-79. Gabe Lozano Sr. Golf Course, 4401 (old Brownsville Road, Corpus Christi, Texas, 784t1S, as described in I~ueces County Map Records Volurn~e 26 Page 93, with legal description of Cliff Maus Tracts A a~ad B, fi~rthu~r described as being a 222.34 acre tract out ofBlock 1$, J.C. Russell Farm Blocks and out of Lots 1.,2,3, and 4, Gugenheim and Cahn Farm Lots, Corpus Christi, Nueces County, Texas. O=0S0 GOLF COURSE =GABE LOZANO GOLF COURSE LAND BUILDINGS Club House Metal Buildings Terminal Buildings Golf Cart Charging Facifity U Steel Building -Golf Carts O Roof repairs O flea lVlaintenanc~ Building O Oso Ftestroom Improvements Restroom improvements Lozano GC Clubhouse Roo# Replace O Oso GC Clubhouse Re-roof © Garage and Storage Building C3 Club House and Pro Shop O Reroo# Pro's House and Po Shop Adjustmen# for rounding .r~F iiMPROVEMENTS Irrigation System kI:1LEG-DIRII..isa12010 Pa-klForesight Lease Agreement {Bxecution Copy 2 09212010}.doox ''"'x 29 Landscaping Fence Parking Lot Driving Range Lighting Improv. Other Than Bldgs. Architectural/Engineering Golf course fairway renovation Cart path improvements O Gart path improvements O Irrigation System Alrconditioning Unit 92-93:Cart path improvements Old Brownsville outfall Fencing (96-97} Septic System Gabe Lozano Cathodic Protection O Cathodic Protection O Cart path service road improve. FY99-Od Gabe Lozano Electrical Upgrade O 1956-Bfi Unidentified improvements 'O Parking Lot O Outside Vllater Pump Facility O installation of Fence O Chainlink Fence O Trees (185} O Ixora Shrubs (25} E) Plants (48) O Various Trees (3F} O Oleanders (80+$6.35 undetermined} Q Various Tees O Oleanders ('2Q} O Various Trees, bushes and plants O Installation of Sanitary Sewer Lateral Line O Palm Trees (45} Q Various Trees, bushes and plants O Pump System far Irrigation System O 1-3 Post Fuse Disconnect Switch for inside Use O Sprinkler System O Sprinkler System Architectural Services O Sprinkler System-CPL Installation and Secondary . O Replacement of Vliater Line Servicing Club House & irrig Syst O Flags and Flag Poles O Cart Paths ~. O San Trap Improvements-Lard and Applegate H:t~EG-DX[tlLisal2Qli3 ParkiFaresight .ease Agreetnetri (Execution Copy 2 0921243©).docx 30 O Aerial Photography-Espey, Huston and Assaciates O Landscape Architectural Planning -- Bechtokl Hoffpaur Golf Caurse Irrigation Improvements Proj #3206 O Goif Course Irrigation Improvements Proj #3268 Adjustment for rounding MACHINERY & EQUIPMENT Office Furniture & Equipment Sprinkler Equipment Fuel Storage Tanks Golf Ball Retriever Ball Washers Master Batl Washes Golf Ball Washer Greens Aerator 91-92. Used 7ft. concrete pathpaver Energy Management System O Energy Management System Osborne trailer O Odessa Pump Gould 14-vertical turbine 100 O Odessa Pump Gould ~-vertical turbine 10Q FY98-99 Tee Time Management System O FY98-99 Tee Time Management System FY00-01 Network Catalyst O FYQO-01 Netuvork Catalyst © Office Furniture O Spreaders, Sprayers & Sprinkters O Shop Equipment O Water Coolers ~4} O Aerifiers (2) O Greensaire Aerifier-Watson Distr O 515 Gallon Steel Tank Freemens Station Mat O Water Coaler-A~ax Supply O Electric Water Cooler-Southern Plumbing O Electric Water Cooler-WESCO O Electronic Cash Register-Patterson, Inc. O 3 Electric Water Coolers+Freight-Graybar Electric O (2j '#2,000 BTU Air Conditioners-Coolidge-Lacher O Equip & Labor far Gas Pump-CC Pump Service O 60" Rotary Mower-Turf & irrigation O Install New 550 Ga11on Tank GC Pump O Electric Drinking Fountain O Electric Water Cooler-Stud Plmb H:1L,EG-D1R~,isa12Q10 Aarkl~aresight Luse ,agreement {1?xecution Capy 2 0921201(3).docx 31 O 2 Ryan Vertical Mowers-Itllatson O Eieetronia Cash Register-Braswell Q .5 Galion Water Cooler Ajax Supply 4 12,000 lb Trailer-Made in House Q '100 Galion Sprayer-($500 retained for handgun)-Goldwaites zimmerer Kubota Tractor L3430HST-F 29HP Turf Tiger SN-A6509193 (Vehicle wlfla# bed) O 29HP Turf Tiger SN-A6501183 (Vehicle wlfiat bed) 55 Golf Carts - FY08 -- Ez Go Q 55 Golf Carts - FY08 ~- Ez Go 15 Golf Carts - FY08 -- Ez Go Q 15 Golf Carts - FY08 - Ez Go Green Terra Spike G6163" g953TG 997 Z-Trak (mowers) SN - DM997SC023576 4 D953TC 997 ~-Trak (mowers) SN - DM997SC023579 Green Mower, SN TC2506G02g032 Fairway Mower SN-TC3225C040405 Trim and Surronds Mower SN-TC2fi53T020151 Utility Tractor 4WD SN-PY5203U006953 Q Green Mower SN-TC25gBG020034 C) Fairway Mower SN-TC3225C040400 Q Trim and Surronds Mower SN-TC2fi53T020074 1800 Turbo Series fl Comm. liVide (mower} SN-TC16flOT060770 1400TC PraGator 2020A; cargo loader/haul SN-TC2420AT020525 HD30q Sprayer; chemical loader trk; SN-TC300GX020g37 Ultra greeds roller. Turf smoother SN T2586 410 2 valve man htd wlpp SN-41027408 lTT Fl©wfr©nea~ model 19 CLC-B; 850 GPM at 273 PSf H.V.,EG-DIRlLisa12UI0 ParlclEoresight Lease Agreement (Execution Copy 2 4R2I20Ifl).docx 3Z Exhibit B Performance Standards _. ~~~ Maintenance Standards: These maintenance standards shall serrre as a guideline for maintenance of the golf courses, Each item identified, quantified and or qualified herein, is based upon our maintenance standards in place at our other Texas golf courses. GREENS Mow a minimum of six times per week during the active growing season. in the winter, mow as needed to manage limited growth. Putting speed to be maintained a# a reading, which will provide a fair and consistent putting surface for all golfers. Mowing heights in general to be bench set between 0.125" and 0.145". Heights may be temporarily adjusted during the aerification healing process and over-seeding process. Light verticutting andlor grooming will be performed as required to reduce grain and manage thatch buildup on greens. Light and frequent topdressings will be applied to smooth the putting surface and control thatch buildup. Fertilization and other chemical applications will be employed to maintain healthy turf. Pin placements will be rotated daily throughout the active growing season. Aerifica#ion will be performed at feast once per year and will be timed to gain maximum agronomic benefits. H:ILEGDIR1Lisa12(110 ~ark~oresight Lease A~•eement {Execution Dopy 2 0921241©).dacx 33 Irrigation program wilt consist o€ deep and infrequent watering with supplemental hand watering when necessary. COLLARS l111ow three times per week during the active growing season. Mowing height 0.4" to 0.75"~. APPl~t]ACHES Mow three times per week during the active growing season. Mowing height 0.4" to 0.75". Aerification will be performed once per year. Spiking will be performed as needed Irrigation program will be similar to greens. Topdressings will be applied as needed throughout the season. I=ertilization and other chemical applications will be similar to greens. TEES Mow three times per week during the active growing season. Mowing .height 0.4" to 0.75" Aerification will be perl'orrned at least once per year. Tee markers will be rotated daily throughout the active growing season. H:tC.EG~DYR1~.isal2t310 ParklForesight .ease Agraennertt (Execution Copy 2 (392120 (Q).docx 34 Topdressings and divot filling will be applied as needed throughout the season. Light vertical mowing will be performed throughout the season. Fertilization and other chemical applications will be employed to maintain healthy turf. Irrigation program will consist of deep and infrequent watering with supplemental hand watering when necessary. FAIR~IIAYS Allow a minimum of three times per week during the active growing season. Mowing height Q.4" to 01.75" Fertilization and other chemical applications will be employed to maintain healthy turf. Irrigation pr©gram will consist of deep and infreauentwatering with supplemental hand watering when necessary, CART PATHS Concrete paths will be edged regularly to provide a defined edge and clean appearance. ~ G-ravel paths will be graded when needed. R Mow two times per week during the active growing season. Mowing height at 1" to 9.5" H:iLEG D~R1Lisa1201Q Farkl~aresight Lease Agreem~e~t (Execution Copy 2 09212f31a].docx 35 Fertilization applications wiil be employed to maintain healthy turf. Irrigation evil! be performed to ensure an adequate supply of moisture for turfgrass growth. SignageF pain# lines, and other barriers will be used where necessary to control cart traffic. Aerification and or spiking will be performed as needed during the active grov~ring season. BUNKERS baked daily Depth of sand will be checked and maintained on a regular basis. ~?epths: Maintain adequate and appropriate leveis of sand in the sand bunkers. Weeds and rocks will be removed as needed on a daily basis. Tree root removal prodded as needed. Bunker edges will be mowed weekly. Bunker edges will be edged as needed to maintain a dean bunker line. Bunker rakes will be placed inside the bunkers in an accessible location. They will be checked an a regular basis and maintained in goad condi#ion. PRACTICE AREAS Driving Range fairway will be mowed two to three times per week during the active growing season. H:1C,~G-I]iRtLisa1~~10 ParklFaresight .ease Agreemern (Execation Copy 2 032IZUl(}).dt~Cx 36 Driving Range tee will be mowed three times per week during the active growing season at fairway height. 111laintenance of worn areas on the practice tee will be performed weekly to repair areas in use the previous week. Driving Range tee set-up will be moved daily. Chipping and Putting areas will be maintained similar to golf course. Fertilization and other chemical applications will be employed to maintain healthy turf. Irrigation program will consist of deep and infrequent watering with supplemental hand watering when necessary, GL111ERAL DUTIES Entry Road wil[ be maintained and policed regularly far trash. Parking Lot will be maintained and checked regularly fvr debris and trash. Landscaping shall be weeded and kept in good repair Staging areas for golf will be blown vff as needed to maintain a good appearance. Bathrooms on the golf course will be cleaned every day. Financial Performance Standards: `The Dixectox of Parks and Recreation and Operator will set out financial pertoormance goals and objectives prior to the Possession Date fox the initial year of the Agreement, and at each Annual tt.eview thereafter. These standards will be based in part on the performance over the prior twelve { 12} month period and in paxt based on the plans, including the marketing plans such as direct mail advertising and other advertising techniques, outreach pxajects such as establishing golf leagues, and other special projects at the Leased Premises such as increased tee areas, enlarged greens or improved drainage, for the coming twelve {12} months. The basis for comparison will be the budget for the Operating Expenses of the Golf Courses for the tvcfelve (12} month period ending with the Annual Review and the budget for the coming twelve (12~ months. As stated in Section H:iLEG-DIR1Lisa12010 ParklForesight Lease Agcesment (Execution Copy 2 a9212U I0).d©cx 37 b.b, prior to Possession Date, Operator shall develop and prepare a proposed operating budget for operations of the Golf Courses far the initial twelve (12} month period following the Possession Date, which budget will be attached as part of this Exhibit $. At each Annual Review, Operator will propose and explain such a proposed budget for the coming twelve (12} months, and the Director of Parks and Recreation will collaborate with Operator in establishing the final budget for the coming twelve (12) months. Customer Satisfaction Standards: Customer satisfaction will be assessed at least annually at the Annual Review. Operator will employ customer satisfaction assessment foals with respect to the operations of the Golf Courses such as written customer surveys obtained during or immediately follow play on the Golf Courses, electronic customer surveys with incentives tv complete and return the survey and verbal customer surveys conducted by Operator team members immediately following play on the Colf Courses. The assessment tools may vary through the Term as the relationship between Operator, City and the golf constituency matures. All parties to this Agreement agree that customer satisfaction is paramount to the operations vfthe Golf Courses as provided for in this lease. It is further agreed that customer satisfaction is a dynamic and challenging factor to assess precisely and consistently. Therefore, the Director of Parks and Recreation and Operator will review. at each Annual Review the assessment toots and other techniques employed by Operator throughout the Term of this Agreement. The results of the cost©mer satisfaction assessments will be documented and to the extent agreed by Operator and the Director of Parks and Recreation the operations of the Golf Courses will be adjusted to optimize customer satisfaction. H;1t.EG-D1RtLisa120ifl Parkli+oresight Lease ~greetnant (Execution GopY 2 09212flffl).dacx 38 Exhibit C ScheduXe of Green Fees' A. Weekday Green Fees 18 hales $ 17.25 18 hales midafternoon (after 10:00 a.m.} $ 14.25 Twilight {starts after ~ :00 p.m.} $ 11.25 '! 8 holes Senior (over age BO) $ 12.50 18 holes Junior (age 18 and under) $ 8.00 Executive 9 $ 8.75 Executive 78 (twice around Executive 8) $ 12.75 Executive 9 Junior (age 98 and under} $ 5.00 Executive 18 Junior (age 18 and under} $ 6.00 Marshal {off peak} $ 1.Op B. WeekendlHoiidayGrem Fees . 18 hales $ 19.75 • 18 holes mid-afternoon (after 10:00 a.m.) $ 16.75 • Twilight (starts after 1:00 p.m,) $ 13,75 18 holes Junior {age 18 and under} $ 5.00 C. Discount monthly punch cards for Weekday Golf (12 green fees for price of 10 green fees -residents only} 9 8 holes $ 172.50 Twilight (starts after 1:OD p.m.) $ 192.50 18 hales Senior (over age 60} $ 125.00 Q. Junior Monthly Card _ (residents only) $ 55.00 Weekdays ail day (weekends after 10:00 a.m,) Regular Manthiy Card - (residents only} $ 140.00 Weekdays all day {weekends after 10:00 a.rn.} Senior Manthiy Card - (residents only) 1Neelcdays all day (weekends after 10:00 a.m.} E. Golf cart rental rates Non-Player Cart $ 15.75 9 holes Haff Cart $ $.50 18 holes (Half Cart) $ 12.40 18 hales {full cart) $ 22.75 Marshal (Uff Peak) $ 1.00 F. Range balls -small $ 4.00 Range balls -~ large $ 5,25 Range balls ~-Jumbo $ 8,50 H:II.EC-I]Iltli,isa124i 0 k'arklForesigt~t Lease Agreement {~e.~ution Copy 2 09212010).doex 39 Range balls -Marshal $ 1,00 G. Pull cart rentals - 9 holes $ 1.50 Pull cart rentals -18 holes ~ $ 3.00 H. Golf set rentals -- 9 holes $ 6.50 Golf set rentals -~ 18 holes $ 10.00 1. Youth golf camps $ 50.80 J. Identification card for advance tee time access $ 5.00 K. Goff Promotional Programs The Park and Recreation Department is authorized to .conduct golf marketing promotions, at various times during the year, at both municipal courses. Gust recovery will not exceed 40°l0 of the cost of youth programs, with regard to the golf marks#ing promotions, other than as applied to the Latchkey program i_. Golf Items A and S (Green fees} include a $4,54 Capital Projects Surcharge (surcharge) for 18 holes ("18 Hole," Mid-afternoon, Twilight, and Executive 18) and a $1.QE}surcharge for Juniors anct-Seniors. A surcharge of $.75 is included for non- Juniors for 9 holes on the Executive course and $.50 #or Juniors. Golf Item C includes a $7 5.00 surcharge for the regulation 1$ and Twilight, a $10.00 surcharge for seniors, a $7.50 surcharge for the Executive 9, and a $15.00 surcharge for the Executive 19. Golf Item D includes a $14.40 surcharge. Calf Items C and D are available to golfers living in Corpus Christi city limits with driver's license verification. Golf items E, F, G, H, and J include all applicable sales taxes. Operator shall also collect applicable sales taxes on the fees lis~;d in this Exhibit C. H:1LEG-DIRlLisa120 LO ParktFaresight Lease Ageee~nent (Execueion ~4py 2 Q921201Q).docx ~k 0 Exlllbit D Capital Im_pr©vement Projects Annually, the City of Corpus Christi adopts a Capital Budget and Capital Improvements Planning Guide. The purpose ofthe Capital Improvement Program ~CIP) is to identify, prioritize, and construct projects that are needed to enhance or maintain the quality of life expected by the citizens of Corpus Christi. Project priorities and project funding are constantly znonitored throughout the fiscal year to ensure there is adequate funding for critical projects and all voter-approved projects are completed in a timely manner. As stated in Section 8.2, prior to Possession Date, the parties shall agree to a replacement Exhibit D which identifies the initial proposed capital improvement programs for the Golf Courses, including a description and budget for each such project. H:Ii.EG-DIR1I..isai201 o ParklForesight Lease Agreement (Bxecution Capy 2 X9212010}.docx "-'~ 41 ATTACHMENT INSURANCE REQUIREMENTS L GOLF COURSE OPERATOR'S LIABILITY INSURANCE A. Golf Course Operator shall not commence work under this agreement until all insurance required herein has been obtained and approved by the City's Risk Manager or designee. Goif Course Operator must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been so obtained. R. Golf Course Operator shall furnish to the Risk Manager ar designee two f2) copies of ~`°~~ Certificates of lrasurance, showing the following minimum coverage by an insurance company(s) acceptable to the Risk Manager or designee. The City must be named as an additional insured fQr the General Liability policy, and a blanket waiver of subrogation in favor of the City is required on ail applicable policies. 'TYPE ©F INSURANCE MINIMUM INSURANCE COVERAGE 3U daywritten notice of aancellatian, non- Bodily Injury and Property Damage renewal, material change or termination Per occurrence /aggregate required on all certificates and policies BROAD C4MMfrRCIAL GENERAL LIABILITY $1,0(~(1,0a0 CQMBINE©SINGLE LIMIT including: 'I. Broad Form 2. Premises -Operations 3. Praductsl Gampleted Operations 4. Contractual Liability 5. Brand Form Property Damage 6. Independent Contractors 7. Herbicide, Pesticide & Fertiliser application ~ storage including pool cl~emica! coverage 8.. Removal of employee vs. employee exclusion BUSINESS AUTOMOBILE LIABILITY -- OWNEQ, $50(1,4~Q0 COMBINE© SINGE.E LiMlT NON-OWNED cr RENTE© GOLF GOIIRSE PROPERTY COVERAGE to If applicable include: 1. Tee to green coverage 2. Club Maintenance equipment and Goif Carts ACTUAL CASH VALUE Propertyr Insurance Golf Course Operator will be responsible for any and al{ damage to equipment used regardless if owned, rented, leased or i,arrowed . !f a liable H:1C.,~G-Q1R1L.isa1201U ParklForesight Lease Agreement (Gxecutian Cagy 2 ©92I20tQ).docx ~~ CRIME AND 1=ID!*LITY COVERAGE $25,000 WORKERS' COMPENSATION to include Vi1HICH COMPLIES W1Thl TI"fE TEXAS WORKERS' Alternate Employer endorsement COMPENSATION ACT AND SECTION II OF TH15 EXHIBIT EMPLOYERS' LIABILITY $100,0001 $500,0001$100,OOo C. In the event of accidents of any kind, Golf Course Operator shall furnish the Risk Manager with copies of all reports of such accidents within ten (10} days of the accident. I(. ADDITIONAL RE UIREMENTS A. Golf Course Operator must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written an a policy and with endorsements approved by the Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. F3. Golf.Course Operator's financial integrity is of interest tv the City; therefore, subject to Golf Course Operators right to maintain reasonable deductibles in such amounts as are approved by the City, Galf Course Operator shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Golf Course Operator's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no less than A- (1lll}. C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and a!I endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies}. Golf Course Operator shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance tv City at the address provided below within 10 days of the requested change, Golf Course Operator shall pay any casts incurred resulting from said changes. All notices under this Article shall be given to City at fhe following address: City of Corpus Christi Attn: Risk Management H:1LEG-DiRlLisat2fl10 ParklForesight Lease Agreement €Execution Grapy 2 a9212p1Q).d©cx 43 P.U. Box 9277 Corpus Christi, TX 78469-8277 (361) 826-4555- Fax # D. Golf Course Operator agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf vf, the named insured performed under contrast with the City, with the exception of the workers' compensation and professions( liability polices; • Provide for an endorsement that the "a#her insurance" clause shall not apply to the City of Corpus Christi where the Gity is an additional insured shown on the policy; • Vlfarkers' compensation and employers' liability policies will provide a waiuer of subrogation in favor of the Gity; and • Provide thirty t30) calendar days advance written notice directly to Ci#y of any suspension, cancellation, non-renewal or material change in coverage, and not less than ten ~1oJ calendar days advance written notice for nonpayment of premium, E, Vllithin five {5) calendar days of a suspension, canceNation, or non-renewal of coverage, Golf Course Operator shall provide a replacement Certificate of Insurance and applicable endorsements to Gity. City shall have the option to suspend Golf Course Qperator's performance should there be a lapse in coverage a# any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this contract. • F. In addition to any other remedies the City may have upon Goif Course Operator's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Golf Course Operator to stop work hereunder, andfor withhold any payment(s) which • ' became due to Galf Course Uperatar hereunder until Golf Course Operator demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Successful Bidder may be held responsible for payments of damages to persons ar property resulting from Golf Course Operator's or its subcontractors' performance of the work covered under this agreement. H. It 'rs agreed that Golf Course Operator's insurance shall be deemed primary and H:1LEG-~3TR1I.isa120~f} ParklForesight Lease Agreement (Execution Copy 2 492~ZOlfl).docx 44 non-contributory with respect to any insurance or self insurance carried by the City of Corpus Christi far liability arising out of operations under this contract. 1. It is understood and agreed that the insurance required is in addition to and _ ~ ~ . separafe from any other obligation contained in this contract. 20tp Calf Course f_ease ggreemenf insurance raqulremenfs 9-27-t0 ep #tisk Mgmt. 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