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HomeMy WebLinkAboutCity of Tamarac Resolution R-2022-064 Colony West Golf Course Renovation of Championship Course Tee Boxes and BunkerTemp. Reso. #13786 May 9, 2022 Page 1 of 3 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2022 - C* If A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE EXPENDITURE OF FUNDS NOT TO EXCEED $720,000 FROM THE COLONY WEST GOLF COURSE NET CASH FLOW TO RENOVATE THE CHAMPIONSHIP COURSE TEE BOXES AND BUNKER PER THE AGREEMENT BETWEEN THE CITY AND INDIGO PARTNERS; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Florida Statutes provide that municipalities shall have the governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal service, and exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, Article IV, Section 4.07 of the City Charter of the City of Tamarac ("City) empowers the City to adopt, amend or repeal such ordinances and resolutions as may be required for the proper governing of the City ; and WHEREAS, the City of Tamarac is a vibrant community, that wishes to provide exceptional recreational opportunities for its residents and visitors; and WHEREAS, the City purchased the Colony West Golf Course in December 2011, as a means of preserving green space and providing recreational opportunities for its residents and visitors; and 134646988.1 Temp. Reso. #13786 May 9, 2022 Page 2 of 3 WHEREAS, on October 24, 2013, the City approved an agreementwith Billy Casper Golf, LLC, now doing business as Indigo Golf Partners, to manage, maintain and operate the golf course, and the amenities available in the clubhouse, via Resolution R2013-115, attached as Exhibit 1" ("Agreement"), and WHEREAS, on June 27, 2018, the City approved amendment #1 extending the Agreement for five (5) additional years via Resolution R2018-72, attached as Exhibit "2"; and WHEREAS, the Agreement provides that the City is financially responsible for all capital improvements to the Colony West Golf Course; and WHEREAS, the Colony West Championship Course is receiving extensive usage with 31,801 rounds of golf through the first six (6) months of this year equating to more than 5,300 rounds per month; and WHEREAS, this level of usage creates wear and tear on the conditions of the tee boxes and bunkers resulting in a reduced golfer experience; and WHEREAS, golf industry standards recommends that tee boxes and bunkers should be renovated every ten (10) years; and WHEREAS, renovations to the tee boxes and bunkers on the championship course have not taken place during the eleven (11) years the City has owned the course; and WHEREAS, Indigo Golf Partners has an established purchasing procedure that requires it to secure competitive price quotes utilizing uniform specifications for the renovations to the tee boxes and bunkers on the championship course ("Project"); and 134646988.1 Temp. Reso. #13786 May 9, 2022 Page 3 of 3 WHEREAS, the estimated cost of the Project is $660,000 with a project contingency of $60,000; and WHEREAS, the funding for the Project is available from the Colony West Golf Course net cash flow generated by the golf course operations; and WHEREAS, the Director of Parks and Recreation and Director of Financial Services recommend authorizing the expenditure not to exceed $720,000 from cash funds generated from golf course operations; and WHEREAS, the City Commission of the City of Tamarac, deems it to be in the best interests of the business owners, residents, and visitors of the City of Tamarac to authorize the expenditure of funds not to exceed $720,000 for the renovation of the tee boxes and bunkers NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THAT: Section 1: The foregoing recitals are true and correct and hereby adopted as the legislative and administrative findings of the City Commission; all exhibits attached hereto are incorporated herein and made a specific part of this Resolution. Section 2: The City Commission authorizes the expenditure of funds not to exceed $720,000 from cash held generated from golf course operations for the renovations of the tee boxes and bunkers on the Championship Course. Indigo Golf Partners will utilize its established competitive purchasing procedures before selecting a company to construct the Project. 134646988.1 Temp. Reso. #13786 May 9, 2022 Page 4 of 3 Section 3: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 4: If any clause, section, other part, or application of this Resolution is held by any count of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Section 5: This Resolution shall become effective immediately upon adoption. PASSED, ADOPTED AND APPROVED this 8t" day of June, 2022. ATTEST: E KIMBERL DILLON ACTING CITY CLERK At4A:z� MIC ELLE J. GOMEZ MAYOR RECORD OF COMMISSION VOTE: MAYOR GOMEZ DIST 1: COMM. BOLTON DIST 2: V/M GELIN 3o DIST 3: COMM. VILLALOBOS DIST 4: COMM. PLACKO 1J66 APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE USE AND RELIANCG OF THE CITY QF TAMARAC ONLY. MAIRWEkq W1 • - 134646988.1 Temp. Res.# 13786 Temp. Reso. #13129 June 11, 2018 Page 1 of 5 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2018_7c A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING AGREEMENT AMENDMENT #1 TO THE AGREEMENT WITH BILLY CASPER GOLF, LLC FOR GOLF COURSE OPERATIONS SERVICES FOR THE COLONY WEST COUNTRY CLUB DATED OCTOBER 24, 2013; EXERCISING THE FIVE (5) YEAR OPTION TO RENEW IN ACCORDANCE WITH THE RENEWAL PROVISIONS CONTAINED IN THE AGREEMENT; AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AGREEMENT AMENDMENT #1 TO THE AGREEMENT FOR MANAGEMENT AND MAINTENANCE OF THE GOLF COURSE AND THE AMENITIES AVAILABLE IN THE CLUBHOUSE INCLUDING FOODSERVICE AND PRO - SHOP OPERATIONS FOR A PERIOD OF FIVE (5) YEARS, FOR THE EFFECTIVE PERIOD OF OCTOBER 24, 2018 THROUGH OCTOBER 23, 2023 PROVIDING FOR CONFLICTS, PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Tamarac is a Vibrant Community, that wishes to provide exceptional recreational opportunities for its residents and visitors; and WHEREAS, the City of Tamarac purchased the Colony West Golf Course in December 2011, as a means of preserving green space for its residents; and WHEREAS, on October 24, 2013, The City Commission of the City of Tamarac approved an Agreement to operate the Colony West Country Club with Billy Casper Golf, LLC to maintain the operations of the course, and the amenities available in the Colony West Clubhouse, including foodservice and pro -shop operations pursuant to the formal solicitation of Request for Proposal #13-25R, via Resolution # R2013-115, a copy of which is on file with the City Clerk; and WHEREAS, the original Agreement with Billy Casper Golf, LLC provided for a Temp. Reso# 13786 Temp. Reso. #13129 June 11, 2018 Page 2 of 5 five (5) year renewal option if mutually agreeable to the City and Billy Casper Golf, LLC, subject to successful operation of the Colony West property; and WHEREAS, Billy Casper Golf, LLC has provided for the successful operation of the Colony West Golf property, and the City and Billy Casper Golf, LLC are agreeable to exercising the five (5) year renewal option, and WHEREAS, the City Commission of the City of Tamarac desires to maintain the Colony West property as a fully -functional golf course with full clubhouse amenities; and WHEREAS, Agreement Amendment #1 provides for the exercising of the five (5) year renewal option of the Agreement with Billy Casper Golf, LLC for Golf Course Operations including the management and operation of the course and the clubhouse services in order to maintain the club as a fully operational venue, a copy of such Agreement Amendment is included herein as Exhibit I "; and WHEREAS, the Director of Financial Services and the Purchasing and Contracts Manager recommend that the City of Tamarac City Commission approve Agreement Amendment #1 and authorize the appropriate city officials to execute the Agreement amendment to manage and maintain the Golf Course and the amenities in the Clubhouse, including foodservice and pro -shop operations for a period of five (5) years with Billy Casper Golf, LLC.; and WHEREAS, the City Commission of the City of Tamarac deems it to be in the best interest of the citizens and residents of the City of Tamarac to approve Agreement Amendment #1 and authorize the appropriate city officials to execute the Agreement amendment to manage and maintain the Golf Course and the amenities in the Clubhouse, including foodservice and pro -shop operations for a period of five (5) years with Billy Casper Golf, LLC. Temp.Reso# 13786 Temp. Reso. #13129 June 11, 2018 Page 3 of 5 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THAT: SECTION 1: The foregoing "WHEREAS' clauses are HEREBY ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof and all exhibits referenced and attached hereto are incorporated herein and made a specific part of this resolution. SECTION 2: The City Commission approves Agreement Amendment #1, and authorizes the appropriate city officials to execute the Agreement amendment to manage and maintain the Golf Course and the amenities in the Clubhouse, including foodservice and pro -shop operations for a period of five (5) years with Billy Casper Golf, LLC. SECTION 3: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. SECTION 5: This Resolution shall become effective immediately upon its passage and adoption. The remainder of this page is intentionally left blank Temp.Reso# 13786 Temp. Reso. #13129 June 11, 2018 Page 4 of 5 PASSED, ADOPTED AND APPROVED this day of 2018. IV HARRY DRESSLER MAYOR ATTEST: PATRICIA TELTIF-E--1 i CITY CLERK RECORD OF COMMISSION VOTE: MAYOR DRESSLER DIST 1: COMM. BOLTON DIST 2: V/M GOMEZ DIST 3: COMM. FISHMAN DIST 4: COMM. PLACKO I HEREBY CERTIFY THAT I HAVE APPROVED THIS RESOLUTION AS TO FORM CITY ATTORNEY lk txniou Z Temp.Reso# 13786 arrlarac Prrcnaslog and Contrwts Divis,ot, AGREEMENT AMENDMENT #1 BETWEEN THE CITY OF TAMARAC AND BILLY CASPER GOLF, LLC The CITY OF TAMARAC (City) and Billy Casper Golf, LLC., Hereinafter referred to as (BCG), a Virginia limited liability company duly registered as a Florida Foreign Limited Liability Company with principal offices located at 12700 Sunrise Valley Drive, Suite 300, Reston, Virginia 20191 (the "Contractor"), agree to amend the original Agreement for Citywide Janitorial Services as follows: 1. Pursuant to the terms of Section 2, "TERM OF AGREEMENT' of the original Agreement dated October 24, 2013, the City and Billy Casper Golf, LLC (BCG) agree to exercise the five (5) year renewal option for the period effective October 24, 2018 through October 23, 2023. 2. Please delete the current language shown in Section 15. "CONFIDENTIALITY & PUBLIC RECORDS", Paragraph D "Public Records" and replace with the following amended language: D. Public Records: The City of Tamarac is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, BCG shall: 1. Keep and maintain public records required by the City in order to perform the service; 2. Upon request from the City's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. 3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if BCG does not transfer the records to the City. 4. Upon completion of the contract, transfer, at no cost to the City, all public records in possession of BCG, or keep and maintain public records required by the City to perform the service. If BCG transfers all public records to the City upon completion of the contract, BCG shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If BCG keeps and maintains public records upon completion of the contract, BCG shall meet all applicable requirements for retaining public records. All records stored electronically must be provided 't b G ,_ r /r.^i Vaoa p, rn enf 5-pee,yie of q,,�?!..`N1�', 411A1 ' DA/1r'V� 4. r-moa z Temp.Reso# 13786 City of Tamarac Purchasing and Contracts Division to the City, upon request from the City's custodian of public records in a format that is compatible with the information technology systems of the City. 5. During the term of the contract, BCG shall maintain all books, reports and records in accordance with generally accepted accounting practices and standards for records directly related to this contract. The form of al/ records and reports shall be subject to the approval of the City's Auditor. BCG agrees to make available to the City's Auditor, during normal business hours and in Broward, Dade or Palm Beach Counties, all books of account, reports and records relating to this contract. 3. Please Add Section 15. "CONFIDENTIALITY & PUBLIC RECORDS" Paragraph E to be titled "Public Records Custodian" E. Public Records Custodian. IF BCG HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO BCG'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY CLERK 7525 NW 88TH AVENUE ROOM 101 TAMARAC, FL 33321 (954) 597-3505 CI TYCLERK@TAMARA C. ORG 4. Please Add to Section 16. "GENERAL PROVISIONS", new Paragraph V, titled "Scrutinized Companies F.S. 287.135 and 215.473. V. Scrutinized Companies -- 287.135 and 215.473 By execution of this Agreement, BCG certifies that BCG is not participating in a boycott of Israel. BCG further certifies that BCG is not on the Scrutinized Companies that Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List, and not on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has BCG been engaged in business operations in Syria. Subject to limited exceptions provided in state law, the City will not contract for the provision of goods or services with any scrutinized company referred to above. Submitting a false certification shall be deemed a material breach of contract. The City shall provide notice, in writing, to BCG of the City's determination concerning the false certification. BCG shall have five (5) days from receipt of notice to refute the false certification allegation. If such false certification 13 5L-? — "oiony West Doti Co nj iex NI�,7ager„ent Ayreernen 4GREEME,�1 _111F_NDME�,T #' F-AMUIl L Temp.Reso# 13786 Purchasing and Contracts Div+sror, - --- - -- -- - ---- - -- ----- ---- - - - --_--- - - --- ------------ - is discovered during the active contract term, BCG shall have ninety (90) days following receipt of the notice to respond in writing and demonstrate that the determination of false certification was made in error. If BCG does not demonstrate that the City's determination of false certification was made in error then the City shall have the right to terminate the contract and seek civil remedies pursuant to Section 287.135, Florida Statutes, as amended from time to time. 5. Other provisions of the original agreement remain in effect as written. Remainder of Page Intentionally Blank 43Pic: `:,VENT 4ME. ,_,VENA #? Temp.Reso# 13786 City of Tamarac ------------- ----- - --- ----- IN WITNESS WHEREOF, the parties Amendment to Agreement on the respective Tamarac signing through its City Manager as Billy Casper Golf, LLC (BCG) signing by and authorized to execute same. Purchasing and Contracts Division, hereby have made and executed this dates under each signature, the City of authorized by the City Commission, and through its , duly CIT TAM `�Q'. w •Oj O:. c� v } _ �chae`l C. ernech, City anager � CO Co ' 4. Date \ 0 Patricia A. Teufel, CM City Clerk Approv d as to form and legal sufficiency: Date Ll vll'�Ihu6l S. Goren, City Attorney lZDate ATTEST: Billy Casper Golf (BCG) Company Name Signature I Type/Print Name Title 6-ap-lf (CORPORATE SEAL) Date ,/Or 'If 2 ! 3-258 - Co ar)y ✓tees, -�wf Comolet Vanagernent Agreement - AGP E;MEti AMENDMENT # I . A CAMUIL L Temp.Reso# 13786 -3,,MWal Pua;.11<�JJ( CORPORATE ACKNOWLEDGEMENT STATE OFyC-7� N1 :SS COUNTY OF FAa¢-F-N:? I HEREBY CERTIFY that on this day, before me, an Officer duly authorized in the State afnrepid and in the Cou ty aforesaiAES106"v take acknowledgments, personally appeared ���lo�C£ (Name) r (Title) of Billy Casper Golf, LLC, a Virginia Limited Liability Company, duly registered as a Florida Foreign Limited Liability Company, to me known to be the person(s) described in and who executed the foregoing instrument and acknowledged before me that he/she executed the same. WITNESS my hand and official seal this day of 12019 Signature of o ary Public State of Viat Large Print, Type or Stamp Name of Notary Public 1�9' Personally known to me or ❑ Produced Identification Type of I.D. Produced ❑ DID take an oath, or ❑ DID NOT take an oath. Tamp. Re 913786 Temp. Reso. 12412 October 9, 2013 Page 1 of 5 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2013_—/ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING THE AWARD FOR RFP NO. 13-25R TO BILLY CASPER GOLF, LLC FOR GOLF COURSE OPERATIONS SERVICES FOR THE COLONY WEST COUNTRY CLUB; AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN AGREEMENT FOR MANAGEMENT AND MAINTENANCE OF THE GOLF COURSE AND THE AMENITIES AVAILABLE IN THE CLUBHOUSE INCLUDING FOODSERVICE AND PRO -SHOP OPERATIONS FOR A PERIOD OF FIVE (5) YEARS, WITH AN OPTION TO RENEW FOR AN ADDITIONAL FIVE (5) YEARS, PROVIDING FOR CONFLICTS, PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Tamarac is a Vibrant Community, that wishes to provide exceptional recreational opportunities for its residents and visitors; and WHEREAS, the City of Tamarac purchased the Colony West Golf Course in December 2011, as a means of preserving green space for its residents; and WHEREAS, on December 20, 2011, The City Commission of the City of Tamarac approved an Agreement to lease and operate the Colony West Country Club with Sand Trap Management Inc., in an effort to maintain the operations of the course, and the amenities available in the Colony West Clubhouse, including foodservice and pro -shop operations via Resolution # R2011-144, a copy of which is on file with the City Clerk; and F, Temp. Reso413786 Temp. Reso. 12412 October 9, 2013 Page 2 of 5 WHEREAS, in August, 2013, Sand Trap Management abandoned the lease with the City, and discontinued operations of the Colony West Golf Course; and WHEREAS, the City Commission of the City of Tamarac desires to maintain the Colony West property as a fully -functional golf course with full clubhouse amenities; and WHEREAS, Request for Proposal #13-25R for Golf Course Operations Services was issued advertised on September 18, 2013, with the purpose of finding a firm to either lease, manage and operate the course and the clubhouse services, or to simply manage and operate the course and the clubhouse services in order to maintain the club as a fully operational venue, a copy of such Request for Proposal is included i herein as Exhibit "1 "; and WHEREAS, on October 1, 2013, the City received and opened seven (7) submittals, and an Evaluation Committee, comprised of the Director of Financial Services, the Director of Public Services, the Director or Human Resources and the Purchasing and Contracts Manager, reviewed and evaluated the submittals which included the following firms Applied Golf Billy Casper Golf, LLC First Tee Management Green Golf Partners Hwy Guidant Management Group, LLC E,hbil1 Temp. R_ #16166 Temp. Reso. 12412 October 9, 2013 Page 3 of 5 Hampton Golf, Inc. Kemper Sports Management, Inc.: and WHEREAS, the proposals from First Tee Management, Green Golf Partners and Guidant Management Group, LLC were determined to be non -responsive due to failure to meet the minimum qualifications and/or failure to follow the instructions included in RFP 13-25R; and WHEREAS, the Evaluation Committee evaluated the remaining submittals for RFP 13-25R and subsequently developed a short-list of three (3) firms for further consideration that included the following firms Billy Casper Golf, LLC Hampton Golf, Inc. Kemper Sports Management, Inc.; and WHEREAS the Evaluation Committee ranked the short-listed submittals from first to third; and WHEREAS, based upon the Evaluation Scores the first ranked firm was Kemper Sports Management, Inc.; and WHEREAS, staff initiated contract negotiations with Kemper Sports Management, Inc. and Exhibit 1 I—P. Re #13166 Temp. Reso. 12412 October 9, 2013 Page 4 of 5 WHEREAS, City staff was unable to reach an Agreement with Kemper Sports Management, Inc. because the firm would not agree to certain mandatory requirements of the City as delineated in Request for Proposal Document 13-25R; and WHEREAS, Kemper Sports Management, Inc. withdrew their firm from negotiations; and WHEREAS, the Evaluation Committee originally ranked Billy Casper Golf, LLC as the second ranked proposal, a copy of their response and the Evaluation Committee scoring is included herein as Exhibit "2" and Exhibit "3" respectively; and WHEREAS City staff initiated successful contract negotiations with Billy Casper Golf, LLC; and WHEREAS, the Director of Financial Services and the Purchasing and Contracts Manager recommend that the City of Tamarac City Commission award RFP 13-25R to, and authorize the appropriate city officials to execute an Agreement attached hereto as Exhibit "4", to manage and maintain the Golf Course and the amenities in the Clubhouse, including foodservice and pro -shop operations for a period of five (5) years with one (1) option to renew for an additional five (5) year period with Billy Casper Golf, LLC.; and WHEREAS, the City Commission of the City of Tamarac deems it to be in the best interest of the citizens and residents of the City of Tamarac to award RFP 13-25R 1k Tamp. fte #13186 Temp. Reso. 12412 October 9, 2013 Page 5 of 5 to, and authorize the appropriate city officials to execute an Agreement to manage and maintain the Golf Course and the amenities in the Clubhouse, including foodservice and pro -shop operations for a period of five (5) years with one (1) option to renew for an additional five (5) year period with Billy Casper Golf, LLC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THAT: SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. All Exhibits attached hereto are incorporated herein and made a specific part of this resolution. SECTION 2: The City Commission authorizes the appropriate City Officials to award RFP No. 13-25R to, and authorize the appropriate city officials to execute an Agreement to manage and maintain the Golf Course and the amenities in the Clubhouse, including foodservice and pro -shop operations for a period of five (5) years with one (1) option to renew for an additional five (5) year period with Billy Casper Golf, LLC attached hereto as Exhibit "4". SECTION 3: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Temp. Rasa #13'!66 Temp. Reso. 12412 October 9, 2013 Page 6 of 5 SECTION 4: If any clause, section, other part or application of this Resolution is held by any count of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. SECTION 5: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this . day of r1 2013. ATTEST: PATRICIA TEUFEE, C CITY CLERK RECORD OF COMMISSION VOTE: MAYOR TALABISCO 6ezU DIST 1: COMM. BUSHNELL DIST 2: COMM. GOMEZ 146*1 DIST 3: COMM. GLASSER 7. DIST 4: V/M DRESSLER I HEREBY CERTIFY THAT I HAVE APPROVED THIS RESOLUTION AS TO FORM yjL�$s 4MES. GOREN CITY ATTORNEY h 0,t 1 Temp. R_ #13786 COLONY WEST GOLF COMPLEX MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT ("Agreement") is made as of this -)- day of e " , 2013 by and between BILLY CASPER GOLF, LLC ("BCG"), a Virginia limited liability company, having an address at 8300 Boone Boulevard, Suite 350, Vienna, VA 22182 and the City of Tamarac ("City"), a Municipal Corporation of the State of Florida, having an address at 7525 NW 88"' Avenue, Tamarac, Florida 33321. WHEREAS, City owns certain real property commonly known as Colony West Golf Complex (CWGC), currently an 18-hole golf course and an 18-hole executive golf course, clubhouse, and other amenities located in Tamarac, Florida (the "Club"); and WHEREAS, City recognizes the benefit of engaging a third party management company to manage the affairs of the Club; and WHEREAS, BCG is in the business of managing golf courses and clubs; and WHEREAS, City desires to utilize the services and experience of BCG in connection with the management and operation of the Club, and BCG desires to render such services, upon the terms and conditions set forth in this Agreement; and WHEREAS, BCG intends to form a wholly -owned single -purpose subsidiary entity registered to do business in the state of Florida and the City of Tamarac, Colony West Golf Management, LLC, ("CWGM") for the purpose of performing some or all of the services outlined herein; and WHEREAS, nothing in this Agreement shall be construed or interpreted to mean that BCG and CWGM are alter egos of each other; and WHEREAS, the parties hereto acknowledge and agree that the formation and performance of CWGM shall not relieve BCG or City from any of their respective duties, obligations, and responsibilities set forth herein; NOW, THEREFORE, in consideration of the covenants and agreements of the parties contained herein it is mutually agreed to as follows: 1. DEFINITIONS. The following terms, as used in this Agreement, shall have the following meaning, unless otherwise set out in this Agreement. A. Annual Budget and Program: Documents presented by BCG for the operation of the Club to the City as part of the City's annual budget process, including but not limited to the following: Annual Business Plan and Operating Budget, Agronomic Plan and Marketing Plan. B. BCG: Billy Casper Golf, LLC. a Virginia Limited Liability Company. C. City/City: The City of Tamarac, a Florida municipal corporation. The City of Tamarac owns the Colony West Golf Course and is lessee, operator and agent for the Colony West Golf Course Golf Course. D. "Colony West Golf Complex": CWGC, alternatively referred to as "the Club". E. "CWGM". Colony West Golf Management, LLC, a wholly -owned subsidiary of Billy Casper Golf, LLC to perform some or all of the services at CWGC Temp. Reso k13�66 F. Days. The term "days" shall be defined to refer to calendar days unless expressly stated otherwise. G. Fiscal Year: October 1st- September 30th. H. General Manager: The term "General Manager" shall mean a person responsible for the overall day-to-day management of Club operations at the CWGC. I. Golf Course: Colony West Golf Complex owned by the City and commonly known as Colony West, which includes the clubhouse(s), an 18 hole golf course and an 18 hole executive golf course, and other amenities. J. Golf Course Superintendent. The term "Golf Course Superintendent" shall mean a member in good standing of the Golf Course Superintendent's Association of America (GCSAA) and the Golf Course Superintendent's qualifications shall meet or exceed the standards of the GCSAA Class "A" certification. K. Golf Professional. The term "Golf Professional" shall mean a person certified as a Professional Golf Association (PGA) Class A Professional. L. Gross Revenue: All revenues and income of any nature derived directly or indirectly from the Club or from the use or operation thereof, including green fees, gross sales proceeds from the sale of green fees, memberships or annual passes to the Club, monthly dues from annual pass holders of the Club, rental fees for golf carts, golf clubs and other rental items, net lesson fees, food and beverage revenues (including mandatory service charges, revenue generated from space rentals and from meetings, banquets, parties, receptions, tournaments and other group gatherings) merchandise sales, and the proceeds paid for any business interruption, use, occupancy or similar insurance policy claim. Excluded from "Gross Revenue" are any credits or refunds made to customers, guests or patrons; any sums and credits received by City for lost or damaged merchandise; any sales taxes, excise taxes, gross receipt taxes, admission taxes, entertainment taxes, amusement taxes, tourist taxes or charges; any proceeds from the sale or other disposition of the Club, Furniture, Fixtures & Equipment (FF&E), or other capital assets; any property and/or liability insurance proceeds; any proceeds of financing or refinancing of the Club; amounts contributed by City pursuant to the terms of this Agreement and Income or interest derived from the Club bank account. Gross Revenues shall be determined on an accrual basis and in accordance with generally acceptable accounting principles ("GAAP"). M. Lessons The term "Lessons" refers to the teaching of golf techniques and form provided by the Golf Professional or any other employees or subcontractor, if any. N. Medical Examination. As used herein the term "Medical Examination" shall refer to a pre- employment examination by a physician which includes drug free workplace screening, any required examinations for commercial (CDL) drivers licenses as applicable, and such medical screening necessary to determine that the employment candidate is capable of Physically performing the essential functions for the position for which they are being considered. O. Minimum Funds Balance: The minimum dollar amount of the budget for all operating expenses for each month for the Club, as set forth in the Annual Budget and Program approved by the City. P. Net Operating Income: Gross Revenue from the Club, minus all operating expenses which are attributable (in accordance with generally accepted accounting principles) to 2 nmoni Temp. Resp a13786 the use and operation of the Club, including, without limitation: employee costs, operating expenses, centralized services, the Base Management Fees, expense reimbursements, interest expense on capital leases, all insurance costs related to the operation of the Club, personal property taxes (limited to an amount allocable to the Club), and golf cart leases and operating costs; provided, however, such expenses shall not include any charges for amortization, depreciation, capital expenditures, debt service, City distributions or overhead allocations, or any Incentive Management Fees paid to BCG hereunder. Q. Operating Expenses: The costs attributable to the operation of the Club, including but not limited to: Base Management Fees, payroll, payroll taxes, benefits, employee related costs, insurance, supplies, marketing materials, services, utilities, maintenance and repair, and service agreements. R. Working Capital: Funds utilized to pay operating expenses of the Club. 2. TERM OF AGREEMENT. The term of this Agreement shall commence upon November 1, 2013 ("Effective Date"), with operations to commence on or before November 15, 2013; and unless terminated as provided for herein, shall expire five (5) years from the Effective Date ("Initial Term"), and thereafter may renew for one successive period of five (5) years ( such period being an "Extension Term") upon written mutual agreement by City and BCG no later than one hundred twenty (120) days prior to expiration date. 3. APPOINTMENT OF BCG AS MANAGER. From and after the Effective Date, City hereby grants to BCG the right, subject to City's input, to supervise and direct the management and operation of the Club for and on the account of City, and CWGM will accept said grant and agree that it shall supervise and direct the management and operation of the Club, all pursuant to and in accordance with the terms of this Agreement, and City shall reasonably cooperate so as to permit BCG to carry out its duties hereunder. BCG shall perform the services in accordance with the provisions contained in City's Request for Proposal No. 13-25R entitled "Golf Course Operations Services" dated September 18, 2013, and the BCG Proposal Response dated October 1, 2013, both documents are incorporated herein as if set forth in full as contract documents. These contract documents form the Agreement, and all are as fully a part of the Agreement as if attached to this Agreement or repeated therein. In the event that there is a conflict between Request for Proposal No. 13-25R dated September 18, 2013 as issued by the City, and the BCG Proposal, Request for Proposal No. 13-25R for as issued by the City shall take precedence over the BCG Proposal. Furthermore, in the event of a conflict between this document and any other contract documents, this Agreement shall prevail. 4. BILLY CASPER GOLF, LLC SERVICES. Services rendered by BCG to City shall be as follows: Subject to the terms of this Agreement, BCG, as an independent contractor, shall have the sole and exclusive right to operate, manage, and maintain the Club and the Golf Course property. City and BCG agree that they shall cooperate reasonably with each other to permit BCG to carry out its duties under this Agreement. BCG shall have the responsibility and authority to provide general operational management services for the Club, including, without limitation, the following services: A. Employees. All personnel employed at the Club shall at all times be employees of CWGM. CWGM shall, as an expense of the Club, hire, promote, supervise, direct and train all CWGM employees at the Club, fix their compensation and fringe benefits, and, generally, establish and maintain all policies relating to employment and employment benefits. Employees wishing to participate in the benefits program shall adhere to the requirements of the BCG benefits program with respect to required contributions, 3 Temp. Rasa p13]B6 deductibles and eligibility based upon position classification and employee tenure. CWGM employee files shall always be the sole property of CWGM. All costs of every kind and nature pertaining to all employees at the Club arising out of the employer - employee relationship, including, without limitation, salaries, fringe benefits, bonuses, recruitment, background processing, relocation costs, training, performance management, employment -related legal costs, and costs incurred in connection with governmental laws and regulations and insurance rules, including those relating to post employment costs for benefits, health insurance, cobra payments, and any payouts of unused vacation at termination of employment, shall be an Operating Expense paid from the Operating Account (as defined in Paragraph 5 below), and City shall reimburse BCG from all costs, expenses, liabilities and claims incurred in connection therewith, except to the extent that such costs, expenses, liabilities and claims are as a direct result of BCG's actions or omissions. If an employee of BCG or an affiliate of BCG that is not employed at the Club is assigned temporarily or on a part-time basis to perform services at the Club, such employee's salary (including employee benefits and taxes) in proportion to the period of time such employee dedicates to the Club, and actual expenses incurred traveling to and from the Club shall be reimbursed to BCG by the Club pursuant to 7.D below. Due to the importance and direct impact upon the operations of the Club such employees may impart, the City Manager or designee shall have input related to the hiring of the General Manager, Golf Professional and Golf Course Superintendent. CWGM will be responsible for hiring the appropriate number of qualified personnel to conduct the daily operation and management of the facility and will comply with all federal, state and local laws including but not limited to those related to the Fair Labor Standards Act, social security, nondiscrimination, American with Disabilities Act ("ADA"), unemployment compensation, and workers' compensation who will be employed exclusively for the performance of this Agreement. All personnel employed by CWGM to work at CWGC shall be paid in accordance with the Federal Minimum Wage Law. CWGM shall be responsible for the payment of all employment taxes, social security taxes and background checks related to said personnel. 3. Provisional offers of employment by CWGM of its employees working at the Club shall be. contingent upon the satisfactory completion of the following background screening requirements, with all such expenses associated with the screening to be Operating Expenses of the Club. 4. Background Screening/Fingerprints: All personnel employed by CWGM shall be required to go through background screenings pursuant to Chapter 435, Florida Statutes, and successfully complete a Level 2 screening and a sexual offender background check. All personnel shall have a full criminal history, sexual offender, and Department of Motor Vehicle background check consisting of Federal and State records (note: applicants are not permitted to produce their own personal copies of previous background screening reports). 5. Credit Report: Those responsible for handling cash or financial transactions shall undergo a financial credit check. 6. A pre -employment medical examination must be completed, including drug and alcohol screening pursuant to the Florida Drug and Alcohol Free Workplace program requirements of §440.102, Florida Statutes. 7. Failure of an applicant to successfully complete the required full background investigation and medical examination shall result in the withdrawal of the contingent offer of employment. 4 Temp. Raso4 786 8. All employees of the Club involved in accidents while on the job, regardless of level of damage or injury shall undergo a post -incident examination to include a drug and alcohol screening pursuant to § 440.102, Florida Statutes. 9. Employees of BCG and CWGM shall at all times be under the sole direction and not an employee or agent of the City. BCG and CWGM shall supply competent and physically capable employees to work at CWGC. City Manager or designee may give CWGM notice that an employee's conduct is detrimental to the public. Following said notice, CWGM shall meet with the City Manager or designee to consider the appropriate course of action. 10. Non -Discrimination & Equal Opportunity Employment. During the performance of this Agreement, CWGM shall not discriminate against any employee or applicant for employment because of race, color, sex, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, or disability if qualified. CWGM will take affirmative action to ensure that employees are treated during employment, without regard to their race, color, sex, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, or disability if qualified. Such actions must include, but not be limited to, the following: employment, promotion; demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CWGM shall agree to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. CWGM further agrees that it will ensure that subcontractors, if any, will be made aware of and will comply with this nondiscrimination clause. 11. Safety Standards. BCG warrants that all work performed under this Agreement shall conform in all respects to the standards, procedures and protocols set forth in the Occupational Safety and Health Act of 1970 as amended, and shall be in compliance with Chapter 442, Florida Statutes as well as any industry standards, if applicable. BCG shall supervise its work force to ensure that all workers conduct themselves and perform their work in a safe and professional manner. 12. Unauthorized Aliens: The employment of unauthorized aliens by BCG is considered a violation of Section 274A (e) of the Immigration and Nationality Act. If BCG knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement. This applies to any sub -contractors used by BCG as well. The obligations under this Paragraph 4A herein above shall survive the termination of this Agreement. 13. City shall not, without the written consent of BCG, offer employment to, hire or employ any corporate BCG employee or individual who has been a corporate BCG employee at any time during the six (6) month period prior to the proposed offer of employment or hiring by City. The obligations under this Paragraph 4A.13 shall remain effective from the Effective Date through a period of one (1) year after the termination of this Agreement. B. Inventory — Merchandise and Items for Re -sale. BCG shall, at the expense of the Club, obtain merchandise for the pro shop at the Club and food and beverage items, all in accordance with the Annual Budget and Program. ax blt I Temp. R.-k1JT66 C. Supervision. BCG shall supervise and manage the Club operations to include golf pro shop, maintenance, food and beverage, annual membership and pass sales efforts, administration, and other ancillary services at the Club. D. Equipment. Except as set forth in Paragraph 13, BCG shall, in preparation of Annual Budget and Program as set forth in Paragraph 4H, develop a list of required equipment and a purchase/lease schedule and maintain in good working condition and order the physical plant and equipment at the Club including the golf course and all physical structures which are part of the Club, and all vehicles and other maintenance equipment necessary to the maintenance and operation of the Club in the normal course of business. Such maintenance shall occur in accordance with manufacturer's recommended specifications for all equipment and vehicles or otherwise in accordance with industry standards as to all other property. The City shall have the right to inspect the equipment and maintenance procedures upon reasonable notice to CWGM. E. Purchasing and Procurement. With respect to the duties and responsibilities of BCG as set forth in this Paragraph 4, BCG shall arrange for the procurement, on behalf of the City and as an operating expense of the Club, all operating supplies, operating equipment, inventories and services as are deemed necessaryto the normal and ordinary course of operation of the Club and to operate the Club in accordance with the Annual Budget and Program. In purchasing operating supplies, operating equipment, inventories (including merchandise to be sold in the golf shop) and services for the Club, BCG may utilize its purchasing procurement services and/or other group buying techniques involving other clubs managed by BCG, provided that the cost thereof shall be competitive. In such event, BCG may receive and retain a minor fee or other compensation from vendors and service providers in exchange for BCG's services in making the benefit of volume purchases available to the Club or negotiating and implementing the arrangements with such vendors or providers, provided that the cost shall be competitive. Any available discount, rebate, fee or compensation which is directly attributable to the purchases made by BCG for the operation of the Club shall be remitted directly to the Club from the vendor and shall be included in Gross Income. BCG may, to the extent reasonably practicable, consult with the City's Purchasing & Contracts Manager in an effort to obtain the most competitive pricing available in the. marketplace. Any BCG proposed subcontractor shall be submitted to City for prior written approval. Any subcontract shall be in writing and shall incorporate this Agreement and require the subcontractor to assume performance of BCG's duties to City under this Agreement, with it being understood that nothing herein shall in any way relieve BCG of any of its duties or responsibilities under this agreement. F. Consultation. Except as provided in Paragraph 4A pertaining to the assignment by BCG of temporary or part-time BCG personnel, BCG shall, as part of its services hereunder and without additional compensation, make its staff available to City upon request for consultation regarding the Club, including, but not limited to capital improvements or projects which may include modifications to the vertical structures or golf course. G. Marketing. BCG shall create, direct, and implement an annual marketing plan for the Club as part of the Annual Budget and Program. The marketing plan for the Club will include a market analysis, a summary of golf programs to include rates, annual membership and pass sales structure, and strategies for achieving the budgeted financial goals and other marketing -related goals for all Club departments. BCG shall, as an operating expense of the Club, obtain and manage: 0 temp. Res. #13786 1. Marketing systems, including internet (web site, e-mail, e-commerce); electronic tee sheet program (reservation system, customer database, POS); credit card processing; and branding materials (graphic design, collateral, photography); 2. Customer acquisition programs, including advertising (print, electronic, display); direct marketing (direct mail, broadcast e-mail); promotional offers; and community and vendor partnerships and sponsorships; 3. Customer retention programs, including special events and programs; promotional offers; and membership events and programs; 4. Sales programs, including outing, membership, and event sales management; and 5. Quality assurance programs, including customer surveying; 'secret shopper' on - site visits and telephone sales calls. BCG shall coordinate and oversee all third party contractors' work in connection with the production and implementation of these programs. BCG shall also include, as appropriate, the Club as a participant in BCG-shared marketing programs, including regional and national advertising and promotions, round sharing and referrals through the reservation system, and use of the name and mark 'Managed by Billy Casper Golf.' All advertising fees and promotional fees paid by third parties to the Club shall belong to and constitute Gross Revenues of the Club. H. Accounting. BCG or CWGM, as appropriate under separate agreements, shall pay all vendors of the Club (subject to the availability of funds in accordance with the terms of the Agreement). BCG shall provide separate budgeting, bookkeeping and reporting services to City for the Club. Copies of all books and records shall be kept at the Club. All books, records, software, data, programs, manuals and the like shall remain the property of City and BCG shall be entitled, but not obligated, to keep a copy of said books, records, software, data, programs, manuals and the like for its own records as it desires. Reporting. BCG shall prepare and deliver to the City, in accordance with BCG standard procedures and format, on an accrual basis and generally accepted accounting principles (GAAP) for the single purpose subsidiary entity CWGM, regular monthly and annual financial statements which shall include an operating level balance sheet (bank account balances, inventory, accounts payable, accounts receivable if applicable, accrued payables, gift certificate balances and paid in capital from City), a profit and loss statement for the current month and year to date activity, accounts payable listing, general ledger activity and comments regarding monthly activity and variances to the Annual Budget. Upon City's request, BCG shall provide all accounting data and reports in electronic form. BCG shall not be responsible for the accounting or governmental reporting requirements of the City, including but not limited to, the depreciation, amortization or addition of assets and equipment, City's equity, debt service principle, loan amortization, or payment of any invoices which relate to a period prior to the Effective Date. City shall provide BCG opening entry data for the balance sheet within fifteen (15) days of the Effective Date. Final monthly operating statements shall be furnished to City no later than the 20th day following the last day of each month, and annual operating statements shall be furnished by the 45th day following the last day of each Fiscal Year. At City's discretion, the annual operating statement shall be audited and prepared by a certified public accountant chosen by City, the cost of which shall be an Operating Expense of the Club. This audit shall be performed at the Club site, and BCG shall make every reasonable effort to comply with the auditor's requests. T..1. Raso 419766 2. Internal Control. BCG agrees to develop, install, and maintain appropriate accounting, operating, and administrative controls governing the financial aspects of the Club, such controls to be consistent (in all material respects) with generally accepted accounting principles. 3. Records and Inspection. BCG shall maintain a set of all financial, vendor, employee, and operating records relating to the Club at the Property. At any time during the Term and for five (5) years thereafter, City shall have the right, after reasonable prior written notice to BCG, to inspect the books, records, invoices, deposits, canceled checks, or other financial data or transactions of the Club at reasonable times and during normal business hours; provided, however, City shall use its best efforts to not cause any disruptions in the operations of the Club in connection with such inspections. BCG shall maintain and insure that its subcontractors and concessionaires, if any, maintain records to verify allowable expenses. In addition, the City may observe the operation of the Club so that the accuracy of the records can be confirmed. Notwithstanding the foregoing, such inspection rights shall not extend to any inspection of BCG corporate records at its corporate office or any records relating to any other projects or locations. Upon expiration or termination of this Agreement, BCG will promptly turn over all such Club records to City; however, BCG may retain copies as required by applicable records retention policies or law. In the event any audit or inspection conducted reveals any underpayment or overpayment by BCG and such fact is confirmed by the representatives of both parties, BCG or City, as applicable, shall correct such underpayment or overpayment within thirty (30) days of notification. In the event BCG and City cannot agree on the findings of the audit or inspection within thirty (30) days in good faith, then City and BCG shall appoint a neutral third party auditor that is mutually acceptable to both City and BCG who shall perform an independent review of both the City's determinations and BCG's determinations. The determination of such neutral third party auditor shall be final and binding on both parties. The cost of the neutral third party auditor shall be shared by both parties and shall not be considered an Operating Expense of the Club. 4. Annual Budget and Program. BCG shall prepare and deliver to City no later than June of each year (except for the first full or partial fiscal year when BCG shall prepare and deliver to City no later than thirty (30) days after the Effective Date) for the following fiscal year: (a) an Annual Operating Budget, including revenues and Operating Expenses and labor burden (to include rates of pay, incentive or commission structures) for each department of the Club; a merchandise buying plan for the pro shop; a comparison to the annual operating budget for the immediately preceding year and a projection of anticipated monthly revenues and expenses and cash flows for the Club for the following Fiscal Year, including, without limitation, a reasonable contingency and anticipated working capital requirements for the Club for the year; (b) a recommended capital expenditures budget for the next Fiscal Year; (c) a Policies and Procedures Outline for the Club, including, without limitation, operating policies, proposed hours of operation, policies related to complimentary golf course and Club use by City's representatives and employees, standards for operations and quality of service standards; (d) an Agronomic Plan including staffing assumptions, chemical and fertilization applications including planned agronomic practices; (e) Marketing Plan as described in Paragraph 4G (collectively, the "Annual Budget and Program"). BCG and City shall use their mutual best efforts to agree upon the I3 Temp, Re,, #13786 Annual Budget and Program for the following year before the Fiscal Year end. City shall have the final approval and final decision -making authority over the Annual Budget and Program. City shall provide BCG written confirmation of its approval of the Annual Budget and Program within sixty (60) days of BCG's submission of the Annual Budget and Program to City. If the City does not provide the written confirmation or rejection within the aforementioned sixty (60) day period, BCG shall continue to operate under the existing budget until approval is obtained. Each party may, from time to time, propose to the other party, in writing, during the course of the year, such changes or amendments to the Annual Budget and Program as such party may consider necessary or appropriate, and BCG and City shall use their mutual best efforts to act upon such proposal within thirty (30) days after such proposal is made provided any such change or amendment shall be subject to City's prior written approval. If the City fails to provide written confirmation or rejection of BCG's proposed changes or amendments to the Annual Budget and Program within thirty (30) days after such proposal is made, said changes shall not go into effect until approval is obtained or rejection of the amendment has been received. BCG shall secure the prior approval of City for total expenditures which exceed the total expenditure amount approved in the Annual Budget and Program, however, as necessary, BCG has the ability to allocate funds from individual expense line item to another expense line item within the Annual Budget and Program, and (ii) expenditures which will exceed any line item in the Annual Budget and Program by Ten Thousand Dollars ($10,000), so long as all such expenditures do not exceed Fifty Thousand Dollars ($50,000) in the aggregate for the entire Annual Budget and Program, except for expenditures necessary in the event of emergencies for which prompt notice will be given to City. Payroll and Benefits. BCG, on behalf of CWGM, shall establish, administer, and maintain the payroll procedure and systems for the CWGM employees at the Club and shall be responsible for overseeing the benefits to, and handling the appropriate payroll deductions for, individual employees. Benefits will be limited to vacations, sick leave, medical insurance coverage, and 401(k) plan, as approved by City pursuant to the Annual Budget and Program. All employees of the Club shall be employees of CWGM, and CWGM shall comply with Federal and State employment laws. Vendor Accounts. BCG shall utilize existing vendor accounts which are in the name of the City whenever possible. If necessary, BCG shall coordinate with City and appropriate vendors to establish any new vendor accounts with appropriate credit limits applied for on behalf of and in the name of the City. BCG and/or CWGM shall act as Agent for the City with regard to payment of vendors, and City accepts full responsibility for all vendor payments which are part of the approved Annual Budget and Program. IT Services. BCG shall create, direct, and implement activities IT functionality, in a safe and stable manner, for the Club. BCG shall, as an Operating Expense of the Club, obtain and manage: Networking infrastructure. The hardware and software resources of an entire network that enable network connectivity, communication, operations and management of a computer environment. The entire network infrastructure is interconnected, and can be used for internal communications, external 9 Temp. Reso p13166 communications or both. The entire network infrastructure may include routers, switches, wireless routers, cables, network operations and management software, operating systems, firewall and network security applications, network connectivity (cable, T-1 Lines, DSL, satellite, wireless, IP addressing, etc.) 2. Telephone Systems. The electronic transmission of voice, fax, or other information between parties including the use of VoIP (voice over Internet Protocol) for the delivery of voice communications over the Internet. This includes voice, fax, SMS, and/or voice -messaging applications that are transported via a network. 3. Hardware and Software to include the physical components that make up a computer system and then the software that runs on those physical components. 4. Virus and Malware Protection software designed to prevent viruses, worms and Trojan horses from getting onto a computer as well as remove any malicious software code that has already infected a computer. 5. Network Intrusion Protection software application that monitors network or system activities for malicious activities. Intrusion detection and prevention systems are primarily focused on identifying possible malicious incidents, logging information about them, and reporting attempts. 6. Network Monitoring is the use of a system that constantly monitors the computer network for slow or failing components and notifies the network administrator (via email, SMS or other alarms) in case of outages. PCI Compliance. BCG will review the network and work with City as part of the start-up and transition process in order to determine necessary steps to achieve compliance with the Payment Card Industry Data Security Standards ("PCI DSS") at the Club. PCI DSS is a set of requirements designed to ensure that all companies that process, store or transmit credit card information maintain a secure environment with focus on improving payment account security throughout the transaction process. IT Service Reimbursement As part of the Annual Business Plan there shall be a monthly support fee for the remote support of the IT services as referenced. If the issue cannot be resolved remotely and requires BCG corporate based personnel to be on site at the Club BCG IT Services shall be paid an amount equal to seventy five dollars ($75.00) per hour and necessary hardware upgrades/software installation without mark-up or profit to BCG. BCG shall coordinate and oversee all third party contractors' work, if cost effective and appropriate, in connection with the implementation of these programs. Operating Expenses and City's Remittance. Minimum Funds Balance. At the end of each calendar month, after paying the Operating Expenses of the Club and other expenses authorized by City, BCG shall remit directly to City all amounts (if any) then in the Operating Account (as hereinafter described) in excess of the Minimum Funds Balance (as hereinafter described) by wire transfer or on line transfer to said account as City may from time to time designate by written notice to BCG (the "City's Remittance"). As used herein, the Minimum Funds Balance for the Club shall be defined as the dollar amount of the total budget for all Operating Expenses (as set forth in the 10 Temp. peso p1]]86 Annual Budget and Program) for the month following the current month within the Term of the Agreement. At no time shall the Minimum Funds Balance be less than fifty thousand dollars ($50,000). Operating Expenses. BCG shall pay all Operating Expenses for the Club on behalf of City from the Operating Account which expenses shall include, but not be limited to, payments of all monthly payroll and related expenses, Operating Expenses, Management Fees (including Base Management Fees and Incentive Management Fees), any real and personal property taxes levied on the Club. BCG will collect from and remit on behalf of the City, sales, use, value -included and excise taxes on sales and rentals at the Club. Under no circumstances shall BCG or CWGM be liable for Federal, State, or local taxes of any kind whatsoever levied against City or the Property in relation to City's ownership, leasing, or operations. 3. Initial Funding. Until such time as the Annual Budget and Program are approved by City, City gives BCG approval to operate the facility in accordance with this Agreement. City shall provide initial funding in the amount of fifty thousand dollars ($50,000) for operations prior to approval of the Annual Budget and Program (the "Initial Funding") and shall at all times ensure that the Minimum Funds Balance is maintained in the Operating Account upon execution of this Agreement. If operating revenues are insufficient to cover expenses, upon BCG's notifying City of such operating revenue shortfall, City shall have five (5) business days to deposit into the Operating Account the funds necessary to cover such deficits and to restore the Minimum Funds Balance. If City does not provide the necessary "Working Capital", BCG may, but shall not be responsible to, cover such Operating Expenses. City shall be liable to reimburse BCG for any such amounts paid by BCG. City shall be responsible for all late fees, interest, and other penalties charged by vendors and other parties who supply labor, services or materials to the Club and to whom such amounts are owed to the extent such amounts are charged arising out of the City's failure to provide the necessary Working Capital." The City shall not be responsible for late fees, interest and other penalties charged by vendors and other parties solely due to BCG or CWGM's failure to pay such expenses timely for reasons unrelated to the availability funds. K. City's Meeting. BCG shall, periodically, consult with the City regarding the Club and its operations at a time, date and place designated by City. L. Limitations. BCG shall obtain City's prior written approval for (i) contracts in excess of ten thousand dollars ($10,000), (ii) contracts in excess of twelve (12) months in duration unless the same can be terminated upon thirty (30) days written notice without cost or fee to City, and (iii) contracts with affiliates of BCG. M. Assignment of Operations. Upon a termination of this Agreement, BCG and/or CWGM, as appropriate, shall assign to City's designee all operating accounts, vendor accounts, inventory, accounts receivable, and accounts payable, which transfer shall be completed upon BCG and/or CWGM receiving all fees due pursuant to this Agreement. BCG and CWGM shall, without additional payment by the City, cooperate beyond termination with City and any replacement manager for a reasonable period after termination (all parties hereto agree that a reasonable period is not less than two (2) weeks and not more than four (4) weeks) to facilitate the orderly transition of the management of the Club. N. Waterways Maintenance: The City shall be responsible for maintaining all canals and lakes located on or adjacent to the property; however, as an alternative, BCG may 11 Temp. Reso k11166 maintain the canals and lakes in accordance with the City's specifications and the cost of such maintenance shall be considered as an Operating Expense. ACCOUNTS. BCG shall establish the following business checking accounts for the Club: (a) a "Deposit Account," (b) an "Operating Account" and (c) an "On Site Account," (collectively, the "Accounts"), for use in its management and operation of the Club. BCG, CWGM and City shall be authorized to access and use the Accounts in compliance with the Annual Budget and Program and the terms of this Agreement. All revenues, receipts, and funds deposited into the Accounts from time to time by City, BCG or CWGM shall be defined as and constitute "Working Capital" herein. BCG and/or CWGM shall cause all revenues and receipts to be deposited into the Deposit Account on a daily basis. BCG and/or CWGM shall use the Operating Account to pay all Operating Expenses of the Club and shall transfer funds from the Deposit Account to the Operating Account as required to pay such expenses. BCG and/or CWGM shall maintain in the On -Site Account an amount to be used for minor Club expenses. Upon cancellation or termination of this Agreement for reasons other than fraud, theft or other criminal activity, BCG and/or CWGM shall continue to have the right to access and use the Accounts to satisfy all Operating Expenses incurred through the final effective date of termination after all of the notice and cure periods described herein have expired. Forty-five (45) days after the final effective date of termination after all of the notice and cure periods described herein have expired, BCG's and CWGM's rights to access and use the Accounts shall be immediately revoked and all funds in the Accounts shall be immediately paid over to City.. Upon direction from City from time to time, BCG shall invest or deposit funds in the Accounts in accordance with City's direction provided that the City's direction is compliant with the Annual Budget and Program and the terms of this Agreement. BCG shall establish, administer and maintain the point of sale and credit card procedures and systems for the depositing of revenues into such accounts on a daily basis. 6. INSURANCE. BCG shall secure and maintain a separate property, general liability, crime, D & O, and worker's compensation insurance coverage, etc. for the Club as set forth in Exhibit A, provided BCG has continued access and control of the property constituting the Club. These coverages, limits and deductibles set forth in Exhibit A are subject to change each policy year. BCG shall provide written notice to City in the event of a coverage, limit, and/or deductible change. City shall notify BCG in writing if City desires to have any property insured through BCG Master Insurance policy. The written notice must be delivered to CWGM such that it is received by BCG thirty (30) days prior to the effective date of such coverage. City shall be liable for the payment of the premiums of said insurance for so long as City shall own the Club during the term of this Agreement. The coverage shall be terminated upon termination of the Agreement. Upon City's prior written notification to BCG, City may procure and maintain, at City's sole cost and expense, with insurance companies licensed to do business in the State of Florida sufficient insurance fully covering the Property and operation of the Club. Owner shall deliver to BCG certificates of insurance evidencing the required policies. Such policies shall name BCG, CWGM, City, and any applicable third parties as additional insureds under such policies. All insurance policies required hereunder shall contain a provision requiring the insurer to notify BCG, City and other named insureds at least thirty (30) days in advance of any cancellation or termination of such policy and satisfactory waiver of subrogation provisions. BCGs secured coverages shall not include D & O coverage for City. Except as provided for elsewhere in this Paragraph, BCG shall be responsible for securing and maintaining all of the insurance policies required hereunder, provided, however, that BCG shall have no obligation to pay such premiums from its own funds. BCG shall obtain competitive bids for the coverage each year. BCG contemplates that it will secure such insurance as a part of a blanket policy; the premiums attributable to the Club shall be determined by making a reasonable allocation based on the relation of the amount of insurance carried for the Club to the total policy 12 #137 6 Temp. Reso d13]86 amount provided for other BCG clubs in the blanket policy, and the blanket policies shall have coverage in the amounts set forth in Exhibit A. These coverages, limits and deductibles are subject to change each policy year. BCG shall provide written notice to City in the event of a coverage, limit, and/or deductible change. The premiums for any and all such policies shall be paid from the Operating Account to be provided by City pursuant to Paragraph 5 hereof and in accordance with the Annual Budget and Program, or by City in the event there is insufficient Working Capital available. 7. COMPENSATION AND FEES. A. Base Management Fee. For its services hereunder, BCG shall be paid a Base Management Fee (the "Base Management Fee") of seven thousand three hundred and thirty three dollars per month ($7,333.00) per month. The Base Management Fee shall be payable on the fifth (51h) day of each month from the Operating Account. The Base Management Fee shall be a net fee to BCG and shall not include Club expenditures as provided for in this Paragraph 7 or any other Operating Expenses. Commencing on January 1, 2015, and for each subsequent year and possible Extension Term thereafter, the Base Management Fee shall increase three -percent (3%) over the immediately preceding year for the term of the Agreement. B. Incentive Management Fee. In addition to the Base Management Fee, BCG shall be entitled to earn an Incentive Management Fee for each full Fiscal Year during the Term. For Fiscal Year 2014 and each year thereafter, BCG shall receive an amount calculated as fifteen percent (15%) of the positive Net Operating Income in excess of one dollar ($1.00) for Fiscal Year 2014 and 2015 and fifteen percent (15%) of positive Net Operating Income in excess of one hundred and fifty thousand dollars ($150,000.00) (the "Incentive Management Fee"), for each year thereafter. Notwithstanding anything to the contrary in this Paragraph 7, the Incentive Management Fee earned by BCG in any Fiscal Year shall not exceed one -hundred percent (100%) of the Base Management Fee paid to BCG for that Fiscal Year. The Incentive Management Fee earned for a Fiscal Year shall be paid no later than seventy-five (75) days following the Fiscal Year for which it is calculated and in which it was earned. All Base Management Fees and Incentive Management Fees during the term shall be paid to BCG from the Operating Account. City shall pay directly to BCG any fees not payable until after the expiration or termination of this Agreement. Any Base Management Fee not received by the 10th of the month, any Incentive Management Fee not received seventy-five (75) days following the year in which it was earned, and any other sums due under this Agreement and not paid when due (including, but not limited to reimbursement for Centralized Services as defined in Paragraph 7C below and Operating expenses as described in Section 1) shall be delinquent (hereafter, "Past Due Amount") and subject, without notice or demand, to late fees and interest as follows: Late Fees & Interest. This Agreement shall be subject to the provisions of the Florida Prompt Payment Act as set forth in Chapter 218, Florida Statutes. C. Stop -Gap Provision. In the event Net Operating Income is less than One Hundred and Fifty Thousand Dollars ($150,000.00) in the aggregate for Calendar Years 2014 - 2016, BCG shall credit four (4) months management fees for each of the remaining two (2) years of the initial term of the Management Agreement, pay the Cure Amount pursuant to Paragraph 10 C, or City may terminate agreement per Paragraph 10 C. For purposes of determining whether the $150,000 in the aggregate for Calendar Years 2014-2016 has been achieved, Net Operating Income shall be a subject to adjustment for force majeure, or Uncontrollable Forces as outlined in Paragraph16 S. 13 tx `11 Temp. Res.#13166 D. Ongoing Travel. After the Transition and Start up Travel period of ninety (90) days, BCG's corporate based employees shall be reimbursed for all reasonable travel -related expenses, including airfare, automobile (mileage reimbursement or rental car), lodging, and meals, in connection with its services hereunder pursuant to the approved line item in the approved Annual Budget and Program, provided that any such expenses shall be appropriately allocated among other facilities benefited by such travel. BCG shall provide documentation of all expenses in a form acceptable to City. Such reimbursement shall not exceed six thousand dollars ($6,000) per Fiscal Year. E. Transition & Start-up Travel. For changes requested by City, during the initial ninety (90) days of this Agreement, BCG's IT, Human Resources, and Regional Support corporate based employees shall be reimbursed for all reasonable travel -related expenses, including airfare, automobile (mileage reimbursement or rental car), lodging, and meals, in connection with the start-up and transition of the Club to BCG Operations. Such reimbursement shall not exceed two thousand dollars ($2,000). In the event that the actual cost of expenses exceeds two thousand dollars ($2,000), BCG shall submit a written request to the City which shall include a detailed justification for such increase. City shall provide written permission prior to incurring such expenses. F. City's Review. BCG's services herein shall include management and oversight of the turn- key accounting function as set forth in Paragraph 4H, and upon reasonable notice (which may be verbal) representatives of City shall have the right, at any time during normal business hours, to review all of BCGs books and records including the general ledger, accounts payable, income statement, balance sheet, and budget variance reports relating to the Club including, without limitation, BCG's work papers related to BCG's preparation of operating statements. All expenses related to any such review shall be exclusively borne by City for purpose of this Agreement unless such review reveals an overpayment of any fees or other amounts in which case BCG shall pay for the review. City's exercise of its right of review or to dispute any fee or expense reimbursement claimed by BCG shall not delay payment of the undisputed portion thereof by City within the time frames set forth herein. However, payment by City of a fee or other amount hereunder shall not constitute a waiver of City's right to subsequently dispute the amount thereof. If City and BCG determine that any portion of the Base Management Fee or any other amount was improperly paid to BCG, BCG shall refund such improperly paid fee together with interest thereon from the time when such fee was paid to BCG within five (5) business days after receipt of notice from City to BCG. If there is any dispute between the parties regarding whether or not any payments of the Base Management Fee or any other amount were proper, such disputes shall be resolved by a court of competent jurisdiction as set forth in Paragraph 14B. G. Centralized Services. BCG may cause to be furnished to the Club certain services ("Centralized Services") which are able to be furnished in a more cost effective and efficient manner on a central or regional basis to golf facilities managed by BCG. The costs to provide such services shall be aggregated and billed to the clubs by BCG rather than by a third party vendor. Centralized Services shall be approved as part of the Annual Budget and Program. BCG represents that this reimbursement amount shall consist of an amount not exceeding the actual cost of the services without mark-up or profit to BCG including salary and employee benefit costs, cost of equipment used in performing such services, and overhead costs of the home office or any regional or other local office providing such services. 8. CAPITAL EXPENDITURES. The cost of all Capital Improvements shall be deemed to include any item purchased in connection with the operation of the Club which: A. Has an economic useful life in excess of one (1) year, and 14 Temp. Res. #13786 B. Has a cost in excess of two thousand five hundred dollars ($2,500). All Capital Expenditures for Capital Improvements shall be the responsibility of City and all decisions as to whether or not to undertake any capital improvements projects or otherwise in respect of any capital improvements shall be made by City in consultation with BCG. 9. DEFAULT AND REMEDIES. A. City Default. The following shall constitute an event of default ("Event of Default") by City under this Agreement: 1. Failure to timely pay BCG any fees, compensation, or reimbursement due BCG pursuant to this Agreement; 2. Failure to timely provide working capital in accordance with Paragraph 4J hereof; 3. Failure by City to perform any material obligation set out in this Agreement, such as, but not limited to, failing to consult with BCG regarding budgets or capital improvements; 4. Assignment by City for the benefit of its creditors, or becoming a party for more than thirty (30) days to any voluntary or involuntary insolvency proceedings or bankruptcy proceedings or reorganization; or 5. B. BCG Default. The following shall constitute an event of default ("Event of Default") by BCG under this Agreement: 1. Failure to maintain the amenities of the Club in reasonably good condition, not including failures resulting from abnormal weather conditions, acts of God, or other events or conditions beyond the reasonable control of BCG; 2. Failure to operate the Club in accordance with the approved Annual Budget and Program; 3. Failure of BCG to perform any material obligations set forth in this Agreement; or 4. Assignment for the benefit of its creditors, or becoming a party for more than thirty (30) days to any voluntary or involuntary insolvency proceedings or bankruptcy proceedings or reorganization. C. Notice and Cure. When either party to this Agreement believes that the other party (the "Defaulting Party") has committed an Event of Default, it shall give written notice thereof to the Defaulting Party. The Defaulting Party shall have ten (10) calendar days from the date of the notice to cure the default unless the default is a non -monetary default and, due to weather, growing conditions or other factors beyond the reasonable control of the Defaulting Party, requires more time to cure. In order to qualify for a longer cure period, the Defaulting Party must earnestly begin to cure within thirty (30) calendar days from the date of the notice to cure and diligently pursue such cure. In no event will the Defaulting Party have more than sixty (60) days from the date of the notice in the aggregate to cure a non - monetary default. Notwithstanding anything to the contrary, neither City nor BCG shall be entitled to any notice and cure period for a default that occurs more than two (2) times in any twelve (12) month period. 15 Temp. Rasp k13786 D. Rights upon Default. If the Defaulting Party does not cure the default within the grace period provided in Paragraph 9C above, the other party may terminate this Agreement. The termination shall be effective thirty (30) days after written notice to the Defaulting Party of its failure to cure (the "Termination Effective Date"). At any time after the Termination Effective Date and within the applicable statute of limitations, the parties may pursue all rights and remedies available in law or equity, including payment of accrued amounts pursuant to Paragraph 7 hereof. Notwithstanding any contrary provisions hereof, BCGs rights to recover damages from City shall be limited to the extent such liability was as a result of the direct actions, omissions or liability of BCG or otherwise to the sum of (i) accrued and unpaid Base Management Fees and Incentive Management Fees as of the Termination Effective Date, and other amounts due hereunder, including all amounts to fully pay all sums due to third party vendors who provided goods or services to the Club, along with all accrued late fees, interest, and any attorney's fees and costs incurred in collecting or attempting to collect such unpaid amounts; (ii) actual damages not to exceed the amount of one hundred thousand dollars ($100,000); and (iii) the Cancellation Fee (defined below) as fixed, agreed liquidated damages and not as a penalty (it being agreed by the parties that BCG's damages would be extremely difficult to measure and that the Cancellation Fee has been agreed upon, after negotiations, as a reasonable estimate of such damages). The parties also agree that notwithstanding any contrary provision hereof, City's damages shall be limited as provided herein. 10. TERMINATION AND CANCELLATION. A. Either party may terminate this Agreement upon the occurrence of an Event of Default by the other party as provided in Paragraph 9D above. B. Cancellation Fee; Default by City. In the event BCG terminates this Agreement due to the Default of City and BCG is not in default, City shall pay to BCG, within sixty (60) days of the Termination Effective Date, a cancellation fee based on the year in which termination occurs (the "Cancellation Fee"). The Cancellation Fee shall be calculated as: the amount determined by taking the sum of the Base Management Fee and the Incentive Management Fee for the prior Fiscal Year, then multiplying that quantity times the remaining years (including fractional years) in the Term of the Agreement, and then multiplying that second quantity times fifty percent (50%). The above formula will apply during any renewal term based upon the remaining years in the renewal term. Provided, however, the Cancellation Fee pursuant to this Paragraph 10B shall not be less than seventy-five thousand dollars ($75,000). The parties agree that the Cancellation Fee is not duplicative of any other damages which BCG may recover in the event of a default by City. C. City's Reserved Right of Termination For Cause. City shall have the right to terminate the Agreement, without the payment of a Termination Fee, Cancellation Fee or other penalty, if, in at the end of Fiscal Year 2016 Net Operating Income does not equal or exceed $150,000 in the aggregate for the Fiscal Years 2014-2016. City may exercise such termination right by providing written notice within thirty (30) calendar days after City's receipt of the final determination of Net Operating Income for the third Fiscal Years (either via the BCG-prepared annual operating statement in Paragraph 4H; provided, however, that the methodology for calculation of Net Operating Income shall be as defined herein and shall be consistently applied to any Fiscal Years used in comparison). Failure to give such notice within such thirty (30) day period shall be deemed to be a waiver by City of its right to terminate based on the Fiscal Years in question, but shall not be deemed to be a waiver of such right with respect to subsequent Fiscal Years. In the event City elects to exercise its right of termination for cause, BCG shall have the 16 Temp. R... #13786 right, but not the obligation, to nullify such termination by paying to City, within sixty (60) calendar days of BCG's receipt of City's termination notice, the aggregate amount by which actual Net Operating Income for the Fiscal Years 2014-2016 was less than $150,000 in the aggregate (the "Cure Amount"). D. In order to afford City the ability to preserve its assets, City shall have the right to terminate this Agreement, effective upon delivery of written notice of termination, in the event of fraud, theft or other criminal activity by BCG or CWGM, which has not been appropriately addressed by CWGM or BCG. E. Termination Fee: City's Termination for Convenience. After Fiscal year 2016, City may terminate the Agreement upon ninety (90) days prior written notice to BCG and payment of a Termination Fee of fifty thousand dollars ($50,000). Sale Termination Fee: Sale of Club. In the event of a sale or transfer of the Club to any third -party, City shall have the unilateral right to terminate this Agreement at any time on ninety (90) days prior written notice, subject to the provisions set forth below. In the event of such unilateral termination due to the sale or transfer of the Club and BCG not being in default under this Agreement, BCG shall continue to manage the Club until the sale of the Club as evidenced by a transfer of title. Upon sale of the Club, BCG shall be paid a Sale Termination Fee equal to Fifty Thousand dollars ($50,000). Sale Termination Fee will be in addition to any Base Management Fees and Incentive Management Fees paid or owing to BCG prior to or as of the date of sale of Club. However, if BCG is retained by the new owner under similar terms and conditions of this Agreement acceptable to BCG, no Sale Termination Fee shall be paid to BCG. G. No Waiver. By terminating this Agreement in accordance with this Paragraph 10, neither party shall be deemed to have waived any action it might have, in law or equity, by reason of a breach of or default under this Agreement. H. Proprietary Material. Upon termination or cancellation of this Agreement, for any reason or under any circumstances, BCG's (i) proprietary software and computer programs relating to accounting, operations, marketing, and forecasting, (ii) operations and employee training materials and manuals of BCG and (iii) the information and processes related to and used by BCG in the marketing and agronomic plan shall remain the sole property of BCG and shall be removed by BCG upon termination of this Agreement. However, to the extent that any public records are only available through utilization of such proprietary materials/software, BCG must afford City the ability or license to use such materials, although such use may be limited to such purpose. Additionally, any actual or implied association of the Club or Facility with Billy Casper or Billy Casper Golf, LLC shall cease upon termination. 11. USE OF CLUB. During the term of this Agreement, the Club shall be a public facility. 12. LIQUOR LICENSE. Subject to any relevant Florida or City of Tamarac Alcoholic Beverage Control ("ABC") licensing requirements, City, or CWGM shall maintain at all times (except for the application period) a valid liquor license on the premises, and all of the parties hereto shall comply with all relevant ABC laws regarding the use of such license. 13. FORCE MAJEURE; CONDEMNATION; FIRE AND OTHER CASUALTY. If all or any portion of the Club is destroyed by fire or other casualty, or taken by eminent domain, such damage, destruction, or condemnation shall not be a cause for termination hereunder by either party unless such damage or destruction results in the whole or a substantial part of the Club being unusable for its intended purpose for a period of one (1) year or longer or, in the case of such total or substantial damage or destruction, City shall decide not to rebuild the damaged portion of the Club, then in any such event, this Agreement shall terminate on notice from City to BCG of such 17 Temp. Reso N11T86 termination and neither party shall have any further rights or obligations hereunder. Notwithstanding the foregoing, if: A. As a result of any damage or destruction to, or condemnation of, any part of the Club; or B. Otherwise due to causes beyond BCG's reasonable control (and so long as BCG uses all reasonable diligence to cure such inability), BCG shall be unable to perform its obligations hereunder in respect of the operation of the Club, City and BCG shall use their mutual best efforts to agree upon an amendment to the Annual Budget and Program, including, without limitation, the Working Capital provisions thereof, to allow payment of necessary Club expenses (including, without limitation, Club employee expenses) until such damage or destruction is repaired or such inability is cured and, if the parties are unable to agree on such an amendment within twenty (20) business days after BCG shall have given City notice of the occurrence of such event, BCG shall have the right to terminate this Agreement by notice to City of such termination and neither party shall have any further rights or obligations hereunder. In the event of a force majeure there is no Cancellation Fee or Termination Fee due to BCG. 14. INDEMNIFICATION AND LIABILITY. A. Indemnity. GENERAL INDEMNIFICATION: BCG shall, in addition to any other obligation to indemnify the City and to the fullest extent permitted by law, protect, defend, indemnify and hold harmless the City, their agents, elected officials and employees from and against all claims, actions, liabilities, losses (including economic losses to the extent limited by Paragraph 7.C.), costs arising out of any actual or alleged: a). Bodily injury, sickness, disease or death, or injury to or destruction of tangible property including the loss of use resulting therefrom, or any other damage or loss arising out of or resulting, or claimed to have resulted in whole or in part from any actual or alleged act or omission of BCG, any sub- contractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable in the performance of the Work; or b). violation of law, statute, ordinance, governmental administration order, rule, regulation, or infringement of patent rights by BCG in the performance of the Work; or c). liens, claims or actions made by BCG or any sub -contractor under workers compensation acts; disability benefit acts, other employee benefit acts or any statutory bar. Any cost of expenses, including attorney's fees, incurred by the City to enforce this agreement shall be borne by BCG. 2 Upon completion of all Services, obligations and duties provided for in this Agreement, or in the event of termination of this Agreement for any reason, the terms and conditions of this Article shall survive indefinitely. 3 BCG shall pay all claims, losses, liens, settlements or judgments of any nature whatsoever in connection with the foregoing indemnifications including, but not limited to, reasonable attorney's fees (including appellate attorney's fees) and costs. 4 City reserves the right to select its own legal counsel to conduct any defense in any such proceeding and all costs and fees associated therewith shall be the responsibility of BCG under the indemnification agreement. City agrees to coordinate with the insurance carrier to select appropriate defense counsel. Nothing contained herein is intended nor shall it be construed to waive City's rights and immunities under the common law or §768.28, Florida Statute as amended from time to time. 18 T—IO Rem 419188 5 City and BCG recognize that various provisions of this Agreement, including but not limited to this Section, provide for indemnification by BCG and requires a specific consideration be given there for. The Parties therefore agree that the sum of one hundred dollars and 00/100 ($100.00), of the compensation paid hereunder receipt of which is hereby acknowledged is paid as is the specific consideration for such indemnities, and the providing of such indemnities is deemed to be part of the specifications with respect to the services to be provided by BCG. Furthermore, the City and BCG understand and agree that the covenants and representations relating to this indemnification provision shall serve the term of this Agreement and continue in full force and effect as to the City's and BCG's responsibility to indemnify. 6. City is a municipal agency as such term is defined in §768.28, Florida Statutes, and agrees to be fully responsible for the acts and omissions of its agents or employees of the City to the extent permitted by law while they are employed by City. Nothing herein is intended to serve as a waiver of sovereign immunity. This Agreement shall not be construed as consent by any party hereto to be sued by third parties in any matter arising out of this Agreement. B. Legal Actions. Legal counsel for BCG and City shall cooperate in the defense or prosecution of any action pertaining to the Club. BCG shall not institute or defend any legal action or retain counsel affecting the Club without City's consent. BCG shall forward all legal notices or notices of a financial nature which relate to the Club, to City at the address listed under Paragraph 16K. BCG shall advise and assist City in instituting or defending, as the case may be, in the name of Club, City, and/or BCG, but in any event expressly as a Club expense, all actions arising out of the operation of the Club and not attributable to the negligence of BCG, and any and all legal actions or proceedings to collect charges, third party payments, rents, or other incomes for BCG, City, or the Club, or to lawfully evict or dispossess tenants or other persons in possession there under, or to lawfully cancel, modify, or terminate any lease, license, or concession agreement in the event of default thereof, or to defend any action brought against City, unless otherwise directed by the City. BCG shall assist City to take the acts necessary to protect or litigate to a final decision in any appropriate court or forum, as a Club expense, and any violation, order, rule, or regulation affecting the Club. C. Choice of Law and Venue. Whereas BCG's principal place of business is in the Commonwealth of Virginia, and the Facility is located in the State of Florida, the parties agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties also agree that any dispute between them in any way arising out of or pertaining to this Agreement shall be exclusively brought in the Circuit Court for Broward County Florida or in the United States District Court for Broward County. The parties agree to submit to the jurisdiction of those courts. D. Liability of BCG and City. Other persons. BCG shall not be responsible for the acts or omissions of any of City's other contractors or any subcontractor, or any employees of City, or any persons representing City performing any services for or in connection with the Club, or any consultants or other persons engaged by City with respect thereto, unless and only to the extent BCG is supervising, or should be supervising the same, and BCG shall be responsible only for the performance of BCG's obligations hereunder in accordance with the terms hereof. E. Environmental Remediation. Throughout the Term, if BCG becomes aware of the presence of any Hazardous Material in a quantity sufficient to require remediation or 19 exmon 1 Temp. Reso p13166 reporting under any Environmental Law in, on or under the Property or if BCG, City, the Club, or the Property becomes subject to any order of any federal, state or local agency to investigate, remove, remediate, repair, close, detoxify, decontaminate or otherwise clean up the Property, BCG shall, at City's request and sole expense, use all commercially reasonable efforts to carry out and complete any required investigation, removal, remediation, repair, closure, detoxification, decontamination or other cleanup of the Property; provided that such remediation activities shall be at BCG's expense if such activities are required as a direct consequence of Hazardous Material being present in, on or under the Property solely as a result of negligent actions undertaken by BCG. City acknowledges and agrees that City shall be solely responsible for any legal or other liability arising out of the presence of any Hazardous Material in, on or under the Property, except to the extent such Hazardous Material is present in, on or under the Property solely as a result of negligent actions undertaken by BCG. 15. CONFIDENTIALITY & PUBLIC RECORDS. A. Work performed by BCG and its agents or assigns pursuant to this Agreement (including, without limitation, any correspondence, analysis, reports and related materials prepared), constitutes confidential and privileged work product subject to the provisions of Chapter 119, Florida Statutes, and pursuant to the requirements of Paragraph 15.1) herein, and BCG's communications thereon with City or their respective employees or counsel or other professionals retained by City (each a "City Person') constitute confidential and privileged communications which are intended to have the full protections of the work product doctrine, proprietary business privilege, attorney -client privilege and all other applicable privileges as such may be interpreted in accordance with Florida law. Accordingly, BCG agrees that it will not provide such oral or written reports or other work product or disclose such communications to any person other than City, except as may be otherwise requested by City or otherwise required by law. B. BCG agrees that all information, not publicly available, which is received by it from City in connection with this engagement, will be treated confidentially by BCG, except as required by process of law or as otherwise requested by City. In the event BCG is required to disclose any of such information pursuant to process of law, BCG agrees to provide City with prompt notice so that City may seek appropriate remedies, including a protective order. In any event, BCG and its agents, representatives, and employees will furnish only that portion of the information that is legally required to be disclosed. C. City shall retain exclusive rights to ownership of all work output hereunder. Work output includes reports issued pursuant to this Agreement, but excludes, among other things, all working papers of BCG, any correspondence, memoranda, calculations, processes, notes, etc. that BCG may have used in the development of the reports above or such working papers or in the performance of any work covered by an authorization under this Agreement. D. Public Records. City is a public agency subject to Chapter 119, Florida Statutes. BCG and its subcontractors, as applicable, shall comply with Florida's Public Records Law. Specifically, BCG shall: 1. Maintain public records that ordinarily and necessarily would be required by the City in order to perform the service; 2. Provide the public with access to such public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed that provided in Chapter 119, Florida. Statutes or as otherwise provided by law; 20 Temp. Reso p19]8fi 3. Ensure that public records that are exempt or that are confidential and exempt from public record requirements are not disclosed except as authorized or required by law; and e. Meet all requirements for retaining public records and transfer to the City, at no cost, all public records in possession of BCG upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt. All records stored electronically must be provided to City in a format that is compatible with the information technology systems of the City. The failure of BCG to comply with the provisions set forth in this Section shall constitute a Default and Breach of this Agreement and the City shall enforce the Default in accordance with the provisions set forth in Article 10 "Termination and Cancellation" herein. 16. GENERAL PROVISIONS. A. Entire Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings, and representations (if any) made by and between such parties. B. 'Written Amendments. The provisions of this Agreement may only be amended or supplemented in a writing signed by both parties. C. Further Amendments. The parties hereby agree from time to time to execute and deliver such further instruments and documents, and do all such other acts and things, which may be convenient or necessary to more effectively and completely, carry out the intentions of the Agreement. D. Compliance with Laws. BCG shall, at all times, operate, use, and conduct the business of the Club in a lawful manner and in full compliance with all applicable governmental laws, ordinances, rules and regulations, and maintain all licenses and permits relating to the Club, with City's full cooperation, in full force and effect and cooperate and endeavor to obtain all licenses and permits first required after the commencement of the term of this Agreement required in connection with the management, use, and operation of the Club. E. Environmental Laws. City represents to BCG that no hazardous materials have been released into the environment, or have been deposited, spilled, discharged, placed or disposed of at or within the Club in violation of any Environmental Law (as defined below), nor except as expressly disclosed and described by City to BCG has the Club been used at any time by any person as a landfill or a disposal site for hazardous materials or for garbage, waste or refuse of any kind. City also represents, to the best of City's knowledge, that there are no underground storage tanks of any nature on the Club (fuel, propane, gas etc.). City does not have any knowledge of asbestos -containing products within the Club. For the purposes of this Agreement, "Environmental Law" shall mean: All applicable Federal, State, county or local (or other political subdivision thereof) laws, statutes, codes, acts, ordinances, orders, rules, regulations, directives, judgments, decrees, injunctions, directions, permits, licenses, authorizations, decisions and determinations issued, adopted or enacted by any judicial, legislative, regulatory, administrative or executive body of any governmental or quasi -governmental authority, department, branch, division, agency or entity exercising functions of or pertaining to any government having jurisdiction affecting the Club, or any licenses and permits of any governmental 21 ramp. Reno413➢9s authorities, from time to time applicable to the Club or any part thereof regarding hazardous materials. G. Binding. All of the terms and provisions of this Agreement shall be binding and inure to the benefit of the parties and their respective permitted successors and assigns. This Agreement is solely for the benefit of the parties hereto and not for the benefit of any third party. H. Assignment. BCG may assign or transfer this Agreement and/or may delegate its duties and obligations under this Agreement to BCG's Subsidiary as identified in this Agreement. Assignment or transfer to any other parry or parties must be approved by City prior to such assignment or transfer taking place. Subordination and Estoppel. This Agreement shall be subject and subordinate at all times to the lien of any mortgage (or any such instrument providing a security interest) which may now exist or may hereafter be executed in any amount for which the Club or any portion thereof is specified as security. City agrees to use its commercially reasonable best efforts to obtain from Lender a non -disturbance agreement in Lender's standard form reasonably acceptable to BCG. Within ten (10) days of any such written request which City may make from time to time, BCG shall execute and deliver to City a statement in a form reasonably satisfactory to City certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modification), the date to which the Base Management Fee and Incentive Management Fee have been paid, the fact that there are no current defaults under this Agreement by City or BCG, except as specified in BCG's statement, and such other matters reasonably requested by City. Right to Pledge. Any provision herein contained to the contrary notwithstanding, City shall have the right to assign all or any portion of its right, title and interest in, to and under this Agreement and in and to the Club, by way of mortgage or security agreement, in order to secure the repayment of construction and/or permanent loans made for the purpose of financing all or any portion of its costs relating to the acquisition of the Club and the construction of the golf course, clubhouse and improvements thereon, as well as loans for working capital provided that the City shall, upon execution of any such mortgage or security agreement, promptly deliver a true copy of such mortgage or security agreement to BCG. The mortgagee or other secured party, and their respective assigns, may enforce such mortgage or security agreement and may acquire title to the Club and City's interest under this Agreement in any lawful way, and may take possession of the encumbered assets, or cause any person having the relationship of an independent contractor to the mortgagee or secured party to take possession of the encumbered assets, and upon foreclosure thereof (or in the event of any sale thereof in lieu of foreclosure) may without further consent of BCG sell and. assign the Club, free and clear of this Agreement. The mortgagee or secured party or its assigns and any independent contractor to the mortgagee or secured party shall be liable to perform the obligations of City hereunder only during the period such person has title to the Club and City's interest hereunder and this Agreement is in effect but in no event shall such person have any responsibility or liability for the payment of the Termination Fee or the Cancellation Fee. K. Notices. All notices, requests, consents and other communications required or permitted to be given under this Agreement shall be in writing, shall be given only in accordance with the provisions of the Paragraph 16K, shall be addressed to the parties in the manner set forth below, and shall be conclusively deemed to have been properly delivered, (i) upon receipt when hand delivered (or refused) during normal business hours, (ii) upon 22 Temp. Re 0i3)66 the third (3"d) business day after delivery if the notice has been deposited in an authorized receptacle of the United States Postal Service as first-class, registered or certified mail, postage prepaid, with a return receipt requested (provided that the sender has in its possession the return receipt to prove actual delivery), or (iii) one (1) business day after the notice has been deposited with either FedEx or United Parcel Service to be delivered by overnight delivery (provided that the sending party receives a confirmation of actual delivery from the courier). In the case of BCG: Billy Casper Golf, LLC. 8300 Boone Blvd., Suite 350 Vienna, VA 22182 Attention: Legal Department Telephone: 703.761.1444 Facsimile: 703.893.3504 With copy to: Moore & Lee, LLP 1650 Tysons Boulevard, Suite 1450 McLean, Virginia 22102 Attn: Charlie C.H. Lee Telephone: (703) 506-2050 Facsimile: (703) 506-2050 In the case of City: City of Tamarac Attn: Michael C. Cernech, City Manager 7525 NW 881h Avenue Tamarac, Florida 33321 Telephone:954-597-3510 Facsimile: 954-597-3520 With copies to: Director of Financial Services City of Tamarac 7525 N.W. 88th Avenue Tamarac, FL 33321 City Attorney at the following address: Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Blvd., Suite 200 Fort Lauderdale, FL 33308 or to such other address as either party may designate by notice complying with the terms of this Paragraph. L. Headings. The headings contained in this Agreement are for convenience of reference only, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement. M. Invalidity / Severability. If any provision of this Agreement or any other agreement entered into pursuant hereto is contrary to, prohibited by or deemed invalid or 23 Temp. Re10411;;6 unenforceable under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited, invalid or unenforceable, but the remainder of such provision, and this Agreement shall not be invalidated or rendered unenforceable thereby, and shall be given full force and effect so far as possible. N. No Waiver. The failure or delay of either party at any time to require performance by the other party of any provision of this Agreement shall not affect the right of such party to subsequently require performance of that provision or to exercise any right, power or remedy hereunder. Waiver by either party of a breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right, power or remedy under this Agreement. No notice to or demand on either party in any event shall, of itself, entitle such party to any other or further notice or demand in similar or other circumstances, except as otherwise herein provided. O. Independent Contractor / No Partnership. Nothing in this Agreement shall be construed to create a partnership or joint venture between the parties. An Agreement resulting from this solicitation does not create an employee/employer relationship between the Parties. It is the intent of the Parties that the BCG is an independent contractor under this Agreement and not the City's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Worker's Compensation Act, and the State Unemployment Insurance law. BCG shall retain sole and absolute discretion in the judgment of the manner and means of carrying out Contractor's activities and responsibilities hereunder provided, further that administrative procedures applicable to services rendered under any potential Agreement shall be those of BCG, which policies of BCG shall not conflict with City, State, or United States policies, rules or regulations relating to the use of Contractor's funds provided for herein. The Contractor agrees that it is a separate and independent enterprise from the City, that it had full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. Any potential Agreement shall not be construed as creating any joint employment relationship between BCG and the City and the City will not be liable for any obligation incurred by BCG, including but not limited to unpaid minimum wages and/or overtime premiums. P. No Exclusive Remedy. No remedy herein conferred upon either party is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. Q. Authority. Each party hereby represents to the other party that it has the right, power, authority, and financial ability to enter into this Agreement and to perform its obligations under this Agreement, and that it is not restricted by contract or otherwise from entering into and performing this Agreement. R. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, collectively and separately, shall constitute on and the same agreement. S. Uncontrollable Forces. Neither the City nor BCG shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise of reasonable diligence, the non -performing party could not avoid. The term "Uncontrollable Forces" shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the nonperforming party. It includes, but is not 24 Temp. Reso K17]B6 limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and governmental actions. Neither party shall, however, be excused from performance if nonperformance is due to forces, which are preventable, removable, or remediable, and which the nonperforming party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The nonperforming party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this Agreement. T. Agreement Subject to Funding; This agreement shall remain in full force and effect only as long as the expenditures provided for in the Agreement have been appropriated by the City Commission of the City of Tamarac in the annual budget for each Fiscal Year of this Agreement, and is subject to termination based on lack of funding. U. No Construction Against Drafting Party. Each party to this Agreement expressly recognizes that this Agreement results from the negotiation process in which each party was represented by counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against the party drafting this Agreement concerning its construction, interpretation or otherwise accrue to the benefit of any party to the Agreement, and each party expressly waives the right to assert such a presumption in any proceedings or disputes connected with, arising out of, or involving this Agreement. (SIGNATURE PAGE FOLLOWS) 25 Temp. Raso N1�166 IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates under each signature. CITY OF TAMARAC, signing by and through its Mayor and City Manager, and BILLY CASPER GOLF, LLC, signing by and through its Executive Vice President and its Chief Executive Officer duly authorized to execute same. NMA Rq c _ �\OB O_ ',ply'' •........ �.�,,. TTEST: _;)A Patricia A. Teufel, CMC City Clerk Date Date C. Cernech, City Manager App ed as to form and legal sufficiency: Date am ren, City Atto ney Date ATTEST: BILLY CASPER GOLF, LLC Corporate Secretary R. Joseph Good ' , ExThcutive Vice President �0-2-Y-i3 Co -Q'4 Date Date Alexander Elmore, Chief Operating Officer (CORPORATE SEAL) Date 26 Temp. Reso 013186 CORPORATE ACKNOWLEDGEMENT STATE OF :SS COUNTY OF �A1 I HEREBY CERTIFY that on this day, before me, an Officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared R. Joseph Goodrich, Executive Vice President of Billy Casper Golf, LLC, a Virginia Limited Liability Corporation, to me known to be the person(s) described in and who executed the foregoing instrument and acknowledged before me that he/she executed the same. WITNESS my hand and official seal this. day of y 20_a. Elleen Anderson O'Day Notary Publio Commonwealth of VIrpINa ID 0 7801845 my Comm, b1p. 1140-2015 Signature of N�taotarY P�uu ia— State e#-Ffv Print, Type or Starhp Name of Notary Public Personally known to me or ❑ Produced Identification Type of I.D. Produced ❑ DID take an oath, or ❑ DID NOT take an oath. 27 TemDReso p13]66 EXHIBIT A INSURANCE SCHEDULE INSURANCE REQUIREMENTS The following are required types and minimum limits of insurance coverage, which BCG agrees to maintain during the term of this contract: Line of Business/ Coverage Occurrence Aggregate Commercial General Liability and or $1,000,000 $2,000,000 Umbrella/Excess Liability Including: Premises/Operations Contractual Liability Personal Injury/Advertising Explosion, Collapse, Underground Hazard Products/Completed Operations Broad Form Property Damage Cross Liability and Severability of Interest Clause Employment Practices and Employer Benefits Liability Directors and Officers/Errors and Omissions $1,000,000 $2,000,000 Automobile Liability $1,000,000 $2,000,000 Owned and Leased Hired and Non -owned Personal Injury Protection Statutory Liquor Liability $1,000,000 $2,000,000 Storage Tank Liability (If required) $1,000,000 $1,000,000 Pollution Liability $1,000,000 $2,000,000 Flood Insurance Replacement Cost Building Value Contractors' Equipment Replacement Cost Property Insurance Replacement Cost Building Value (All Risk Peril Policy including Hurricane/Wind or a comparable Special Risk Policy covering approved list of perils naming the City as a Loss Payee on all Real Property and City owner Property) Boiler and Machinery Replacement Cost Value Contents Replacement Cost Value Business Income / Extra Expense $1,000,000 $2,000,000 Workers' Compensation Statutory Employers Liability Bodily Injury by Accident $500,000 Bodily Injury by Disease $500,000 Bodily Injury by Disease Policy Limit $500,000 Fidelity Bond or Fidelity Insurance covering all employees who have access to or responsibility for or who handle City funds $1,000,000 $2,000,000 The City reserves the right to require higher limits depending upon the scope of work under this Agreement. Neither BCG nor any Subcontractor of BCG shall commence work under this contract until they have obtained all insurance required under this section and have supplied the City with evidence of such coverage in the form of an insurance certificate and endorsement. BCG will ensure that all Subcontractors will comply 28 Temp. Re #13766 with the above guidelines and will maintain the necessary coverages throughout the term of this Agreement All insurance carriers shall be rated at least A-VII per Best's Key Rating Guide and be licensed to do business in Florida. Policies shall be "Occurrence" form. Each carrier will give the City sixty (60) days' notice prior to cancellation. BCG liability insurance policies (General/Umbrella/Excess Liability, Automobile Liability, Liquor Liability and Pollution Liability) shall be endorsed to add the City of Tamarac as an "additional insured". BCG Workers' Compensation carrier will provide a Waiver of Subrogation to the City. BCG shall be responsible for the payment of all deductibles and self -insured retentions. The City may require that BCG purchase a bond to cover the full amount of the deductible or self -insured retention. If BCG or any Subcontractor is to provide professional services under this Agreement, BCG must provide the City with evidence of Professional Liability insurance with, at a minimum, a limit of $1,000,000 per occurrence and in the aggregate. "Claims -Made" forms are acceptable for Professional Liability. BCG agrees to perform the work under the Contract as an independent Contractor, and not as a subcontractor, agent or employee of CITY. 29 ramn. R- #;3786 EXHIBIT B LEGAL DESCRIPTION OF PROPERTY A portion of Section 8, Township 49 South, Range 41 East, of Fort Lauderdale Truck Farms Subdivision, as recorded in Plat Book 4, Page 31, of the Public Records of Broward County, Florida, being more particularly described as follows: Commencing at the Northeast corner of said Section 8; thence South 00' 01' 37" East, along the East line of said Section 8, a distance of 2637.99 feet; thence North 880 59' 05" West a distance of 53.01 feet to the Point of Beginning of this description; thence North 00° 01' 37" West, parallel with and 53.00 feet West of, as measured at right angles to the East line of said Section 8, a distance of 1558.05 feet to a point of curvature of a circular curve to the left; thence Northerly and Westerly along the arc of said curve, having a radius of 25.00 feet, an arc distance of 39.27 feet to the point of tangency; thence South 890 58' 23" West a distance of 35.00 feet to a point of curvature of a circular curve to the left; thence Westerly and Southerly along the arc of said curve, having a radius of 285.00 feet, an arc distance of 40.13 feet; thence South 00 01' 37" East, a distance of 135.00 feet; thence South 16' 02' 45" West, a distance of 686.27 feet; thence South 050 34' 29" East, a distance of 600.52 feet; thence North 720 09' 58" West, a distance of 401.52 feet; thence North 880 59' 05 " West, a distance of 280.00 feet; thence North 090 50' 20" East, a distance of 1001.80 feet to the point of curvature of a circular curve to the left; thence Northerly, along the arc of said curve, having a radius of 220.00 feet, an arc distance of 201.04 feet; thence North 61' 47' 33" East, a distance of 448.95 feet; thence South 390 51' 47" East, a distance of 180.88 feet to an intersection with the arc of a circular curve to the right, having a radius of 335.00 feet and whose radius point bears South 370 49' 54" East, from the last described point; thence Easterly along the arc of said curve, an arc distance of 76.60 feet to an intersection with the arc of a circular curve to the left; thence Northerly and Westerly along the arc of said curve, having a radius of 300.00 feet, and whose radius point bears South 890 57' 07" West, from the last described point, an arc distance of 250.54 feet to the point of tangency; thence North 470 53' 50" West, a distance of 541.03 feet; thence North 00 01' 37" West, a distance of 410.00 feet; thence North 88' 59' 10" West, parallel with and 53.00 feet South of as measured at right angles to the North line of said Section 8, being further described as the South Right -of -Way line of McNab Road, a distance of 100.00 feet; thence South 00 01' 37" East, a distance of 130.61 feet; thence Southwesterly along the arc of a circular curve to the right, whose radius point bears North 880 59' 10" West, from the last described point and having a radius of 1280.00 feet, an arc distance of 999.70 feet; thence North 570 59' 05" west, a distance of 7.45 feet; thence South 32' 00' 55" West, a distance of 45.00 feet; thence South 570 59' 05" East, a distance of 162.90 feet to the point of curvature of a circular curve to the right; thence Southerly along the arc of said curve, having a radius of 175.00 feet, an arc distance of 230.77 feet to the point of tangency; thence South 170 34' 17" West, a distance of 147.61 feet to the point of curvature of a circular curve to the left; thence Southerly, along the arc of said curve, having a radius of 375.00 feet, an arc distance of 172.37 feet to the point of tangency; thence South 08' 45' 52" East, a distance of 541.39 feet to the point of curvature of a circular curve to the right; thence Southwesterly, along the arc of said curve, having a radius of 100.00 feet, an arc distance of 143.00 feet to the point of tangency; thence South 730 09' 58" West, a distance of 117.65 feet to the point of curvature of a circular curve to the right; thence Northwesterly along the arc of said curve, having a radius of 75.00 feet, an arc distance of 137.16 feet to a point of reverse curve; thence Northwesterly along the arc of a circular curve to the left, having a radius of 125.00 feet, an arc distance of 78.86 feet to the point of tangency; thence North 38' 11' 55" West, a distance of 264.30 feet; thence North 010 00' 55" East, a distance of 445.00 feet; thence North 88' 59' 05" West, a distance of 100.00 feet; thence North 670 23' 29" West, a distance of 189.57 feet to the point of curvature of a circular curve to the right; thence Northwesterly, along the arc of said curve, having a radius of 385.00 feet, an arc distance of 245..84 feet; thence South 590 11' 39" West, a distance of 375.88 feet to the point of curvature of a circular curve to the left; thence Southwesterly, along the arc of said curve, having a radius of 1420.00 feet, an arc distance of 517.41 feet to the point of tangency; thence South 38' 19' 01" West, a distance of 177.12 feet to a point on the arc of a circular curve to the right, whose radius point bears South 470 40' 39" West, from the last described point; thence Southeasterly, along the arc of said curve, having a radius of 830.00 feet, an arc distance of 39.14 feet; thence North 65' 52' 56" East, a distance of 711.17 feet; thence 30 Temp. R-1 #13788 EXHIBIT "B" CONTINUED North 590 11' 39" East, a distance of 195.30 feet to the point of curvature of a circular curve to the right; thence Easterly, along the arc of said curve, having a radius of 90.00 feet an arc distance of 129.76 feet to the point of tangency; thence South 380 11' 55" East, a distance of 238.94 feet to the point of curvature of a circular curve to the right; thence South along the arc of said curve, having a radius of 75.00 feet, an arc distance of 51.33 feet to the point of tangency; thence South 01 ° 00' 55" West, a distance of 199.51 feet to the point of curvature of a circular curve to the left; thence Southeasterly, along the arc of said curve, having a radius of 110.00 feet, an arc distance of 51.87 feet to the point of tangency; thence South 260 00' 00" East, a distance of 31.57 feet to the point of curvature of a circular curve to the right; thence Southerly along the arc of said curve, having a radius of 200.00 feet, an arc distance of 94.30 feet to the point of tangency; thence South 010 00' 55" West a distance of 55.00 feet to the point of curvature of a circular curve to the right; thence Southwesterly, along the arc of said curve, having a radius of 75.00 feet, an arc distance of 146.59 feet to the point of tangency; thence North 670 00' 00" West, a distance of 144.50 feet to the point of curvature of a circular curve to the left; thence Northwesterly along the arc of said curve, having a radius of 350.00 feet, an arc distance of 134.30 feet to the point of tangency; thence North 880 59' 05" West, a distance of 687.55 feet to a point on the arc of a circular curve to the left, whose radius point bears South 690 41' 30" West, from the last described point; thence Northwesterly, along the arc of said curve, having a radius of 770.00 feet, an arc distance of 185.01 feet; thence South 530 00' 40" West, a distance of 140.37 feet to a point of curvature of a circular curve to the right; thence Westerly, along the arc of said curve, having a radius of 75.00 feet an arc distance of 90.45 feet to the point of tangency; thence North 570 53' 23" West, a distance of 92.88 feet to the point of curvature of a circular curve to the left; thence Westerly, along the arc of said curve, having a radius of 250.00 feet an arc distance of 167.23 feet to the point of tangency; thence South 830 47' 04" West, a distance of 421.11 feet; thence South 88° 41' 41" West, a distance of 718.98 feet to the point of curvature of a circular curve to the right; thence Northwesterly, along the arc of said curve having a radius of 140.00 feet, an arc distance of 131.77 feet to the point of tangency; thence North 370 22' 33" West, a distance of 93.81 feet to the point of curvature of a circular curve to the left; thence Northwesterly along the arc of said curve, having a radius of 140.00 feet, an arc distance of 182.44 feet to the point of tangency; thence South 670 57' 31" West, a distance of 152.74 feet to the point of curvature of a circular curve to the right; thence Westerly and Northerly along the arc of said curve, having a radius of 125.00 feet, an arc distance of 267.38 feet; to the point of tangency; thence North 100 31' 03" East, a distance of 170.46 feet to the point of curvature of a circular curve to the left; thence Northerly along the arc of said curve, having a radius of 300.00 feet, an arc distance of 162.91 feet to the point of tangency; thence North 20' 35' 42" West, a distance of 175.39 feet to the point of curvature of a circular curve to the right; thence Northeasterly along the arc of said curve, having a radius of 75.00 feet, an arc distance of 126.46 feet to the point of tangency; thence North 760 00' 35" East, a distance of 218.42 feet to the point of curvature of a circular curve to the right; thence Easterly and Southerly along the arc of said curve, having a radius of 150.00 feet, an arc distance of 323.38 feet to a point of reverse curve; thence Southeasterly, along the arc of a circular curve to the left, having a radius of 110.00 feet, an arc distance 91.05 feet to the point of tangency; thence South 27' 53' 51" East, a distance of 360.00 feet to the point of curvature of a circular curve to the left; thence Southeasterly along the arc of said curve, having a radius of 100.00 feet, an arc distance of 149.45 feet; thence North 200 56' 13" West, a distance of 173.30 feet to the point of curvature of a circular curve to the right; thence Northerly along the arc of said curve, having a radius of 290.00 feet, an arc distance of 236.15 feet to a point of reverse curve; thence Northwesterly along the arc of a circular curve to the left, having a radius of 25.00 feet, an arc distance of 39.91 feet to a point of reverse curve; thence Northwesterly along the arc of a circular curve to the right having a radius of 725.00 feet, an arc distance of 496.68 feet; thence North 880 59' 10" West, a distance of 539.68 feet; thence South 000 00' 51" West, parallel with and 53.00 feet East of, as measured at right angles to the West line of said Section 8, a distance of 1359.73 feet; thence South 88' 59' 05" East, a distance of 5171.68 feet to the point of Beginning. LESS and EXCEPT the following described parcel. Commencing at the Northeast corner of said Section 8; thence South 000 01' 37" East along the East line thereof, a distance of 2637.99 feet; 31 Temp. Re6o#13786 EXHIBIT "B" CONTINUED thence North 880 59' 05" West, a distance of 53.01 feet; thence North 000 01' 37" West, parallel with and 53.00 feet West of, as measured at right angles to the East line of said Section 8, a distance of 134.86 feet to the point of beginning of this description, said point being further described as being the point of curvature of a circular curve to the left; thence Northerly and Westerly along the arc of said curve having a radius of 25.00 feet an arc distance of 39.27 feet to the point of tangency; thence South 890 58' 23" West, a distance of 29.47 feet to a point of curvature of a circular curve to the right; thence Westerly and Northerly along the arc of said curve, having a radius of 575.00 feet an arc distance of 179.25 feet to the point of tangency; thence North 720 09' 58" West, a distance of 1.18 feet; thence North 05' 34' 29" West, a distance of 54.48 feet; thence South 72° 09' 58" East, a distance of 22.83 feet to a point of curvature of a circular curve to the left; thence Southerly and Easterly along the arc of said curve having a radius of 525.00 feet, an arc distance of 163.66 feet to the point of tangency; thence North 89' 58' 23" East, a distance of 29.47 feet to a point of curvature of a circular curve to the left; thence Easterly and Northerly along the arc of said curve, having a radius of 25.00 feet, an arc distance of 39.27 feet; thence South 000 01' 37" East, parallel with and 53.00 feet West of as measured at right angles to the East line of said Section 8 a distance of 100.00 feet to the point of BEGINNING, and also LESS and EXCEPT Parcels "B" and "C", and Road Right -of -Way for Westwood Boulevard West of the Village, as recorded in Plat Book 80, Page 19 of the Public Records of Broward County, Florida. Together with: Parcel "G" of Woodland Lakes, according to the plat thereof, recorded in Plat Book 71, Page 18 of the Public records of Broward County, Florida. Together with: All of Colony West Clubhouse Plat, according to the Plat thereof, recorded in Plat Book 103, Page 36 of the Public Records of Broward County, Florida. Less and Except therefrom two parcels known as Pcls. 109 and 113 of Project 5117 McNab Road Widening from Pine Island Road to University Drive as described in Corporate Warranty deed recorded July 9, 1998 in O. R. Book 28534 at Page 705 of the Public records of Broward County, Florida. 32