HomeMy WebLinkAboutCity of Tamarac Resolution R-2013-115Temp. Reso. 12412
October 9, . 2013
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2013 —
1//X_"1"_
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, APPROVING THE AWARD
FOR RFP NO. 13-25R TO BILLY GASPER 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
Temp. Reso. 12412
October 9, 2013
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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
herein as Exhibit "11) 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
Guidant Management Group, LLC
Temp. Reso. 12412
October 9, 2013
Page 3of5
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 ashort-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
Management, Inc. and
initiated contract negotiations with Kemper Sports
Temp. Reso. 12412
October 9, 2013
Page 4of5
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,
negotiations; and
Inc. withdrew their firm from
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 Bifly 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
Temp. Reso. 12412
October 9, 2013
Page 5of5
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. Reso. 12412
October 9, 2013
Page 6of5
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 2013.
N V I/ \ . V , l
ATTEST:
PATRICIA TEU FEL, C
CITY CLERIC?I
RECORD OF COMMISSION VOTE:
MAYOR TALABISCO el-1
DIST 1: COMM. BUSHNELL � 40--o'
DIST 2: COMM. GOMEZ i4ZiV
DIST 3: COMM. GLASSER
DIST 4: V/M DRESSLER &Ia4,00l
HEREBY CERTIFY THAT I HAVE
APPROVED THIS RESOLUTION
AS TO FORM
CAMyJEL S. GOREN
ITY ATTORNEY
COLONY WEST GOLF COMPLEX
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement") is made as of this 02 day of Z , 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 thAvenue, 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. Cit /Cit : 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
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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 reguired 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
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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.
1. 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,
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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.
2. 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.
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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.
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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 necessary to 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. Marketer 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:
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.
1. 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
20 day following the last day of each month, and annual operating statements
shall be furnished by the 45t" 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.
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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 1 S 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
E'�
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.
a. 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.
b. 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.
I. 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:
1. 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
E
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 S, stems. 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.
i. 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.
7. 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.
J. Operating Expenses and City's Remittance.
1. 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
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).
2. 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
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.
5. 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
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 (51") 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:
1. 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
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
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
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 Aareement.
without the oavment
of a Termination Fee.
Cancellation Fee or
other Penaltyjf, 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
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).
F. 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
r
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.
1 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'ss 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.
ig
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.
7. 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.
1. 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
W
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. D 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;
011
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.
f. 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
authorities, from time to time applicable to the Club or any part thereof regarding
hazardous materials.
G. Bindin . 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 party or parties must be approved by
City prior to such assignment or transfer taking place.
I. 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.
J. 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
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 88t" 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
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.
0. 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
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 Fundiok. 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
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.
City Clerk
Date
ATTEST:
Corporate Secretary
0--2, Y-/�
Dale
(CORPORATE SEAL)
Beth Tal
micnaei L;. L;ernecn, amity manager
Date
1
Date
/C:O. ).0 I . t "�p
as to form and legal sufficiency:
i
n, City Attotney
nm
BILLY CASPER GOLF, LLC
R. Joseph Good
M
resident
o -�4-13
Alexander Elmore, Chief Operating Officer
le#00��41'3
Date
PT1
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 "' 4:t 20�.
ti
W.
Eileen Anderson aDayr
Notary Publio
Commonwsaifh of Virginia
ID 0 7WI846
COMM,My 11kip.11 2015
Signature of Notary Pu-Glia.,
o#fi State e—
N�
i
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
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 $290009000
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 $25000,000
Automobile Liability $1900%000 $2,00%000
Owned and Leased
Hired and Non -owned
Personal Injury Protection Statutory
Liquor Liability $1,000,000 $2,0009000
Storage Tank Liability (If required) $1,000,000 $1,000,000
Pollution Liability $190009000 $2,0009000
Flood Insurance Replacement Cost Building Value
Contractors' Equipment Replacement Cost
Property Insurance Replacement Cost Building Value
(All Risk Peril Policy including HurricaneNVind 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 $29000,000
Workers' Compensation Statutory
Employers Liability
Bodily Injury by Accident $5009000
Bodily Injury by Disease $500,000
Bodily Injury by Disease Policy Limit $5009000
Fidelity Bon, d orFidelity , 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
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 (Genera IN m brel la/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
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 000 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 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
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 160 02' 45" West, a distance of 686.27 feet; thence South 050 34' 29" East, a
distance of 600.52 feet; thence North 72' 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 610 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 880 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 320 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
080 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 380 11' 55" West, a distance of
264.30 feet; thence North 010 00' 55" East, a distance of 445.00 feet; thence North 880 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 380 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 650 52' 56" East, a distance of 711.17 feet; thence
M1
EXHIBIT "B" CONTINUED
North 59' 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 26' 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 880 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 200 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 270 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 880 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
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 89' 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
72' 09' 58" West, a distance of 1.18 feet; thence North 050 34' 29" West, a distance of 54.48 feet;
thence South 720 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