HomeMy WebLinkAboutCity of Tamarac Resolution R-2011-144Temp. Reso. #12141
12/21/11
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2011 - Iq
i .
A RESOLUTION OF THE CITY COMMISSION OF
THE CITY OF TAMARAC, FLORIDA, AUTHORIZING
THE APPROPRIATE CITY OFFICIALS TO
EXECUTE A LICENSING/LEASE AGREEMENT
WITH SANDTRAP MANAGEMENT, INC. FOR THE
OPERATION AND MAINTENANCE OF THE
COLONY WEST GOLF COURSE FOR A PERIOD
OF THREE (3) YEARS WITH ONE FIVE (5) YEAR
RENEWAL; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, CITY is the owner of certain real property located in Broward
County, Florida, known as Colony West also known as the "Leased Premises" or
"Property";
WHEREAS, CITY desires to enter into an agreement with an operator to
carry out the day-to-day operations and maintenance of the Leased Premises;
WHEREAS, Pursuant to an agreement for the purchase and sale of real
property entered into between Edward Rack Corporation and the City of Tamarac,
Section 7.5, the City is entering into this agreement of a period of three (3) years
with one five (5) year renewal;
WHEREAS, the CITY and SMI have negotiated mutually -satisfactory terms
for the Lease for operation and maintenance for the Leased Premises;
WHEREAS, SMI and CITY desire to enter into an agreement to carry out
the intentions of the terms of the Agreement for Purchase and Sale of Real
Property, Section 7.5 and enter into a Lease for the Leased Premises pursuant to
the terms and conditions of this Lease and its Exhibits;
Temp. Reso. #12141
12/21/11
Page 2
WHREASE, the City Commission of the City of Tamarac, Florida deems it
to be in the best interests of the citizens and residents of the City of Tamarac to
approve the Lease Agreement with SandTrap Management, Inc.; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF TAMARAC, FLORIDA:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this
Resolution upon adoption hereof and all exhibits referenced and attached hereto
are incorporated herein and made a specific part of this resolution.
SECTION 2: lease agreement with Sandtrap Management, Inc. is hereby
approved.
SECTION 3: The appropriate City officials are hereby authorized to
execute an Agreement with Sandtrap Management, Inc. to provide operations and
maintenance of certain real property located in Broward County, Florida, known
as Colony West also known as the "Leased Premises" or "Property", a copy of
which is attached hereto as Exhibit 1",
SECTION 4: All Resolutions or parts of Resolutions in conflict herewith
are hereby repealed to the extent of such conflict.
SECTION 5: If any clause, section, other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or
invalid, in part or application, it shall not affect the validity of the remaining
portions or applications of this Resolution.
SECTION 6: This Resolution shall become effective immediately upon its
passage and adoption.
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Temp. Reso. #12141
12/21/11
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PASSED, ADOPTED AND APPROVED this oA�day of ��, G a40//
2011.
PAMELA BUSHNEL
MAYOR
ATTEST:
&4
PETER M. J. HA RQrq ,O , CRM, CMC
CITY CLE�.t OF Tq �'��,
:• 9n % RECORD OF COMMISSION VOTE:
_C ESTg8LIS
O : 7 w ED : ¢ _ MAYOR BUSHNELL
SEA .' DIST 1: COMM. SWENSON
%9'A''•. pQ` DIST 2: COMM GOMEZ �
COUNTY �DIST 3: V/M GLASSER
1/,1,,1100` DIST 4: COMM. DRESSLE
I HEREBY CERTIFY THAT I HAVE
APPROVED THIS RESOLUTION
AS TO FORM.
12-l't 11
- ma �V-' SAM L S. GORE
CITY ATTORNEY
LEASE AGREEMENT
'This LEASE AGREEMENT ("Lease") is made this Adll"day of 2011,
("Effective Date") between the CITY OF TAMARAC ("City") and SANDTRAP
MANAGEMENT, INC., a Florida Corporation ("SMI") ("LESSEE").
1NITNESSETH:.
'WHEREAS, CITY is the owner of certain real property located in Broward County, Florida,
known as, Colony West, which its more specifically described in Exhibit A hereto and
incorporated herein by this reference, and any subsequent Addenda to this Lease after the date
hereof, together with all improvements thereon and appurtenances thereto pertaining
(collectively the "Leased Premises" or "Property");
'WHEREAS, CITY desires to enter into an agreement with an operator to carry out the day -to -
,day operations and maintenance of the Leased Premises;
'WHEREAS, Pursuant to an agreement for the purchase and sale of real property entered into
between Edward Rack Corporation and the City of Tamarac, Section 7.5, the City is entering
into this agreement of a period of three (3) years;
'WHEREAS, the CITY and SMI have negotiated mutually -.satisfactory terms for the Lease for
operation and maintenance of the Leased Premises;
WHEREAS, SMI and CITY desire to enter into an agreement to carry out the intentions of the
terms of the Agreement for Purchase and Sale of Real Property, Section 7.5 and enter into a
Lease for the Leased Premises pursuant to the terms and conditions of this Lease and its
Exhibits; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants, conditions,
and agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
Leased Premises.
(a) CITY hereby.grants to LESSEE the right to occupy, maintain, and operate the
Leased Premises in accordance with the terms and conditions hereinafter set forth in
this Lease Agreement, and LESSEE hereby accepts from the CITY the Leased
Premises for the purposes and under the terms set forth herein.
(b) CITY represents and warrants that all easements, rights of way, deed
restrictions, and other encumbrances, conditions, and restrictions applicable to the
Leased Premises are set forth on Exhibit C hereto.
2. Term.
(a) Term. The term of this Lease shall commence on the date of final purchase and
sale of the real property pursuant to the Purchase and Sale Agreement entered into
between the Edward Rack Corporation and the CITY (Commencement Date) and shall
continue and remain in full force and effect as to all its terms, conditions, and provisions
as set forth herein for a period of three (3) years, ending on December 31, 2014 (the
"Term"), unless sooner terminated by CITY or LESSEE, pursuant to the terms of this
Lease.
(b) Effect of Termination. In the event this Lease is terminated pursuant to Section
23 herein, and subject to the provisions of Section 14,. the LESSEE shall pay CITY for
any unpaid portion of the Annual Lease Fee (as defined below) and Annual Revenue
Share Payments (as defined below) due and owing up to the date of termination. Upon
termination .of this Lease, LESSEE will peaceably yield up to the CITY the premises of
the Leased Premises in good and leasable repair. It is understood and agreed between
the parties that the LESSEE shall have the right to remove from the Leased Premises all
personal property owned by the LESSEE, provided the LESSEE restores the Leased
Premises to as good a state of repair as they were prior to the occupancy, reasonable
wear and tear excepted. The LESSEE shall have no right to remove fixtures that are
incorporated into the structure of the Leased Premises and are a permanent part thereof.
(c) Condition of Leased Premises and Environmental Assessment. The parties shall
conduct a walkthrough of the Leased Premises and document the general conditions of
the Leased Premises prior to operation by LESSEE. The Phase II environmental report
of any consultant employed by CITY to evaluate the Leased Premises shall be reviewed
with the LESSEE prior to the operation by LESSEE.
3. Renewal Option.
Provided LESSEE is not in default at the time of exercise, the parties may mutually
agree to renew this Lease for one (1) term of five (5) years beyond the end of the initial
Term (the "Renewal Term"). LESSEE shall furnish written notice of intent to renew no
later than twelve (12) months prior to the expiration of the applicable Term, failing which,
such renewal right shall bia deemed waived; time being of the essence. CITY and
LESSEE shall determine if they mutually consent to exercising the Renewal Option no
less than six (6) months prior to the expiration of the applicable Term. The terms and
conditions of this Lease during the Renewal Term shall remain unchanged.
4. Lease Fees and Other Requirements.
(a) Annual Lease Fee. Upon commencement of the Term, LESSEE shall pay to the
CITY a fixed annual payment of One Hundred Thousand Dollars ($100,000) to be paid in
equal quarterly payments .of Twenty-five Thousand Dollars ($25,000) on the first day of
March, May, September, and November ("Annual Payment"), beginning on March 1,
2012; One Hundred and Twenty-five Thousand ($125,000) to be paid in equal quarterly
payments cf Thirty-one Thousand Two -Hundred Fifty Dollars ($31,250) on the first day
of March, May, September, and November, beginning on March 1, 2013; and One
Hundred and Fifty Thousand ($150,000) to be paid in equal quarterly payments of Thirty-
seven Thousand, Five Hundred ($37,500) on the first day of March, May, September
and November, beginning on March 1, 2014. The Annual Payment shall constitute the
base fee ("Annual Lease Fee") under this Lease and shall be deposited into the "Capital
Escrow Account" without notice, set off, deduction or demand.
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(i) "Capital Escrow Account" shall mean a bank account established by the
CITY with a local commercial bank. All funds therein shall be the sole
property of the CITY. The expenditure of monies so deposited and
interest earned thereon, if any, shall be made based upon the CITY'S
decision after, consultation with the LESSEE as to desired improvements
following LESSEE's written submission for capital improvements. All
such funds shall be spent for CITY desired projects to improve golf
recreation at Colony West and any structural repairs or replacements to
the buildings or premises as outlined in Paragraph 10C. Upon expiration
or sooner termination of this Agreement for any reason, all monies
remaining in the Capital Escrow Account, including interest earned
thereon, shall belong to the CITY.
(bb.) Annual Revenue Share Payments. In addition to the Annual Lease Fee, LESSEE
shall annually during the Term of this Lease (as it may be renewed or extended),
beginning with the commencement of this agreement, deposit into the "Capital
Escrow Account" as described above in (i), on or before March 15 of each
subsequent year, commencing March 15, 2013, the Annual Revenue Share of
"Gross Revenues" in the amount and in the manner as described below in
subparagraph (i).
(i) "Gross Revenues" shall mean the total annual revenue from greens
fees, motorized cart fees, annual pass fees and any other golf course
fees not specifically described and total annual revenue generated from
golf shop retail sales, food and beverage retail sales, catering, and room
rental fees, fees generated from activities held as a result of the room
rentals, and any other revenue not specifically described. The Gross
Revenues shall generate a Revenue Share Payment to the CITY equal to
the following schedule:
6% of Gross Revenue between $3,000,000 and $3,500,000
11 % of Gross Revenue between $3,500,001 and $4,000,000
15% of Gross Revenue between $4,000,001 and $4,500,000
20% of Gross Revenue greater than $4,500,001
Late Fees. For any Annual Lease Fee Payment, Annual Revenue Share
Payments or Capital Contribution that is received ten (10) days after the
respective payment is due, the CITY shall have the right, at its option and without
any further demand or notice, to require a late payment charge equal to Five
percent (5%) of the delinquent amount, and LESSEE shall be obligated to pay
the same immediately upon receipt of CITY'S written invoice therefore. For any
other payment required to be paid under this Lease that is not received ten (10)
days after the respective due date, the'City shall have the right, at its option and
without any further demand or notice, to charge interest thereon at the rate of
One percent (1.0%) per month until paid. Provided however, that this Section
4(c) shall not be applicable if or to the extent that the application thereof would
affect the validity of this Lease Agreement.
(d) Fiscal Year. The fiscal year for the LESSEE and operations of the Leased
Premises will be from January 1 to December 31 of each calendar year.
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(e) Gross Revenue. "Gross Revenue" means the total gross monies received by
LESSEE from the use or operation of the Leased Premises, including but not
limited to revenue received from the sales of goods or provision of services at or
on the Leased Premises; provided however, Gross Revenue does not include the
following:
(i) Cash refunds or credits allowed from suppliers on returns by customers;
(ii) Sales tax, excise tax, gross receipts tax, admission tax, use tax, and
other similar taxes now imposed upon the sales of food, beverages,
merchandise, or whether added to or included in the selling price;
(iii) The portion of fees charged for golf lessons and instruction that are
retained by the golf professional giving lessons or instruction (including
both instances where the fees, or portions thereof, are paid directly to the
golf professionals and where the golf professionals receive payments
based on the fees received from lessons or instruction);
(iv) The actual uncollectible amount of any check or draft received by
LESSEE as payment for goods or services and returned to LESSEE from
customer's bank as uncollectible (commonly referred to as non -sufficient
funds); provided that LESSEE has used reasonable efforts to collect such
amount;
(v) The actual uncollectible amount of any charge or credit account
(commonly referred to as bad debts) incurred by LESSEE for the sale of
merchandise or services; provided that LESSEE has used reasonable
efforts to collect such amount;
(vi) Receipts in the form of refunds from or the value of merchandise,
supplies or equipment returned to the shippers, suppliers, or
manufacturers;
(vii) The amount of any cash or quantity discount or rebates received from
sellers, suppliers, or manufacturers;
(viii) The amount of any gratuities paid or given by the customer to or for
employees of LESSEE;
(f) Financial Statements and Right to Audit.'LESSEE will maintain accounting books
and records in accordance with generally accepted accounting principles as
applied to similar enterprises. LESSEE shall provide financial statements to the
CITY by operating division and in the aggregate on a monthly basis no later than
the 15th day following month end. LESSEE agrees that the CITY, or its designee,
may inspect, audit, and examine, at its cost, the gross revenue portion of such
books and records for the purpose of determining the accuracy of the Annual
Revenue Share Payments and the Capital Improvement Fund at reasonable
times during the LIESSEE's regular business hours. Said records shall be
subject to the public records law, Chapter 119 F.S.
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(g) Books and Records. LESSEE and its subcontractors, if any, shall maintain all
books, documents, papers, accounting records and other evidence pertaining to
costs incurred in the operation of the Leased Premises and shall make such
materials available at all reasonable times, during the period of this Agreement
and for two (2) years from the date of final payment under this Agreement, for
inspection and/or audit by the CITY. Said records shall be subject to the public
records law, Chapter 119 F.S.
(h) Monthly Capital Contribution. Commencing with the Commencement Date, and
effective for purposes of calculating Monthly Capital Contribution ("Monthly
Capital Contribution") in the Colony West Golf Course for each subsequent
month, the Monthly Capital Contribution payment shall be One percent (1%) of
Gross Revenues for 2012 and 2013 and Two percent (2%) of the Gross
Revenues for 2014 and any subsequent renewals of this Lease. LESSEE shall
use the Annual Capital Contribution to pay for the improvements, repairs, and
replacements in its Annual Capital Improvement Plan. LESSEE shall develop
and submit a proposed Annual Capital Improvement Plan to the CITY not later
than November Vt each year for the following Calendar Year. The CITY may
submit written comments to the LESSEE about the proposed plan up to 60 days
following receipt of the plan from LESSEE. In accordance with the comments
from the CITY, the LESSEE shall revise the Annual Capital Improvement Plan
and submit to the CITY for final approval before any capital improvements are
made. Final Approval of the Annual Capital Improvement Plan by the CITY shall
not be unreasonably withheld.
Said Monthly Capital Contribution shall be computed and paid on or before the
10th day of each calendar month of the term of this Lease. Said Monthly Capital
Contribution amount shall be held in an interest bearing account with a local
lending institution, in trust, and shall be used only for the purposes expressed
herein as funding for the Annual Capital Improvement Plan.
Golf cart replacement shall not count towards LESSEE Annual Capital
Contribution obligations.
�(
C In addition to the monthly capital contribution amount, the LESSEE shall make one time Capital Improvement Fund Contributions to the Capital Escrow Account
�Y of $80,000 one 1, 2013, and $110,000 on 11, 2014.
cn�srlxi�ti t �% ��acb�t
(i) Initial Capital Investment: In the first year of the Term, LESSEE shall make an
Initial Capital Investment in amount not less than Twenty -Five thousand dollars
($25,000) after review and prioritization of the facility needs within but not limited
to the following categories; New Golf Cart Fleet, New Signage, New Course
Supplies, Irrigation and Drainage Upgrades, Re -grassing of Greens and Tees,
Bunker Renovation, Cart Paths, and Clubhouse Renovations. If any capital
improvement that is part of LESSEE's Initial Capital Improvement Plan cannot
reasonably be completed in one year from the Effective Date, then LESSEE may
have up to one additional year to complete that capital improvement. In all
instances, however, LESSEE shall use commercially reasonable diligence and
its good faith efforts to complete the Initial Capital Improvements without delay.
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(j) Capital Improvements: All reference to "Capital Improvements" in this Agreement
shall include all equipment, machinery, projects, building systems and all
improvements, repairs, projects or replacements which have an expected useful
life of a period of at least one (1) year and which cost in excess of Five Thousand
Dollars ($5,000). Expenditures for routine and ordinary repairs and maintenance
shall not be considered capital improvements.
If the City or other public or private entities wish to provide additional
contributions or donations toward the cost of capital improvements, repairs, and
replacements at the Facilities, and if LESSEE and City both wish to accept the
contribution or donation, then (1) the entity making the contribution or donation
must deposit the funds in an account separate from the Capital Escrow Account
and subject to, the mutual control of the City and LESSEE, as to the project and
cost, and (2) subject to Applicable Laws, LESSEE shall have complete control
over all other aspects of the completion of the improvements, repairs, and
replacements, including but not limited to the plans, specifications, scope,
contractors, and timing of the improvements. LESSEE may limit the scope and.
timing of capital improvements, repairs, and replacements funded by the City, or
other public or private entities in order to ensure the work does not materially
impair the public's access to use of the Facilities, and to ensure the work does
not impose additional costs on LESSEE.
(1) Limit of LESSEE's Obligation for Capital Improvements and Repairs. LESSEE's
obligation to make capital improvements, repairs, or replacements under this
Lease Agreement is limited to:
0) LESSEE's Initial Capital Investment,
(ii) the Monthly Capital Contribution amount, and
(iii) insurance proceeds paid to LESSEE (or paid to the City and provided by
City to LESSEE) in connection with any casualty to any of the Facilities or
LESSEE'S Equipment.
(k) Operational Audit. CITY and LESSEE agree that an Operational Audit of the
Golf Course Operations to include Restaurant and Bar Operations, Pro Shop
Operations, and Golf Course Operations shall be conducted by the National Golf
Foundation one year following the Commencement Date of this Agreement.
CITY and LESSEE agree to share equally in the cost of this Operational Audit
with one-half,paid by CITY and one-half to be paid by LESSEE.
(1) Waiver of Fees during CITY Default: During any period of the CITY's default, all
fees provided by this Section 4 shall be waived (and all such fees shall be
prorated to account for such period of default), pursuant to the terms of
Subsection 22(b)(i).
5. Use of the Leased Premise;>.
(a) Use. The Leased Premises are to be used for the purposes set forth herein only
and no other use is permitted without the prior written consent of CITY, which
consent may be withheld at the absolute discretion of CITY. LESSEE will use its
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best efforts not to make any unlawful, improper or offensive use of the Leased
Premises or any use: or occupancy thereof contrary to the laws of the State of
Florida now or hereafter made. Without qualifying the generality of the foregoing,
it is specifically understood that no hazardous substances, or petroleum products
will be stored or brought into the Leased Premises except those necessary for
the customary maintenance of the Leased Premises and those necessary for
LESSEE's operations conducted in the Leased Premises provided same are
used, stored and disposed of in accordance with all applicable laws, rules,
ordinances and regulations.
(b) Rubbish Removal. LESSEE shall, at LESSEE's sole cost and expense, keep the
Leased Premises clean, both inside and outside, and will remove all refuse from
the Leased Premises. LESSEE agrees to keep all accumulated rubbish ifr
covered containers to have same removed regularly from the Leased Premises.
LESSEE shall not burn any materials or rubbish of any description upon the
Leased Premises.
(c) Golf Fees and Other Fees and Pricing. Throughout the Term hereof, all prices
charged, including but not limited to greens fees, cart fees, merchandise prices,
food and beverage prices will be .posted on the Leased Premises at those
locations customary for daily -fee golf courses. Throughout the Term hereof,
LESSEE may modify fees and pricing in its sole discretion, including
establishment of new periods, classifications and categories as it deems
necessary and appropriate for the effective. operation of the Leased Premises.
LESSEE will exercise care in maintaining competitive fees and pricing in the
operation of the Leased Premises.
(d) Free Golf Rounds, LESSEE may from time to time offer free golf rounds as part
of a marketing strategy. Nothing in this Section limits or waives LESSEE's
compliance with the other provisions of this Lease Agreement, including but not
limited to payment of the Annual Lease Fee, payments of the Annual Revenue
Share, payment of Monthly Capital Contribution, and LESSEE's maintenance
obligations. Any free rounds of golf provided by LESSEE under this Section are
not part of LESSEE's Gross Revenues under this Lease Agreement.
(e) Coordination and Services Provided by CITY. CITY shall designate a
Representative who will, on behalf of the CITY, coordinate with LESSEE and
administer this Lease, according to the terms and conditions contained herein and
in the Exhibits hereto. It shall be the responsibility of LESSEE to coordinate with
the designated CITY's Representative to the extent provided herein. The CITY's
Representative shall be the Director of Financial Services.
6. Taxes. The LESSEE shall make an annual payment of Fifty -Four Thousand Dollars
($54,000) to the City no later than November 1st for each Calendar Year of the Term and
Renewal Term in lieu of the City's portion of any real estate ad valorem taxes or other
real property taxes and assessments, including roll -back taxes payable on the Leased
Premises; personal property taxes payable on any personal property which is owned by
the LESSEE included in the., Lease granted herein; Fire Rescue Assessment; recording
taxes for recordation of this Lease agreement or any amendment or memorandum
thereof; or any interest, fees, or penalties owing with respect to any of the foregoing. If at
any time during the term of this Agreement or any Renewal Term of this Agreement,
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Broward County or other jurisdiction levies ad valorem or real estate taxes on the
property in excess of Fifty -Four Thousand Dollars ($54,000) per annum ("Excess Tax
Amount"), the parties agree to meet and discuss 'potential modifications to this
Agreement. If LESSEE and the CITY are unable to mutually agree on modifications to
this Agreement within Sixty (60) days after both parties are made aware of such Excess
Tax Amount, either party may terminate this Agreement with 60 days written notice to
the other party.
It is agreed that the above items, hereinafter referred to as "Taxes," shall not be in any
way construed to include any federal, state or local income taxes assessed against
either CITY or LESSEE.
'7. Notices. All notices under this Lease shall be delivered by certified mail, returnreceipt
requested, or by other delivery with receipt to the following:
As to the CITY:
Michael C. Cernech
City Manager
7525 NW 88th Avenue
Tamarac, Florida 33321-2401
Tel: (954) 597-3510
Fax: (954) 597-3520
Email: Michael. CernechOltamarac.ora
With a copy to:
Samuel Goren, Esq.
GOREN, CHEROF, DOODY & EZROL, P.A.
City Attorney
3099 East Commercial Blvd, Suite 200
Fort Lauderdale, Florida 33308
Tel: (954) 771-4500
Fax: (954) 771-4923
Email: Sgoren@cityatty.com
Mark C. Mason, CPA
Director of Financial Services
7525 NW 88th Avenue
Tamarac, Florida 33-321-2401
Tel: (954) 597-3571
Fax: (954) 597-3560
Email: Mark. MasonCccbtamarac.ora
As to the LESSEE:
c/o Sandtrap Management, Inc.
6800 NW 88th Avenue
Tamarac, FL 33321
8
Attn.: Norman Rack
Phone No.
Facsimile No.
With a Copy to:
B. Laws. Ordinances and Regulations. LESSEE hereby covenants and agrees to comply,
at its sole expense, with all applicable federal, state and local laws, rules, ordinances
and regulations. Except as set forth below, LESSEE's covenant to comply also applies
to any maintenance, repair, replacement, alteration, construction, improvement or other
change to the Leased Premises. Notwithstanding anything to the contrary in this
Section, LESSEE's obligation to comply with all laws, rules, ordinances, regulations and
any other similar directives mentioned in this Section, shall be limited to those requiring
compliance because of LESSEE's particular use of the Leased Premises.
9. Signage. All signage on the Leased Premises shall be incompliance with applicable City
code requirements. As a minimum, such signage shall reflect the name of the golf
course. That signage will continue in place and in effect during the term of that
agreement.
10. Utilities and Maintenance.
(a) Utilities.
(i) LESSEE shall pay the cost of water, sewer, . storm water fees, gas,
electricity, fuel, light, heat, power, and all other utilities or services
furnished to the Leased Premises or used by LESSEE in conjunction
therewith; provided, however, the CITY shall be responsible for any costs
or expenses for maintenance and repair of any equipment or
infrastructure used in connection with or necessary to supply water up to
the installed water metering equipment. LESSEE, as the previous owner
of the property, is liable for any bills, fees, invoices, utilities, agreements
or other charges related to the operation of the Facilities prior to the
Commencement Date of this Lease Agreement.
(ii) LESSEE will maintain irrigation records and make such records available
to CITY representatives.
(iii) The LESSEE shall pay all fees associated with the purchase of public
utility supplies, water and any other costs for water usage that may be
legally binding for such water usage, for irrigation or other uses including
potable uses, as may be imposed by the city, county, state or federal
governments, commissions or authorities.
(iv) LESSEE shall pay all charges for trash collection services or other
sanitary services rendered to the Leased Premises or used by LESSEE in
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connection therewith, unless LESSEE has contracted directly for such
services which will be billed directly to and paid by LESSEE. LESSEE
hereby agrees not to place hazardous or toxic substances or materials in
the trash collection facilities, wastewater or sewage systems provided by
CITY.
(b) LESSEE's Obli ations-of Maintenance. Repair and Replacement. LESSEE shall,
at LESSEE's sole cost and expense, keep the Leased Premises and every part
thereof in condition as set forth in Exhibit C.. If LESSEE refuses to properly carry
out any maintenance, repair and replacement as required to the reasonable
.satisfaction of CITY, CITY may, but shall not be obligated, upon ten (10) days
prior written notice (except in the case of emergency) perform such maintenance,
repair and replacement without being liable for any loss or .damage that may
result to LESSEE's merchandise, fixtures or other, property except loss or
damage resulting from Lessor's gross negligence or willful or intentional action;
and LESSEE shall pay to the CITY'upon demand the CITY's cost relating to any
such maintenance, repairs and replacements, plus interest at the rate of Ten
Percent (10%) per annum. LESSEE agrees that the performance of any
maintenance, repair and replacement by the CITY pursuant to this section is not
a re-entry or a breach of any covenant for quiet enjoyment contained in this
Lease.
(c) 'CITY's Obligation of Repair and Replacement. CITY shall, at CITY's sole cost
and expense, make any and all structural repairs required to or replacements of
the clubhouse, maintenance buildings, storage buildings, and other permanent
structures of the Leased Premises, subject to budgeting for such purpose in the
CITY's legislative discretion in any budget year, so long as such repairs or
replacements are not caused by an event or condition against which the LESSEE
is required to provide: insurance pursuant to Section 19 below. If the CITY fails to
properly carry out any such repair or replacement as required to the reasonable
satisfaction of LESSEE, LESSEE may, but shall not be obligated, upon ten (10)
days prior written notice to CITY (except in the case of an emergency) perform
such repair or replacement and CITY shall pay to LESSEE upon demand
LESSEE's costs relating to any such repair or replacement, plus interest at the
rate of ten percent (110%) per annum.
In the event that no satisfactory resolution can be reached between the parties
regarding either party's obligation of repair and replacement, either party may
request mediation of any disagreement and the parties will cooperate together to
jointly fund a mediator and participate in the mediation with a goal to resolving
the differences between them.
11. Contractors Liens. LESSI=E shall (a) immediately after it is filed or claimed; have
released (by bonding or otherwise) any contractors, materialman's or other lien filed or
claimed against any or all of the Leased Premises, or any other property owned or
Leased by CITY, by reason of labor or materials provided for LESSEE or any of its
contractors or subcontractors, or otherwise arising out of LESSEE's use or occupancy of
the Leased Premises, and (b) defend, indemnify and hold harmless CITY against and
from any and all liability, claim of liability or expense (including, without limitation,
reasonable attorneys' fees) incurred by CITY on account of any such lien or claim
caused by LESSEE. Nothing in the provisions of this Lease shall be deemed in any way
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to give LESSEE any right, power or authority to contract for or permit to be furnished any
service or materials which would give rise to the filing of any contractors or
materialmen's lien against CITY's estate or interest in and to the Leased Premises, it
being expressly agreed that no estate or interest of CITY in and to the Leased Premises
shall be subject to any lien arising in connection with any alteration, addition or
improvement made by or on behalf of LESSEE.
12. Quiet Enjoyment. The CITY covenants and agrees that LESSEE, upon paying the
payments due herein and performing the covenants herein required, shall and may
peaceably and quietly hold and enjoy the Leased Premises for the term aforesaid
subject, nevertheless, to the terms of this Lease and to any Leases, agreements and
encumbrances to which this Lease is or may be made subordinate. LESSEE shall have
complete control over all other aspects of the completion of the improvements, repairs,
and replacements, including but not limited to the plans, specifications, scope, and
timing of the improvements. LESSEE may limit the scope and timing of capital
improvements, repairs, and replacements funded by the City, or other public or private
entities in order to ensure the work does not materially impair the public's access to use
of the Facilities, and to ensure the work does not impose additional costs on LESSEE.
13. CITY's Right to Inspect and Enter. The CITY shall have the right, at reasonable times
and with reasonable notice during the term of this Lease (or at any time in the event of
an emergency), to enter the Leased Premises for the purpose of examining or inspecting
same. Any repairsor alterations therein must be mutually agreed to by CITY and
LESSEE.
14. Fire or Casualty.
(a) If any portion of the Leased Premises are damaged by fire, wind, water,
hurricane or other casualty, CITY may, at CITY's option and, if CITY has elected
to purchase insurance to cover such obligations, only to the extent that the
insurance proceeds available to CITY are adequate to fully pay the costs of such
repair and restoration, repair the damage and restore .the Leased Premises
(excluding LESSEE's alterations and improvements and personalty), to their
condition existing immediately prior to the occurrence of the casualty. In the
event CITY repairs the damage and restores the Leased Premises (excluding
LESSEE's alterations, improvements and personalty), LESSEE shall promptly
make at its sole cost and expense all other repairs and. replacements to the
Premises which are required to restore the Premises to substantially the same
condition existing immediately prior to such casualty.
(b) If CITY does not elect to repair or rebuild, the CITY may terminate this Lease by
giving written notice to LESSEE within thirty (30) days of the occurrence of the
casualty. If CITY elects not to repair or rebuild, or such repairs cannot be
completed within a ;sixty (60) day time period starting on the day such damage
occurs, or the insurance proceeds are insufficient to fully restore the Leased
Premises, then LESSEE, at its sole option, may, upon written notice to the CITY,
terminate this Lease.
(c) The Annual Lease Fee, Annual Capital Contribution, and Annual Revenue Share
Payments shall abate from the date of the damage or casualty in proportion to
the impairment of the use that LESSEE can reasonably make of the Leased
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Premises until the Leased Premises are restored or until the Lease is terminated
in accordance with this Section 14. The CITY shall not be liable, regardless of
cause, for any inconvenience or interruption of the business of LESSEE
occasioned by fire or other casualty.
15. Condemnation. If any material part of the Leased Premises is taken'by eminent domain
or condemnation or voluntarily transferred to such authority under the threat thereof, this
Lease shall not terminate automatically, but LESSEE may, at its sole option, terminate
the Lease by giving written notice to CITY within forty-five (45) days after the taking.
After such taking and as of such date and as long as the Lease is not terminated, the
rent will be abated in proportion to the impairment of the use that LESSEE can
reasonably make of the balance of the Leased Premises, it being expressly
acknowledged by both panties hereto that the successful operation of the Leased
Premises requires a fully operational clubhouse and 18 playable golf course holes. If the
Leased Premises are damaged, or if access to the Leased Premises is impaired by
reason of such taking, and LESSEE elects not to terminate this Lease as provided
herein, CITY will promptly rebuild or repair the damage to the extent possible within the
limitations of the available condemnation award. LESSEE hereby affirms any and all
rights it may have in all condemnation awards. The parties hereby agree that, upon
condemnation of part or all of the Leased Premises, LESSEE shall be entitled to receive
compensation equal to the amount that it would be entitled to receive as a tenant with full
rights to diminution in the value of its leasehold estate, ' including but not limited to the
cumulative Capital Improvements expended (as set forth in Exhibit C) between the
Commencement Date and date of condemnation.
16. Assignment and Sub -Lease:. Except as provided for in Section 28, LESSEE shall not
transfer, hypothecate, mortgage, pledge, assign or convey its interest in the Lease or
sublet the Leased Premises or any part thereof. Florida law does not allow assignment
of a Lease in real property. Granting a security interest in this Lease pursuant to Section
28 is permissible. LESSEE will continue to be responsible for all obligations under this
Lease.
17. Holdover. Any holding over by LESSEE after the expiration of this Lease shall be
construed as a tenancy at sufferance (unless such occupancy is with the written consent
of the CITY) in which event LESSEE will be a LESSEE from month to month, upon the
same terms and conditions of this Lease, except at a Base Lease Fee for such holdover
period of 110% of the Base Lease Fee in effect for the Fiscal Year preceding such
holdover. Acceptance by the CITY of the Lease Fee after such termination shall not
constitute a renewal.
18. Indemnity and Waiver.
(a) LESSEE's Indemnity. LESSEE agrees to indemnify CITY, its officers, employees,
agents and contractors, against any and all claims, debt, demands, obligations,
costs , fines or losses incurred by or which may be made against CITY or against
CITY's title in the Leased Premises arising by reason of (i) The failure by LESSEE
to perform any covenant required to be performed hereunder; (ii) Any accident,
injury or damage .that; shall happen in or about the Leased Premises or the Building
resulting from any negligence, wrongful act or omission of LESSEE or LESSEE's
officers, agents, employees, patients, invitees, or Lessees, or resulting from the
condition, maintenance or operation of the Leased Premises by LESSEE; (iii) The
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failure of LESSEE to comply with any statute, law, ordinance, rule or regulation or
any other requirement of any controlling governmental authorities; any lien or
security agreement filed against. the Leased Premises on account of labor,
materials or services supplied to or for LESSEE; or (iv) Any attorneys' fees
incurred by CITY in connection with any of the foregoing regardless of whether
such attorneys' fees are incurred in legal proceedings or otherwise.
If it becomes necessary for CITY to defend any action seeking to impose any such
liability, LESSEE will pay CITY all costs of court and reasonable attorneys' fees
incurred by CITY in such defense, in addition to any other sums which CITY may
be called upon to pay by reason of the entry of a judgment or decree against CITY
in the litigation in which such claim is asserted.
LESSEE's obligations to indemnify set forth herein shall survive termination of this
Lease Agreement.
(b) CITY'S Indemnity. Nothing contained herein is intended nor shall be construed to
waive CITY's rights and immunities under the common law or Florida Statutes
768.28, as amended from time to time.
19. INSURANCE
(a) Insurance Required of LESSEE
Lessee shall obtain at Lessee's expense all necessary insurance in such form
and amount as specified in Exhibit D or as required by the City's Risk and Safety
Manager before beginning work under this Lease Agreement including, but not
limited to, Property, Boiler and Machinery, Contractor's Equipment,
HurricaneNNind, Workers' Compensation, Commercial General Liability,
Automobile, Pollution Liability, Storage Tank, Liquor Liability, Flood Insurance
and all other insurance as required by the City, including Business Income,
Builder's Risk/Installation Floaters, Director's and Officer's (D&O) and
Professional Liability when appropriate. The Lessee shall maintain such
insurance in full force and effect during , the life of this Agreement and shall
provide to the City's Risk and Safety Manager certificates of all insurances
required under this Agreement prior to commencement. The Licensee will ensure
that all subcontractors and vendors doing business comply with the above
guidelines and will retain all necessary insurance in force throughout the term of
this agreement.
Lessee shall indemnify and hold the City harmless for any damages resulting
from failure of the Lessee to take out and maintain such insurance. Lessee's
Liability Insurance policies shall be endorsed to add the City as an additional
insured. Lessee shall be responsible for payment of all deductibles and self-
insurance retentions on Lessees Insurance policies.
All personal property, of LESSEE located in the Leased Premises shall be placed
therein at LESSEE'Ss sole risk and CITY shall have no liability for any loss or
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damage suffered to such personal property, and vehicles unless such damage is
proximately caused by the negligence of CITY. LESSEE shall also procure and
maintain a comprehensive property policy, including special perils insuring all of
LESSEE'S property and all improvements in an amount which will insure the
replacement value of LESSEE'S property and the improvements. If LESSEE has
any equipment in the Leased Premises which emits any radiation or any other
substance, LESSEE'S insurance policy shall insure against all personal injuries
and property damage resulting from the emissions exposure.
Any insurance policies hereunder shall name CITY as an additional insured, and
LESSEE will furnish CITY evidence of such insurance coverage by way of an
endorsement to same or a certificate of insurance no later than (10) days prior to
the Effective Date, unless otherwise sooner requested by CITY. All such
insurance will be with an insurance carrier acceptable to CITY, and who must
have a rating of no less than A-VII per A.M. Bests Key Bating Guide and be
licensed to do business in the State of Florida. All such insurance policies may
not be modified or terminated without sixty (60) days' prior written notice to CITY.
The Lessee shall name the City as a Loss Payee for the Real Property or any
other City owned property.
Upon the default of LESSEE in effecting any such insurance, CITY may procure
any such comparable insurance, and/or pay the premiums andother charges
incidental thereto, and any and all reasonable amounts so paid by CITY, together
with the interest thereon from the date of such payment, at the rate of 10% per
annum, shall be additional rental hereunder, and shall be paid with the next and
subsequent installment of Rent, which shall become due after such payment by
CITY, it being expressly agreed that the payment by CITY of any such premium
shall not be deemed to waive or release the default in the payment thereof by
LESSEE, or the right of CITY to take such action as may be permissible
hereunder, as is the case of default in the payment of Rent.
LESSEE will cooperate with CITY and' CITY will cooperate with LESSEE and any
mortgagee in connection with the collection of any insurance monies that may be
due in the event of loss, and will execute and deliver to CITY and any mortgagee
such proofs of loss, and any other instruments that may be required for the
purpose of facilitating the recovery of any such insurance monies, and in the event
that LESSEE shall fail or neglect to so cooperate or to execute, acknowledge, and
deliver any such instrument, CITY in addition to any other remedies, may, as the
agent or attorney in fact of LESSEE, execute and deliver any proofs of loss, and
any other instruments as may be desirable to CITY and any mortgagee, for the
collection of such insurance monies, and LESSEE hereby irrevocably nominates,
constitutes and appoints CITY, LESSEE'S proper and legal attorney in fact for
such propose, hereby ratifying all that CITY may do as such attorney in fact of
LESSEE. CITY will cooperate with LESSEE and any mortgagee in the same
manner and to the slime extent as LESSEE is required to cooperate hereunder.
CITY does not waive sovereign immunity.
20. Non -Discrimination & Equal Opportunity Employment. During the performance of the
LEASE, the LESSEE shall not discriminate against any employee or applicant for
employment because of race, color, sex, religion, age, national origin, marital status,
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political affiliation, familial status, sexual orientation, or disability if qualified: The
LESSEE 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.
The LESSEE 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. The LESSEE further agrees that he/she
will ensure that Sub -Lessee's, if any, will be made aware of and will comply with this
nondiscrimination clause.
21. Access and Operation. LESSEE shall have access to the Leased Premises at all hours
of the day or night. LESSEE understands and agrees that CITY shall have no duty to
provide security services to LESSEE or the Leased Premises and LESSEE shall look to
the public police force, independent security services or the like, for security protection.
22. Default.
(a) Events of Default by LESSEE. The following shall be deemed events of default
by Lessee: (i) LESSEE shall fail to make payment of Annual Lease Fee, Annual
Revenue Share Payments or any - other fees, charges or expenses herein
reserved by the day due and to cure such failure within ten (10) days after written
notice of the failure from the CITY; (ii) LESSEE shall fail to perform any of the
material terms, covenants, conditions, or provisions of this Lease other than
LESSEE's requirement to pay Annual Lease Fee, Annual Revenue Share
Payments or Annual Capital Investment, and to cure such failure within thirty (30)
days after written notice of the failure from CITY; (iii) LESSEE shall file a
voluntary petition under any bankruptcy, or insolvency law; (iv) an involuntary
petition shall be filed against LESSEE under any bankruptcy or insolvency law
and such . proceeding. is not dismissed within sixty (60) days of the
commencement date; (v) a receiver is appointed for LESSEE's property and such
proceeding is not dismissed within sixty (60) days of the commencement date; or
(vi) LESSEE makes an assignment for benefit of creditors. Upon default by
LESSEE and expiration of the applicable cure period without LESSEE'S cure of
the default, CITY shall have the right to terminate this Lease upon thirty (30)
days' prior written notice to LESSEE.
(b) Events of Default b'y Either Party. It is mutually agreed that in the event that
either party shall fail to perform any of the material terms, covenants, conditions,
or. provisions of this Lease, and to cure such failure within thirty (30) days after
written notice of the failure from the non -defaulting party, or such longer time as
is reasonable to cure such default, then the defaulting party shall be in default
hereunder, and the non -defaulting party at its option, may at once or at any time
thereafter, proceed to one or more of the following courses of action to the fullest
extent permitted by law:
(i) Either Party'; Right to Cure. Either party may, with or without terminating
this Lease, immediately or at any time thereafter, perform, correct or
repair any condition which shall reasonably constitute a failure on the
15
other party's part to keep, observe, perform, satisfy, or abide by any term,
condition, covenant, agreement, or obligation of the defaulting party under
this Lease, and the defaulting party.shall fully reimburse and compensate
the non-defa.ulting party on demand for all reasonable costs and
expenses incurred by the non -defaulting party in such performance,
correction or repair including, without limitation, interest at the Default
Rate.
(ii) Termination. Either party may immediately, or at any time thereafter, in
the event that a default has occurred by the other party, notify, in writing,
its intent to terminate this Lease, and this Lease shall be deemed to have
been terminated sixty (60) days after written notice of such termination.
(c) No Waiver by Parties. Nothing herein contained or non -action by a party for a
period of time following the other party's default shall be deemed to be a waiver
by the non -defaulting party of the remedies, rights and privileges of the non -
defaulting party, and the rights *set forth above shall not be exclusive. In addition
thereto, either party may also exercise and enforce all its rights at law or in equity
which it may otherwise have as a result of the other party's default hereunder.
23. Termination, This Lease. Agreement shall terminate upon the occurrence of any of the
following events:
(a) The expiration of the Term of the Lease Agreement unless renewed by the
mutual consent of the parties as outlined in Section 3.
(b) Upon written notice delivered or mailed to CITY or LESSEE, .as the case may be,
by the other in the event that either the CITY or LESSEE is in breach hereof by
virtue of a continuing: and uncured event of Default as defined herein.
(c) If the Excess Tax Amount exceeds a total of Fifty -Four Thousand Dollars
($54,000) per annum and the parties are unable to mutually agree on
modifications to this Agreement within Sixty (60) days after both parties are made
aware of such Excess Tax Amount as outlined in Section 6.
(d) This Lease Agreement may be terminated at the discretion of the City at any time
with Six (6) months notice.
24. Notice of Expiration Not Re; ua fired. Notwithstanding the provision of law or any judicial
decision to the contrary, the Term hereof shall expire on the date herein provided without
notice being required from either party.
25. Environmental Conditions.
(a) Defined Words and Phrases. For purposes of this Lease Agreement, the
following words and phrases have the meanings given them below:
(i) "Environmental Law" means all current and future federal, state, and
local environmental, safety or health laws, statutes, rules, regulations,
ordinances, orders, or common law; any rule or regulation promulgated
pursuant them, and any other present or future law, ordinance, rule,
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regulation, permit or permit condition, order or directive addressing
environmental, natural resource, health, or safety issues of or by the
federal government or any state or state political subdivision, or any city
or county governmental unit or entity, or any agency, court or body of the
federal government, or any state or state political subdivision, or any city
or county, exercising executive, legislative, judicial, regulatory or
administrative authority over the Facilities.
(ii) "Hazardous Substance" means (i) asbestos, flammables, volatile
hydrocarbons, industrial solvents, explosives, hazardous chemicals,
radioactive material, oil, petroleum, petroleum products or by products,
crude oil, natural gas, natural gas liquids, hazardous chemical gases and
liquids, volatile or highly volatile liquids, and/or synthetic gas, and shall
include, without limitation, substances defined as "hazardous
substances", "hazardous materials", "hazardous waste", "toxic
substances", "pollutants", or "contaminants", as those terms are used in
any Environmental Law or at Common Law, and (ii) any and all other
materials or substances that any governmental agency or unit having
appropriate jurisdiction shall determine in generally applicable regulations
from time to time are hazardous, harmful, toxic, dangerous or otherwise
required to be; regulated, removed, cleaned -up, or remediated.
(iii) "Contamination" shall mean the uncontained presence of Hazardous
Substances or regulated substances resulting from LESSEE's activities at
the Leased Premises or arising from the Leased Premises.
(iv) "Release" means any spill, leak, emission, pumping, pouring,
discharging, leaching, dumping, pulverizing, causing to become airborne,
percolation or disposing into or on any property or the environment.
(vi) "Lessee Panties" means and includes Lessee, its subsidiaries and
affiliated companies, and the officers, directors, employees and agents of
each of them.
(b) LESSEE's Responsibility.
(i) LESSEE Covenant. LESSEE covenants and agrees that it shall not
cause or permit any Hazardous Substances (the "Hazardous Substances"
as hereinafter defined) to be installed, placed, stored, held, located,
released or disposed of in, on, at, or under the Lease Premises
(excepting any substance or instrumentality in common use or storage on
properties such as the Leased Premises, including, without limitation,
pesticides, herbicides, nematicides, fertilizer, lubricants, fluids, and
petroleum products) without CITY's prior written consent, which consent
may not be unreasonably withheld. Future changes in the use of
Hazardous Substances will be submitted for CITY approval, said approval
not to be unreasonably withheld or delayed, provided they pose no
greater risk than substances currently being used by LESSEE. LESSEE
shall have a CITY approved plan for responding to hazardous waste,
fuels, and other chemical spills prior to commencement of operations on
the Leased Premises that would involve such materials.
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(ii) The LESSEE, as the previous owner of the property, is liable for (a) any,
violation of Environmental Laws occurring in, on, or at the Leased
Premises before the Commencement Date and, (b) if related to
underground storage tanks or Hazardous Substances existing in, on, or at
the Leased Premises as of the Commencement Date, any Release of or
Contamination by Hazardous Substances or other violation of
Environmental Laws occurring subsequent to the Commencement Date
except those Releases or violations arising from the act or omission of
LESSEE.
(iii) LESSEE shall promptly take all necessary and desirable actions to cure
or remediate violations of Environmental Laws that occurred in or on the
Leased Premises both before and after the Commencement Date and
arose from LESSEE's act or omission, or exacerbations of, or addition to,
pre-existing conditions caused by LESSEE's violations of Environmental
Laws.
(d) CITY's Responsibilit)t.
(i) To the extent permitted by law and as limited by the CITY sovereign
immunity and the provisions of Chapter 768.28 F.S., the CITY is not
responsible for any preexisting Hazardous Substances identified as
existing in or. Released in, on, or at the Leased .Premises before the
commencement date of the Lease Agreement and any Release of
Hazardous Substances or other violation of Environmental Laws
occurring subsequent to the commencement date except those Releases
or violations arising from the act or omission of LESSEE or LESSEE
parties.
(ii) CITY is not liable to LESSEE for any violations of Environmental Laws
existing in, on, or at any of the Facilities as of the Commencement Date
under this Lease Agreement.
(e) LESSEE Reports to CITY. If (1) LESSEE learns that a violation of Environmental
Laws exists in or on any part of the Leased Premises, (2) the violation existed
before the Commencement Date, (3) the violation did not arise from LESSEE's
act or omission, and (4) the violation in LESSEE's good faith and reasonable
judgment renders operation of the Leased Premises commercially impossible,
then LESSEE as its sole remedy may terminate this LEASE Agreement by
providing 30 days advance written notice to the CITY.
(f) Survival. The provisions of this Section survive the terms: of this Lease
Agreement Ending Date. No subsequent modification or termination of this
Lease Agreement by agreement of the parties or otherwise waives or modifies
any provision of this Section 25 unless the agreement or other document
specifically so states in writing.
26. Representations and Warranties.
(a) Representations and Warranties of CITY. Without limiting the representations,
covenants and warranties of CITY contained elsewhere in this Lease, as a
material inducement for LESSEE to enter into this Lease, CITY represents and
warrants to LESSEE: (and unless otherwise specified, such representations and
18
warranties are true as of the date hereof and will continue and be effective at all
times, as if continuously reiterated, during the term of this Lease) that:
(i) CITY is a duly incorporated under the laws of the State of Florida. CITY
has full power and authority to execute and deliver this Lease and all
documents, if any, now or hereafter to be executed and delivered by it
pursuant to this Lease (collectively referred to "CITY's Documents"), and
to perform all obligations arising under thereunder; and
(ii) CITY's Documents will each constitute the legal, valid, and binding
obligations of CITY, enforceable in accordance with their respective
terms, covenants, and conditions; and
(iii) CITY's Documents do not and will not contravene any provision of the
powers of CITY, any judgment, order, decree, writ or injunction, or any
provision of any applicable law or regulation, and the delivery of this
Lease and CITY's Documents will not result in a breach of, constitute a
default under, or require consent pursuant to any law or regulation or any
credit agreement, Lease, indenture, mortgage, deed of trust, purchase
agreement, guaranty or other instrument to which CITY is a party or by
which CITY is bound or affected.
(b) Representations and Warranties of LESSEE. Without limiting the
representations, covenants and warranties of LESSEE contained elsewhere in
this Lease, as a material inducement for CITY to enter into this Lease, LESSEE
represents and warrants to CITY (and unless otherwise specified, such
representations and warranties are true as of the date hereof and will continue
and be effective at all times, as if continuously reiterated, throughout the term of
this Lease) that:
(i) LESSEE is a corporation duly incorporated and in good standing under
the laws of the State of Florida. LESSEE has full. power and authority to
execute and deliver this Lease and all documents, if any, now or hereafter
to be. executed and delivered by it pursuant to this Lease (collectively
referred to as "LESSEE's Documents") and to perform all obligations
rising under this Lease and under LESSEE's Documents; and
(ii) LESSEE's Documents will each constitute the legal, valid and binding
obligations of LESSEE enforceable in accordance with their respective
terms, covenants, and condition; and
(iii) This Lease and LESSEE's Documents do not and will not contravene any
provision of the corporate powers of LESSEE, any judgment, order,
decree, writ or injunction or any provision of any applicable law or
regulation, and the delivery of this Lease and LESSEE's Documents will
not result in a breach of, constitute a default under, or require consent
pursuant to, any credit agreement, Lease, indenture, mortgage, deed of
trust, purchase agreement, guaranty or other instrument to which
LESSEE is a party or by which LESSEE or its assets are bound or
affected.
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27. Force Maieure. If CITY or LESSEE shall be delayed in, hindered in or prevented from the
performance of any act required hereunder (other than performance requiring the
payment of a sum of money) by reason of strikes, lockouts, labor troubles, inability to
procure materials, failure of power, restrictive governmental laws, regulations or actions,
riots, insurrection, the act, failure to act or default of the other party, war or other reason
beyond such party's reasonable control (excluding the unavailability of funds or
financing), then the performance of such act shall be excused for the period of the delay
and the period for the performance of any such act as required herein shall be extended
for a period equivalent to the period of such delay.
28. Successors and Assigns/Pe:rsonal Liability. The CITY and the LESSEE each bind the
other and their respective successors and assigns in all respects to all of the terms,
conditions, covenants and provisions of this Lease, and any assignment or transfer by
LESSEE of its interests in this Lease without the prior written consent of the CITY shall
be void, in the sole discretion of the CITY. Nothing herein shall be construed as creating
any personal liability on the part of any officer, employee or agent of the CITY.
29. No Third Party Beneficiaries. This Lease shall be for the sole benefit of the parties
hereto, and no other person or entity shall be entitled to rely upon or receive any benefit
from this Lease or any provisions hereof.
30. Remedies. All of the rights and remedies of any party under this Lease and the Exhibits
are intended to be distinct, separate, and cumulative, and no such right or remedy herein
or therein mentioned is intended to be in exclusion of or a waiver of any of the others.
31. Relationship of the Parties.
(a) Nothing herein contained shall be deemed or construed as creating the
relationship of principal and agent or of partnership or joint venture between the
parties hereto; it being understood and agreed that the method of computing the
payments due hereunder, any provision contained herein, or any acts of the
parties hereto shall riot be deemed to create any relationship between the parties
other than that of Lessor and Lessee.
32. Independent Contractor. This Lease Agreement does not create an employee/employer
relationship between the Parties. It is the intent of the Parties that the LESSEE 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. The LESSEE shall retain sole and absolute discretion in the judgment of the
manner and means of carrying out LESSEE's activities and responsibilities hereunder
provided, further that administrative procedures applicable to services rendered. under
this Agreement shall be those of LESSEE, which policies of LESSEE shall not conflict
with City, State, or United States policies, rules or regulations relating to the use of
LESSEE's funds provided for herein. The LESSEE agrees that it is a separate and
independent enterprise from the City, that it had full opportunity to find other business,
20
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. This Agreement shall not be construed as creating
any joint employment relationship between the LESSEE and the City and the City will
not be liable for any obligation incurred by LESSEE, including but not limited to unpaid
minimum wages and/or overtime premiums.
33. Construction of Language. Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held to include the
plural when the sense requires. The section headings and titles are not a part of this
Lease and shall have no effect upon the construction or interpretation of any part hereof.
Both parties acknowledge that they have had meaningful input into the terms and
conditions contained in this, Lease. Therefore any doubtful or ambiguous provisions
contained herein shall not be construed against the party who physically prepared this
Lease.
34. Provisions Severable. If any term or provision of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to persons or
circumstances other than those to which it is held invalid or unenforceable shall not be
affected thereby and each term and provision of this Lease shall be valid and be
enforced to the fullest extent: permitted by law.
35. Inclusion by Reference. The "Whereas" recitals, at the beginning of this Lease are true
and correct and, by this reference; are made a part hereof and are incorporated herein.
Similarly, all Exhibits and other attachments to this agreement that are referenced in this
Lease are, by this reference made a part hereof and are incorporated herein.
36. Order of Precedence. In the event of any conflict between or among, the provisions of
this Lease and those of any exhibit attached hereto or of any amendment, the priority, in
decreasing order of precedence shall be: (1) any fully executed amendment to this
Lease Agreement; (2) provisions in this Lease; and (3) exhibits to this Lease.
37. Modification. No modification, alteration or amendment to this Lease shall be binding
unless in writing and executed by the parties hereto.
38. Broker's Commission. Neither the CITY nor LESSEE have retained or used a broker in
the negotiation or consummation of this Lease.
39. Governing State Law; Venue. The rights, obligations and remedies of the parties as
specified under this Lease shall be interpreted and governed in all aspects by the laws of
the State of Florida. Should any provision of this lease be determined by the courts to
be illegal or in conflict with any law of the State of Florida, the validity of the remaining
provisions shall not be impaired. Venue for litigation of this Lease shall be in courts, of
competent jurisdiction located in Broward County, Florida.
40. Waivers. No provision of this Lease shall be deemed to have been waived by a party
unless such waiver be in writing signed by the waiving party and addressed to the non -
waiving party, nor shall any custom or practice which may grow up between the parties
in the administration of the provisions hereof be construed to waive or lessen the right of
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either party to insist upon the performance by the other party in strict accordance with
the terms hereof. Failure by either party to insist upon strict- performance of any of the
provisions. hereof, either party's failure or delay in exercising any rights or remedies
provided herein, payment by LESSEE of the Annual Lease Fee Payment or Annual
Revenue Share Payment or any part or combination thereof, or any purported oral
modification or rescission of this Lease by an employee or agent of either party, shall not
release either party of its obligations under this Lease, shall not be deemed a waiver of
any rights of either party to insist upon strict performance hereof, or of either party's
rights or remedies under this Lease or by law, and shall not operate as a waiver of any
of the provisions hereof.
41. Entire Agreement/Amendments. This Lease .constitutes the entire agreement between
the parties hereto for the Leased Premises, and no rights are to be conferred upon either
party until LESSEE and CITY have executed this Lease. It is agreed between the parties
that neither CITY nor LESSEE nor any of their agents. have made any statements,
promises or agreements, verbally or in writing, in conflict with the terms of this Lease. No
statement, representation, writing, understanding, agreement, course of action or course
of conduct, made by either party, or any representative of either party, which is not
expressed herein shall be binding. All changes to, additions to, modifications of, or
amendment to this Lease, or any of the terms, provisions and conditions hereof, shall be
binding only when in writing and signed by the authorized officer, agent or representative
of each of the parties hereto.
<<SIGNATURE PAGES FOLLOW >>
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IN WITNESS WHEREOF, the undersigned have executed, or caused this Agreement to be
executed by an authorized representative, under seal as of the date first above written.
CITY OF TAMARAC
CITY OF TAMARAC, FLORIDA
a muLL
'l corporation
By: j
Pamela Bushnell, Mayor
ichael C. Cernech, City Manager
ATTEST:
Peter Richards n, CRM, CMC,
TAB �
U°v
City Clerk
\�����OF
• q9,q '.�
\�.``A,
(CITY SEAL)
=cu:•ESTABLISHED
;A 1963
0tz'•, SEAL
APP
�'�,90 •'� '.{
�jjFORM:
,r Ltd P ����'►'u'►'►���
1
S muel S. ore , City Attorney
_
Sandtrap Management, Inc.
Witness:
23
Sandtrap Management, Inc.
a Florida Corporation
By: ./
Norman Rack
Print Name:
EXHIBIT A
TO
LEASE AGREEMENT
Legal Description of Leased Premises
City to include Legal Description of Property and Map showing property line, surrounding
property.
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EXHIBIT B
TO
LEASE AGREEMENT
Inventory of Personal Property
SMI to provide updated list of all Equipment, Furniture, Fixtures, Supplies, and Equipment and
CITY to review List and confirm on site in format similar to below:
Club House Equipment:
Item Manufacturer Quantity Condition/Acre
Other Property:
Item Manufacturer Quantity Condition/Aae
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EXHIBIT C
TO
LEASE AGREEMENT
Easements, Rights of Way, and Deed Restrictions
The Leased Premises are subject to:
'The following designated easements:
Utility
Gas,
Electric
City Sewer and Water
CITY Sewer and Water
Phone
Cable
Cellular Carrier
Other Easements:
Florida Department of Transportation
Other Property Owners
Other
City to provide recent survey of property to show relevant items above
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EXHIBIT D
TO
LEASE AGREEMENT
INSURANCE SCHEDULE
The following are required types and minimum limits of insurance coverage, which the LISENSEE
agrees to maintain during the, term of this contract:
Line of Business/ Coverage
Commercial General Liability
Including:
Premises/Operations
Contractual Liability
Personal Injury
Explosion, Collapse, Underground Hazard
Products/Completed Operations
Broad Form Property Damage
Cross Liability and Severability of Interest Clause
Occurrence Aggregate
$1,000,000 $2,000,000
Automobile Liability
$1,000,000 $2,000,000
Liquor Liability
$1,000,000 $2,000,000
Storage Tank Liability
$1,000,000 $1,000,000
Pollution Liability
$1,000,000 $2,000,000
Flood Insurance
Replacement Cost Building Value
Workers' Compensation
Statutory
Contractors' Equipment
Replacement Cost Building Value
Property Insurance
Replacement Cost Building Value
(All Risk Peril Policy including HurricaneMind 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
The City reserves the right to requite higher limits depending upon the scope of work under this
Agreement.
Neither Licensee nor any Sub -Licensee or Subcontractor of Licensee 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.
The Licensee will ensure that all Sub -Licensee's or 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.
The Licensee's liability insurance policies shall be endorsed to add the City of Tamarac as an
"additional insured". The Contractor's Workers' Compensation carrier will provide a Waiver, of
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Subrogation to the City.
'The Contractor sha!I be responsible for the payment of all deductibles and self -insured retentions.
The City may require that the Licensee purchase a bond to cover the full amount of the deductible
or self -insured retention.
If the Licensee or any Sub -licensee, or any Subcontractor is to provide professional services under
this Agreement, the Contractor 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.
'The Licensee agrees to perform the! work under the Contract as an independent Contractor, and
not as a Sub -Licensee, subcontractor, agent or employee of CITY.
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