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HomeMy WebLinkAboutReso 1984-11782 RESOLlITION NO. 11782 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND AMERICAN GOLF CORPORATION FOR THE OPERATION OF A PUBLIC GOLF COURSE AND DRIVING RANGE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain agreement between THE CITY OF CHULA VISTA, a municipal corporation, and AMERICAN GOLF CORPORA- TION, for the operation of a public golf course and driving range dated the 15th day of October , 1984, a copy of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER Chula Vista be, and he execute said agreement Vista. RESOLVED that the Mayor of the City of is hereby authorized and directed to for and on behalf of the City of Chula ~~ At ... as to form by Presented by E. R. Asmus, Assistant City Attorney II ,.r ( "L- ( ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY. OF :HULA VISTA, CALIFORNIA, this 9 84 15th day of October , by the following vote, to_it: ~YES: Councilmen \lAYES: Councilmen ~BSTAIN: Cot.ncilmen ~BSENT: Councilmen Malcolm, McCandliss, Scott, Moore, Cox None None None L 11.(1 Mait:ithe City of Chula Vista ( ~TTEST . / / / ( STATE OF CALIFORNIA ) ::OUNTY OF SAN DIEGO ) s s . ::ITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, )0 HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 11782 ,and that the some has not been amended or repealed. )ATED (seal) City Clerk CC-660 LEASE BETWEEN THE CITY OF CHULA VISTA AND AMERICAN GOLF CORPORATION FOR THE OPERATION OF A PUBLIC GOLF COURSE AND DRIVING RANGE THIS LEASE, made and entered into this 15th day of October , 1984, by and between the CITY OF CHULA VISTA, a municipal corporation, (hereinafter referred to as "City"), 'and American Golf Corporation (hereinafter referred to as "Lessee"), WIT N E SSE T H ---------- WHEREAS, the City of Chula Vista is the owner of certain real property located north of Bonita Road, which such property is located in the Sweetwater River flood plain; and WHEREAS, the operation of a public recreational golfing facility is an economically advantageous use of such property; and WHEREAS, City desires to provide its citizens with a professional golf facility; and WHEREAS, the existing golf facility requires significant capital improvements to provide an efficient, professional golf facility; and WHEREAS, the Lessee has substantial experience in rehabilitating and managing professional golf facilities; and WHEREAS, City and Lessee desire to enter into a Lease to provide such use. NOW, THEREFORE, in consideration of the covenants and conditions hereinafter contained to be kept and performed by the parties hereto, IT IS MUTUALLY AGREED AS FOLLOWS: -1- \'\t ')- ~-\ Sec. 1. Section Headings. The section headings ~rypearing herein shall not be deemed to govern, limit, modify or ~,l any manner affect the scope, meaning or intent of the provisions of this Lease. Sec. 2. Demised Premises. City leases to Lessee and Lessee takes and leases from City, for the term and upon the conditions provided in this Lease, the premises, comprising 129 acres, located north of Bonita Road ("Bonita"), as shown on attached Exhibit A. The demised premises include the golf professional's shop, the cart storage area, the maintenance barn, and all fixtures and accessories attached to or belonging to the demised premises and improvements and any personal property customarily situated in or utilized in the operation of the demised premises. The demised premises also include a parking lot, the undivided use which is shared with a restaurant on the premises that is the subject of a separate lease and not a part of the demised premises. Any costs associated with maintenance and repair of the parking lot will be the sole responsibility of Lessor. Referenced lease for the restaurant operation provides that restaurant Lessee "is authorized and permitted to designate by appropriate markings up to 125 parking spaces 'for restaurant parking only' subject to the approval of the City Manager." City agrees to hold Lessee harmless and defend Lessee against any and all claims that may arise out of City's continued permission to allow the general public to use the jogging/equestrian trail. The demised premises also excludes those areas shown on Exhibit A and designated "jogging/equestrian trail." -2- '\\'\ 'Kd-. Q-- Sec. 3. Term of Lease. This Lease shall commence on 11-1-84 "~d shall continue for a period of three (3) years; provided that ~essee complies with all of its responsibilities under this Lease. In the event that Lessee fails to comply with its responsibilities under this Lease, City may notify Lessee of such failure and it shall be Lessee's responsibility to rectify such failure and- comply with the terms of the Lease within sixty (60) days of such notification. Thereafter, if Lessee has not corrected such failure, City may terminate this Lease. If Lessee complies with its Lease obligation, Lessee will have the option to extend the term of this Lease at the end of the initial three year term for one two-year period and three additional separate five-year periods if Lessee is otherwise in full compliance with all of its obligations and responsibilities der this Lease. This means that Lessee's full term, with the proper exercise of options, is twenty (20) years. In addition, City may, in its sole discretion, elect to extend this Lease for two additional five-year periods following the completion of such twenty (20) years. The exercise of all such option extensions shall be upon one hundred eighty (180) days written notice to the other party. Sec. 4. Rental. A. For and in consideration of City executing this Agreement and granting the rights herein enumerated, Lessee shall during the term hereof pay to City a minimum annual guarantee as follows: -3- \\'\ t'J- ~- A. Year 1 :;; 68,400 B. Year 2 74,000 I' Year 3 86,000 Years 4 - 8 100,000 ~. Years 9 - 13 112,000 F. Years 14 - 20 124,000 or a percentage of the annual gross receipts derived from the operation of the golf course and driving range during the term, whichever amount is greater. The percentages to be applied in calculating total percentage rent are fifteen percent (15%) of the greens fees, golf cart fees and driving range fees and six percent (6%) of all other sales, including but not limited to the pro shop, food and beverages concessions and sales from any other sources, excluding income from golf lessons. The minimum annual guarantee will be divided into twelve (12) equal payment amounts and will be paid monthly by Lessee on or before the tenth (10th) day of the following month. At the Delusion of each Lease Year, Lessee shall determine the amount of an alternative annual percentage payment based upon the percentages listed in this section. If that amount, based upon annual gross sales, is greater than the sum of the twelve monthly installments paid toward the minimum annual guarantee, then Lessee shall pay the additional amount to City within sixty (60) days after the end of the Lease Year. All sums due shall be delinquent on the tenth (10th) day of each month for those rents due and payable monthly, and on the sixtieth (60th) day for the annual percentage rent. All delinquent payments shall be subject to a minimum penalty of the greater of either ten percent (10%) per month or the rate prevailing on the twenty-fifth (25th) day of the -~nth preceding the late payment as established by the Federal -4- .~_ \ \'L ~~ Reserve Bank of San Francisco on advances to member banks under ~~ctions 13 and 13a of the Federal Reserve Act as now in effect or "",,reafter from time to time amended (or if there is no such sing Ie determinable rate of advances, the closest counterpart of such rate as shall be designated by the Superintendent of Banks of the State of California unless some other person or agency is delegated such authority by the Legislature). B. "Gross sales" shall be understood to include, but not limited to, receipts derived from operation of the driving range, the professional shop, golf cart rentals, and "green fees" for use of the golf course, food and beverage concessions, but shall specifically exclude income from lessons taught by the golf professional. C. All rental payments hereunder shall be paid to the City Chula Vista, Department of Finance, 276 Fourth Avenue, Chula Vista, California 92010, or to such other address as City may designate by written notice to Lessee. D. Lessee's books, records, reports and accounts of its business authorized herein to be conducted on the demised premises may be audited periodically by City or an Independent Certified Public Accounting firm selected by City during the term of this Lease. If Lessee's accounting records are located on other than demised premises, then copies shall be made available to the City within one week of City's request. It is agreed that examinations of the books, ledgers, journals and accounts of Lessee will be conducted in accordance with generally accepted auditing standards applicable in such -5- ~ \\'\~r circumstances and that, as such, said examinations do not require - detailed audit of all transactions. Testing and sampling ".ethods may be used in verifying reports submitted by Lessee and deficiencies ascertained by applying percentages of error obtained from such testing and sampling to the entire period of reporting under examination will be binding upon Lessee. In the event any deficiency in the amount of two percent (2%) or greater of the fees and charges payable to City hereunder is ascertained, Lessee agrees it will pay to City the full amount of any deficiency, and will reimburse City for the cost of the examination. The cost of any examination not revealing any deficiency of two percent (2%) or more will be borne by City. Lessee shall submit to City on or before the sixtieth (60th) day following the end of each year at the place then fixed for the yment of rent, a statenent showing the calculations of the n al ternati ve annual percentage payment" method compared to the minimum annual rent method. All financed statements submitted by Lessee shall be certified by an authorized executive of Lessee. E. Lessee shall purchase within sixty (60) days from the date of this lease the City's maintenance equipment and miscellaneous tools used by the City for the operation of the golf course. All equipment and tools to be purchased by Lessee are specifically itemized in Exhibit B The equipment and tools shall be purchased for their fair market value. The fair market value of the tools and equipment to be purchased from City by Lessee shall be determined by an appraisal to be made of said equipment and tools by a major and reputable supplier of such -6- ... ..... . \\,~?-- ~-\ products to be selected by City with Lessee's approval. If City .~ dissatisfied with the fair market value as determined by the appraisal of the first supplier selected, it may obtain an appraisal from a second major and reputable supplier, also to be selected by City with Lessee's approval. Lessee agrees it will pay to City the greater of the two suppliers' appraisals of fair market value within thirty (30) days of written receipt of said appraisals. Sec. 5. Use of Demised Premises. The demised premises shall be used by Lessee only for the operation of a public golf course, driving range, an automobile parking facility for golfing patrons, a convenience food dispensing facility for golfers (half way house), and a golf pro shop in which golfing equipment and apparel customarily sold in golf pro shops may be offered for sale. ssee shall not use the demised premises or any portion thereof for any other purpose than that hereinabove set forth without first having had and obtained the written consent of the City. Sec. 6. Access to Premises - Ingress and Egress. Throughout the term of this Lease, Lessee, its agents, servants, employees and business invitees, and its equipment, vehicles, machinery and other property, shall have full and free right of ingress to and egress from the demised premises without charge. Sec. 7. Alterations to Improvements. Lessee shall make no structural alterations to the roof, walls or floor of any existing or new structure.s constructed in the future on the demised premises nor shall it alter the contours of the premises without the written consent of City. -7- \" ~:f- ~- Sec. 8. Ownership of Improvements. Title to all structures, 'orovements and facilities installed and in place at the commencement of this Lease or hereinafter constructed by Lessee are vested in City. Lessee's machines, equipment, trade fixtures and other installations of the type commonly installed in and removed by tenants from improvements similar to those authorized herein which are installed by Lessee in or on the demised premises shall not be deemed to be part of the realty even though they are attached to the floor, walls or roof of the building(s) or to outside pavements, so long as they can be removed without structural damage to said improvements and provided that if such removal, at Lessee's option, of any such installation results in nonstructural damage to any part(s) of the building(s), pavement or premises, ,see shall repair such damage and restore said damaged part(s) of said building(s), pavement or premises to as good condition as the same were in at the commencement of this Lease, reasonable wear and tear excepted. Sec. 9. Lessee shall finance, construct and complete the capital improvements specified in the attached Exhibit C within the periods stated. Prior to the construction of any specific capital improvement, Lessee will submit its plans for such improvements to City for City's approval, said approval shall not be unreasonably withheld. Failure to complete these capital improvements shall constitute a breach of this agreement and may result in termination of this Lease at the option of City. All capital improvements shall be constructed at the sole cost and .>ense of Lessee. -8- ~_ \ n ~r;}- Sec. 10. Bond for Capital Improvements. City may, at its sole election, require Lessee to furnish a capital improvement 00nd or other surety acceptable to City in an amount sufficient to insure that the capital improvements provided for in this Lease can and will be completed. Said bond or other surety can be requested on the giving of written notice to Lessee any time during the initial term of this Lease. Lessee shall obtain such bond or other surety at its sole cost and expense and keep such bond or other surety in full force and effect during the term specified in Section 9. Said bond or other surety shall be approved by the City Attorney, issued by a surety company authorized and licensed to transact business in the State of California, be for the full amount of the estimated cost of the improvements with the City of Chula Vista as obligee and shall not "e subject to material change and/or cancellation. Sec. 11. A. Maintenance of Demised Premises. Lessee, solely at its own cost and expense, shall maintain the demised premises, including the golf course pursuant to Exhibit D structures, paving, landscaping, improvements and facilities presently thereon and any constructed by Lessee during the term hereof, in good condition and in compliance with all requirements of law, provided, however, Lessee shall not be responsible for maintaining the landscaped areas within the parking lot or any of those areas specifically the responsibility of a restaurant Lessee under the terms of that lease agreement. Lessee shall also conduct its, and cause its sublessees to conduct their operations on the demised premises in such manner, using the best known , -9- ~_\0'~ available and practical devices and facilities to reduce as -"ch as is reasonably practicable, considering the nature and ~Atent of said operations, the emanation from the demised premises of noise, vibration, movements of air, fumes and odors, so as not to interfere unreasonably with the use of other premises adjoining the demised premises. B. General Maintenance Specifications. Said Exhibit D , establishing general maintenance standards, upon request of Lessee or the City, may be reviewed on an annual basis to determine adequacy of the specifications. Said specifications may be amended upon mutual consent of the parties. Sec. 12. periods and Conditions of Operation. A. The golf course and driving range shall be open and operating seven days a week, weather permitting, and shall be 'quately staffed with personnel to provide and maintain the golfing facilities and activities specified hereinabove. B. Lessee shall fully equip the facility with necessary mowers, aerators, and other lawn (green and fairway) and golf course maintenance items together with necessary pro-shop equipment and fixtures. C. Lessee shall control the conduct, demeanor and appearance of its officers, agents, employees, representatives, customers, guests, invitees, contractors and others doing business with it and upon objection from the City concerning the conduct, demeanor or appearance of such persons, Lessee shall forthwith take all steps necessary to remove the cause of the objection. D. City shall terminate the existing contract between City the golf professional. In consideration for said termination, -10- ~_\0K~ Lessee shall offer to purchase from the golf professional all -o-shop inventory at original wholesale value and all other ~guipment, including trade fixtures, at their depreciated value. E. Nothwithstanding subsection D, Lessee shall employ a golf professional at the demised premises. Said golf professional shall have at least a PGA Class A rating unless waived by City in wri ting. F. City shall have the right to approve the greens fees charged by Lessee. It is City's intention that such greens fees may be comparable to those fees charged by other comparable public golf courses in San Diego County for similar services. Lessee agrees that greens fees will be adjusted not more than once every Lease Year and that it will notify City in writing of its desire to change such fees no less than sixty (60) days prior to the date en Lessee wishes to put any new rate schedule into effect. Sec. 13. Insurance. Lessee shall procure at its expense and keep in effect at all times during the term of this Lease, the following forms of insurance: A. Public liability and property damage insurance. The policy or policies providing said coverage shall include premises, contractual liability and personal injury coverage including, but not limited to, the liability assumed by Lessee under the Hold Harmless provision of this Lease. Said policy or policies shall cover loss or liability for damages in an amount not less than Five Million Dollars ($5,000,000) combined single limit, for each occurrence for bodily injury, death or property damage occurring by reason of Lessee's operation in, on about the demised premises; and -11- ?-_ \nt~ B. Fire, extended coverage, vandalism and malicious mischief. rood "all risk" insurance, excluding earthquake and flood, in a Jrm at least as broad as the standard insurance services office special extended coverage endorsement, covering all improvements or additions made by Lessee on the demised premises, such insurance to be in an amount equal to ninety percent (90%) of replacement value of all such improvements with the policy or policies containing a loss payable endorsement(s) in favor of the parties hereto as their respective interests may appear. "Full replacement value" shall be determined by a qualified appraiser(s) at the time said improvements are initially insured and shall be redetermined annually thereafter throughout the term of this Lease. Said redeterminations of full replacement value shall be based upon the annual percentage increase, if any, in the Cost of 'ving Index (All Items -- Urban Wage Earners and Clerical Workers) published by the Bureau of Labor Statistics of the United States Labor Department. In the event such cost of living index is not then in existence, the adjustment shall be made on the basis of such other comparable, generally accepted index as may then be available, the selection of which is mutually acceptable to City and Lessee. It shall be Lessee's responsibility to obtain said redeterminations. Both Lessee and City shall be promptly notified of the results of said redetermination and Lessee shall immediately thereafter adjust the amount of the insurance coverage to correspond with each redetermination of full replacement value. Said policy or policies shall be procured, filed with the City and approved by the City and shall provide therein that the same shall : be subject to cancellation except after delivery of written -12- ~_.\ (ltr notice by registered mail to the City Attorney of the City of ~~ula Vista at least thirty (30) days prior to the effective date of any such cancellation. A certificate or certificates evidencing the issuance of such policy of policies, showing the inclusive dates of coverage, bearing an original signature(s) of an authorized representative of the respective carrier or carriers and containing thereon the above thirty day notice provision, shall be filed with the Clerk of the City Council. Sec. 14. City Held Harmless. Lessee shall keep and hold City, including Council, and City's officers, agents, servants and employees, harmless from any and all costs, liability, damage or expense (including costs of suit and fees and expenses of legal services) claimed by anyone by reason of injury or damage to persons or property sustained in, on or about the demised -emises, or arising out of Lessee's operations in or on said premises, as a proximate result of the acts or omissions of Lessee, its agents, servants or employees, or arising out of any condition of the demised premises, excepting such liability as may be the result of the direct and proximate negligence of City, or its officers, agents servants or employees while acting in the scope of their official duties agency or employment. Sec. 15. Damage to or Destruction of Improvements. If, during the term of this Lease, Lessee's improvements on the demised premises are partially or totally destroyed from a risk covered by the insurance described in Section 13 B. herein, Lessee shall restore the premises to substantially the same condition as they were in immediately before destruction; provided, however, ,at Lessee shall not be required to expend for such restoration -13- ~_\n ~'J.... an amount greater than the insurance proceeds it recovers as a ~~sult of such partial or total destruction. Sec. 16. Assignments and Subleases. Except as provided in this Section 16, Lessee shall not mortgage, hypothecate, pledge or otherwise encumber or assign the leasehold estate herein created without the prior written consent of the City Council. In addition, except as provided in this Section 16, Lessee shall not sublet or sublease the demised premises, in whole or in part, without the prior written consent of the City. Lessee shall request, in writing, said consents. Attached to any such request shall be exact copies of all legal documents prescribing the assignment or the sublease. Said documents shall expressly show all financial details of the proposed assignment or sublease. Any attempted assignment, mortgaging, hypothecation or encumbering of ~ leasehold estate, or any subletting or subleasing of the whole or any part of the demised premises, except as provided above, or other violations of the provisions of this Section 16, whether voluntary or involuntary, shall be voidable at the option of City. The interest of Lessee under this Lease shall not, except at City's option and with its written consent, be assignable by operation of law. In case of bankruptcy of Lessee or the appointment of a receiver for Lessee, or if a receiver is appointed to take possession of the demised premises as a result of any act or omission of Lessee or if Lessee makes an assignment of this Lease for the benefit of creditors, or if possession of the demised premises is taken by virtue of any attachment, execution or the levy of any judicial process, City, at its :ction, may, without notice, terminate this Lease and enter upon -14- ~_ \ n~?-- said demised premises and remove all persons therefrom. Sec. 17. Termination by City. A. City shall have the right to terminate this Lease Agreement in its entirety and all rights ensuing therefrom upon thirty (30) days written notice if anyone or more of the following events shall occur: 1. Lessee shall fail to pay the rental payments required under this Lease within thirty (30) days after receipt of written notice from City regarding the non-payment of such rental payments; 2. Lessee shall permit to continue for a period of fourteen (14) days after written notice from City to correct, the existence of unsanitary conditions or practices, disrepair of buildings, structures, equipment or facilities, unsafe and hazardous 'ctices, or untidy and unsightly condition in, on or about the demised premises; provided, however, that if Lessee shall forthwith upon receipt of said notice proceed to correct the condition complained of, then Lessee shall have a reasonable time in which to correct should the nature of the work be such as to require more than five (5) days; 3. The interest of estate of Lessee under this Lease Agreement shall be transferred to, passed to or devolve upon, by operation of law, any other person, firm or corporation; 4. Lessee shall fail to keep, perform or observe each and every other promise, covenant, condition and agreement set forth in this Lease Agreement on its part to be kept, performed or observed within fifteen (15) days after receipt of written notice default thereunder from City except for acts of God or Force -15- - _u__ ~,\ \'1 t#- Majeure which renders Lessee's performance impossible, or except "'<ere fulfillment of Lessee's obligation requires activity over a ~~riod of time and Lessee shall have commenced to perform whatever may have been required for fulfillment within seven (7) days after receipt of such notice and continues such performance without interruption except for causes beyond its control; 5. The levy of any attachment or execution, or the appointment of any receiver, or the execution of any other process of any court of competent jurisdiction which does, or as a direct consequence of such process will, interfere with Lessee's occupation of the demised premises and will interfere with its operations under this Lease Agreement, and which attachment, execution, receivership or other process of such court is not vacated, dismissed or set aside within a period of thirty (30) "rSi 6. Lessee shall become insolvent, or shall take the benefit of any present or further insolvency statute, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy, or a petition of answer seeking an arrangement for its reorganization, or the readjustment of its indebtedness under the federal bankruptcy laws or under any other law or statute of the United States, or of any state law, or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property; 7. By order or decree of a court of competent jurisdiction, Lessee shall be adjudged bankrupt, or an order shall be made approving a petition filed by any of the creditors, or by any of -16- (\~')- ~-\ the stockholders of Lessee seeking its reorganization or the -~adjustment of its indebtedness under the federal bankruptcy laws vr under any law or statute of the United States or any state thereof; 8. By or pursuant to, or under authority of any legislative act, resolution or rule or any order or decree of any court, governmental board, agency, or officer having jurisdiction, a receiver, trustee or liquidator shall take possession or control of all or substantially all of the property of Lessee, and such possession or control shall continue in effect for a period of thirty (30) days; 9. Lessee shall voluntarily abandon, desert, vacate or discontinue its operation of the business herein authorized in this Lease Agreement; 10. In the event Lessee is prevented from occupying or using the demised premises, or is prevented from conducting or operating its business on said premises by final action, order or ruling of any governmental authority, federal, state or municipal, then Lessee may, at its option, cancel this Lease by written notice to City, and said Lease shall be and become cancelled and terminated thirty (30) days after the receipt by City of such notice. B. Notwithstanding the above, City has the right to terminate this Lease, upon the giving of six (6) months notice in writing to Lessee, if the City's Council adopts any ordinance finding that substantially all of the demised premises are required for the purpose of constructing public streets or drainage facilities for the Sweetwater River Flood plain -17- 0~ ~~ consistent with any flood plan adopted for the Sweetwater River Flood Plain. C. Nothing in this Section 17 shall require Lessee to observe or conform to any governmental authority's require- ments or to pay any tax, lien, claim, charge or demand so long as the validity or enforceability thereof shall be contested in good faith to the extent appropriate unless in City's judgment the performance of Lessee's obligations are being materially and adversely affected. D. No acceptance by City of rentals, in whole or in part, for any period or periods after a default of any of the terms, covenants and conditions to be performed, kept or observed by Lessee, other than a default in the payment rentals as set forth in Section 17 hereof, shall be deemed a waiver of any right on ~he part of City to terminate this Lease Agreement on account of .>uch default. E. No waiver by City of any default on the part of Lessee in the performance of any of the terms, covenants, or conditions hereof to be performed, kept or observed by Lessee shall be or be construed to be a waiver by City of any other or subsequent default in performance of any of said terms, covenants and conditions. Sec. 18. City's Right of Re-entry. City shall, as an additional remedy, upon the giving of written notice of termination as provided in Section 17 hereof, have the right to re-enter the demised premises and every part thereof on the effective date of termination without further notice of any kind, -18- \\1 t?-- ~- and may regain and resume possession either with or without the institution of summary or legal proceedings or otherwise. Such ~-entry or regaining or resumption of possession, however, shall not in any manner affect, alter, or diminish any of the obligations of Lessee under this Lease and Agreement, and shall in no event constitute an acceptance or surrender. Sec. 19. Survival of Lessee's Obligations. In the event this Lease is terminated by City, or in the event City re-enters, regains or resumes possession of the demised premises, all of the obligations of Lessee hereunder shall survive and shall remain in full force and effect for the full term of this Lease. Subject to City's obligation to mitigate damages, pursuant to which there shall be an offset against Lessee's obligations hereunder for any fees and charges received by City from a succeeding lessee during "e term hereof, the amount or amounts of fees and charges shall become due and payable to City to the same extent, at the same time or times and in the same manner as if no termination, cancellation, re-entry, regaining or resumption of possession had taken place. City may maintain separate actions each month to recover any monies then due or, at its option and at any time, may sue to recover the full deficiency. Sec. 20. Waiver of Redemption and Damages. Lessee hereby waives any and all rights of redemption granted by or under any present or future law, or statute, arising in the event City obtains or retains possession of the demised prelnises in any lawful manner. Lessee further agrees that in the event the manner or method employed by City in re-entering or regaining possession -19- \0t~ ~- of the demised premises gives rise to a cause of action in Lessee ;~ forceable entry and detainer under the laws of the State of _~lifornia, then the total amount of damages to which Lessee shall be entitled to in any such action shall be the sum of $1.00 and Lessee agrees that the provisions of this Section 20 may be filed in any such action as its stipulation fixing the amount of damages to which it would be entitled therein. Sec. 21. City's Right to Relet. City, upon termination or cancellation pursuant to Section 17 hereof, or upon re-entry, regaining or resumption of possession pursuant to Section 18 hereof, may occupy the demised premises or may lease the same to others, and shall have the right to permit any person, firm or corporation to enter upon the demised premises and use the same. Such leasing to or occupation by others may be only a part of the ~ised premises, or the whole thereof together with other space, and for a period of time the same as or different from the balance of the term hereunder remaining, and on terms and conditions the same as or different from those set forth in this Lease Agreement. City shall also, upon termination or cancellation pursuant to Section 17, or upon its re-entry, regaining or resumption of possession pursuant to Section 18, have the right to repair or to make such structural or other changes in the demised premises as are necessary in its judgment to maintain the suitability thereof for uses and purposes similar to those granted under this Lease Agreement. In the event either of any leasing to others, or any actual use and occupancy by City, except as specified in subparagraph B. of Section 17, there shall be charged to the -20- \0'~ ~- account of Lessee all expenses, costs and disbursements incurred ~- paid by City in connection therewith. No such leasing to, v~hers shall be or be construed to be an acceptance of surrender. Sec. 22. Taxes and Licenses. Lessee shall pay all taxes of whatever character that may be levied or charged upon the leasehold estate in the demised premises, or upon the improvements, fixtures, equipment or other property thereon, or upon Lessee's operations hereunder. Lessee shall also pay all license or permit fees necessary or required by law for the conduct of its operations hereunder; provided, however, Lessee need not pay such taxes as it shall be contesting, provided such contest is in good faith and pursued diligently. If a determination is made adverse to the interest of Lessee, Lessee, after all time for appeal has run, shall promptly pay such taxes. Sec. 23. Possessory Interest Tax. A. Lessee shall be responsible for the payment before delinquency all possessory interest taxes levied against the demised premises. B. Anything herein contained to the contrary notwithstanding, Lessee shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any said possessory interest taxes on or attributable to the premises, including the right to apply for the reduction thereof, and City shall cooperate fully with Lessee in connection therewith, provided, however, Lessee shall prosecute any such contest with due diligence, and shall, forthwith upon the final determination thereof, pay the amount of said possessory interest taxes on or attributable to -21- \~~ ~- the premises as so determined together with any interest, ~-"'nal ties, costs and charges which may be payable in connection ~nerewith. C. If any said possessory interest taxes on or attributable to the premises are payable in installments, City agrees to execute and join with Lessee in the execution of any application or other instrument which may be necessary to permit the payment thereof in such installments, and in such event Lessee shall pay and be liable hereunder only for the installments or portions of installments thereof which are payable during the lease term and any interest due thereon. Sec. 24. Rules and Regulations. The leasehold estate herein created and all operations of Lessee at the Chula Vista Municipal Golf Course shall be subject to any and all applicable rules, gulations, including noise regulations in effect at the commencement of this Lease or thereafter promulgated during the term hereof, laws, ordinances, statutes or order of any governmental authority, federal, state or municipal, lawfully exercising authority over Lessee's operations hereunder. City shall not be liable to Lessee for any diminution or deprivation of possession of its rights hereunder on account of the exercise of any such authority as is provided in this Section 24, nor shall Lessee be entitled to terminate the whole or any portion of the leasehold estate herein created by reason thereof unless the exercise of such authority shall so interfere with Lessee's use and occupancy of the demised premises or the improvements thereon as to constitute termination, in whole or in rt, of this Lease by operation of law. -22- R_\n~'J- Sec. 25. Utility Services. All charges for water (other rhan pumped well water), gas, heat, light, power, telephone and _,)y other utility service used by Lessee in connection with its occupancy of the demised premises, including deposits, connection fees or charges and meter rentals required by the supplier of any such utility service, and the costs of all equipment and improvements necessary for connecting the demised premises to such utility service facilities, shall be paid by Lessee. Lessee expressly waives any and all claims against City's Department of Parks and Recreation for compensation for any and all loss or damage sustained by reason of any defect, deficiency or impairment of any water supply system, drainage or sewer system, gas supply system, telephone system, electrical supply system or electrical apparatus or wires serving the demised premises. Sec. 26. Signs. No exterior signs or advertisements pertaining to Lessee's operations on the demised premises shall be installed on said premises until Lessee has submitted to City a brief description of the dimensions, type and character of such signs or advertisements. This brief description shall be provided to the City no less than thirty (30) days prior to installation for City's comments, suggestions, and approval. Sec. 27. Inspection by City. The Director of Parks and Recreation, or any person designated by said Director, shall have access at all reasonable times, in, on and upon the demised premises for the purpose of inspecting the same and to pos t any notices which, in the opinion of Director, shall be necessary to hold City harmless from any claim or liability arising out of any :k done in, or about the demised premises, or in connection with -23- " " ~_ \ \\,t'#- the use thereof by Lessee; subject, however, to reasonable ~-operty protection, rules and regulations of Lessee. Sec. 28. Workers' Compensation Insurance. Before entering upon the performance of this Lease, Lessee agrees to take out, or cause to be taken out, with a responsible insurance carrier authorized under the laws of the State of California to insure employers against liability for compensation under the Workers' Compensation Insurance and Safety Act, compensation insurance covering liability for compensation under said Act for any person injured while performing any work or labor incidental to the performance of this Lease. Said policy or policies shall be procured, filed with the City and approved by the City and shall provide therein that the same shall not be subject to cancella tion except after delivery of written notice by registered mail to the ~y Attorney of the City of Chula Vista at least thirty (30) days prior to the effective date of any such cancellation. A certificate or certificates evidencing the issuance of such policy or policies, showing the inclusive dates of coverage, bearing an original signature(s) of an authorized representative of the respective carrier or carriers and containing thereon the above thirty day notice provision, shall be filed with the Clerk of the Ci ty Council. Sec. 29. Nondiscrimination and Affirmative Action Program. Lessee, in its operations at Chula Vista, for itself, its personal representatives, successors in interest and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) person on the grounds of race, color or national origin shall be -24- - ~.\\\t~ excluded from participation, denied the benefits of or be ~therwise subjected to discrimination in the use of the facilities _Jvered by this Lease; (2) that in the construction of any improvements on, over or under the premises authorized to be utilized herein and the furnishing of services thereon, no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of or otherwise be subj ected to discrimination and (3) that Lessee shall use said premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Reg ulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. Lessee agrees ~t City has the right to take such action against Lessee as the united States Government may direct to enforce this covenant. In addition, Lessee, during the term of this Lease, agrees not to discriminate in its employment practices against any employee or applicant for employment because of the employee's or applicant's race, religion, national origin, ancestry, sex, age or physical handicap. Sec. 30. Attorney's Fees. If City shall, without any fault, be made a party to any litigation commenced by or against Lessee arising out of Lessee's use or enjoyment of the demised premises and as a result of which Lessee is finally adjudicated to be liable, then Lessee shall pay all costs and reasonable attorneys' fees incurred by or imposed upon City in connection with such :igation. In any action by City or Lessee for recovery of any -25- ~,\\\,~?- sum due under this Lease, or to enforce any of the terms, covenants or conditions contained herein, the prevailing party .dll be entitled to reasonable attorneys' fees in addition to costs and necessary disbursements incurred in such action. Each party shall give prompt notice to the other of any claim or suit instituted against it that may affect the other party. Sec. 31. Entire Agreement. This Lease contains the entire agreement between the parties hereto and said Lease shall not be modified in any respect except by formal, written amendment. Sec. 32. Golf Course/Park Employees. Lessee will offer every Parks and Recrecation Department employee working at the golf course at the time that this Lease is entered into, a posi tion of employment with Lessee, terms and conditions of such employment to be at Lessee's sole discreation. If any employee so . '~ntified in the previous sentence elects not to continue golf course employment with Lessee, and said golf course employee of the Parks and Recreation Department is eligible to seek another position within the Department through utilization of the City's seniority-based "bumping procedure," and any other City employee must be discharged as a result of appl ica tion of this "bumping procedure," then Lessee agrees it will offer any employee so discharged a position with Lessee, terms and conditions of said position to be at Lessee's sole discretion. Sec. 33. Mineral Rights. City reserves all rights, title, and interest in all gas, oil, minerals or water upon or beneath the premises; provided, however, that if any water well is drilled upon the demised premises, Lessee will have the first right to ain water, without cost, for necessary and proper watering of -26- ~_\\'\t(~ the golf course. City shall have the right to enter the premises for the _ xpose of drilling, operating and maintaining such installations as are necessary or desirable for the development of gas, oil, minerals or water upon or beneath the premises, but City agrees that any such drilling, operating or maintenance shall be performed in such a manner as to minimize disruption of Lessee's operations on the demised premises, and that if any such disruption causes a reduction of Lessee's gross receipts on an annualized basis of more than ten percent ( 10%) from the previous year, then City will agree to and accept a reduction in either the minimum annual guarantee of rent or the percentage rent, whichever rental payment may be applicable. Following the conclusion of any such exploitation of gas, 'l, minerals or water located upon or beneath the premises, City wlII repair at its sole expense any damage to the premises that may be caused by such drilling, operating or maintenance and will restore the premises to a condition at least as good as the condition of the premises prior to such exploitation. City agrees that Lessee will not be held liable for any reduction in the value of the premises resulting from such exploitation. Sec. 34. Reservations to City. The premises are accepted by Lessee subject to any and all existing easements and encumbrances. City also reserves the right to install, lay, construct, maintain, repair and operate sanitary sewers, drains, storm sewers, pipelines, manholes, connections, water, oil, and gas pipelines, electric, telephone and telegraph power lines, and the appliances , appurtenances necessary or convenient in connection therewith, -27- ~_\\lt~ in, over, upon, through and across and along the premises. No right reserved by City in this Clause shall be so exercised as to -.. terfere unreasonably wi th Lessee's operations hereunder. City agrees that any rights granted to third parties pursuant to this Clause shall contain provisions that the surface of the land shall be restored as nearly as practicable to its original condition upon the completion of any construction at no cost to Lessee. Sec. 35. Miscellaneous. A. No waiver by City or Lessee of any breach of any provision of this Lease shall be deemed for any purpose to be a waiver of any breach of any other provision hereof, or of any continuing or subsequent breach of the same provision. B. Each right of the parties hereto is cumulative and is in addition to every other legal right which the party may have in ~ event of any default of the other. C. In the event any covenant, condition or provision herein contained is held to be invalid by final judgment of any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall not in any way affect any other covenant, condition or provision herein contained. D. This Lease shall be construed and enforced in accordance with the laws of the State of California. E. This Lease shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. F. In each instance where City's or City Council's approval is required before Lessee may act, such consent shall not be unreasonably withheld. G. Written notices to City hereunder shall be given by -28- ~,\\1<t)'J- registered or certified mail, postage prepaid, and addressed to rhe City of Chula Vista, Department of " Parks, 276 Fourth Avenue, _.lUla Vista, California 92010, or to such other address as City may designate by written notice to Lessee. Written notices to Lessee hereunder shall be given by registered or certified mail, postage prepaid, and addressed to American Golf Corporation, 641 North Sepulveda Boulevard, Los Angeles, California 90049 or to such other address as Lessee may designate by written notice to City. The execution of any such notice by City shall be as effective to Lessee as if it were executed by the City Councilor by resolution or order of said Council, and Lessee shall not question the authority City to execute any such notice. H. The Notice Inviting Bids and Instructions to Bidders and all attachments thereto are incorporated herein and made a part of "is Agreement. In the event of inconsistencies between this Agreement and said documents, the Agreement shall take precedence. IN WITNESS WHEREOF, City has caused this Agreement to be executed by the City and Lessee has executed the same, all as of the day and year first hereinabove written. CITY OF CHULA VISTA p~o:~ /4otc, Mayor of the City of Chula Vista ATTEST: kw~~4~ ?/ Ci ty Clerk R-1l782 -29- EXHIBIT A , ; :- ! i";;o 1= : ... i co :... ! ... Q: .... Z : _; ; ...n ; c W !'~ica C) I w. _._ W ! Q) i ... -1:0;'0 ~"- i 'U) i !::s i I!! C" . Q) !' " ;: r M)~ / ( $1/ 1\ ;. ;f t J!J -CD . ~ " \"" f -! i l .' o - tj J I. , : . 0 . . . . . ! 'R ~ ~ . . c ~ ~ ~ ;; ~ ~ ~ ~ ~ ~ ~ \! "- ! ~ ~ ~ iJI . . I ; 'i 1 t ! : .tii - U~ . . } . : - , . . , i ~ f'o, - - \ Q;; I , I : I ~ ] \ ~ I f j o ~h EXHIBIT "B" roLF' COURSE EX;;!UIPMENr proPERTY TAG NO. FIXED ISSEI' DESCRIPl'ION OU087 010444 Mower Greens 14 hp Jacobsen 62" Cut Greensk OZ2158 NCR Cash Register Tom Groundsmaster with Cutter Deck OZ2495 StaIbursh Mechanical Aerator 001580 Chair Dak Executive SWivel With Casters 002124 Secretary Chair 002906 40 x 18 FM::A Top SGL Ped Desk 003155 Rota Vator Foto Tiller 005360 20 Hardwick Gas Range . 4 Dr Metal legal file wjmap1e finish 005888 005976 006923 mympia IJme Spreader Renovair AF,rat.or 1404 p<J 006937. Air Carrpressor Devilbiss 144949 p<J 006943 HD B & D Grinder H3567591 p<J 006944 HD B&D Drill Press p<J 006950 6 Met.a1 Locker Section p<J 007184 6 Sec Met.a1 IDcker 007417 27 in Starlite Grass Catcher 007469 Ford 515 Sickle M::Jtor Bar 007514 Ar.t Metal SW Posture Chair W/Naug Upholstery 007670 1968 Chevy Pickup 6 Cy1 CS-248Z131569 -.... ~- \ \\~')- PIDPERrY TAG NO. 007864 007883 007896 007897 009099 010143 010168 010217 010647 010648 010753 010754 012004 012006 012224 012233 012237 012238 012239 012249 012269 012502 ., 012503 012504 012518 ~_ \\l~'L FIXED ASSEI' DESCRIPrION 22 in Greensm:wer WjBasket €2206 11670 1968 IH Dump Truck 1300C Eng 1001779 lD-Boy IH Gas Tract= 2444 2341 lD-Boy IH Gas Trc.ctor 2444 2342 Carm:Jdore Adding Machine Tilt Bed Utility Trailer 25 Gal Lawn Rc,ller Ja=bsen 7 Gang Tractor M:Jv.1er Ja=bsen FaiIWay Mewer Ja=bsen FaiIWay Mewer Ryan-Corf' Prccessor Ryan-Greensaire Mewing Unit M:Jv.Ting Unit Edger, Sandtrap, 2-1/4 hp, Byho Products Greens M:Jv.Ter 62" Cut Greens King II 6 Blade M:Jwing Unit 30" Cut Jacobsen Fai:rway 6 Blade l'aving Unit 30" Cut Ja=bsen FaiIW 6 Blade Mewing Unit ::0" Cut Jacobsen Fia:rw Edger 3 HP McLane Line l'arker 2" Line H & R 6 See Metal :Locker Submersible Well Pump Rich Lube 30 Gell Oil Tank Cutt.er, Rotary, Tractor FCMer, 5' CUt POOPERrY TAG NO. FIXED A.C:SEl'DESCRIPI'ION 012523 PaNer Edger McLane 012821 Gang ~'er, Jacoosen #71531 013030 Spreader, Ryan Spread-Hi te ~e1 013052 Aerator, Turf, Deeptine, R&R 013141 Lapping Mahcine, Bed Knife, Neary #300 013169 Aerc.tor, Turf, Jawbsen, W/Seeder #82201 013310 Toro Greenmaster III M:Jwer 013311 To=o C',re€rutlaster III M:Jwer 013313 M:Jwer, Lawn, Kees PCMeJ:I!aV 013314 McJwer Lawn Y..ees "PoNerI1'ON11 013416 Utility Master Vehicle, 5 wheel, West pt. Ind. \1'(;'J- '0--\ EXHIBIT C SPECIFIC GOLF COURSE CA~ITAL IMPROVEMENTS L. A minimum of 50 self-propelled golf carts with a survey schedule at 3-years old. 2. Protective fencing on the westerly side of the existing driving range. 3. Renovation of restrooms. 4. Removal of foreign grass from greens. 5. Renovation of tees. 6. Renovation of irrigation system parts. 7. Proper signs, course furnishings and appropriate landscaping. 8. New trees. Minimum of 400 per year for three years, minimum size 5 gallon. 9. Construction of new bridges to withstand flooding at appropriate locations. 10. Construction of storage bins to hold all bulk materials. 11. Construction of a channel similar in design concept provided under a Golf Course Drainage Study completed in August 1980, by Boyle Engineering providing a CFS capacity of 2900 cubic feet per second. 12. Provide paved cart paths. 13. Expand No. 13 and No. 10 tees. 14. Improve/enlarge draining improvement by No. 10 tee to facilitate drainage. 15. Improve existing lateral drainage routes through the Golf Course to the river channel in similar design concept of Golf Course Drainage Study completed in August 1980, by Boyle Engineering. 16. Halfway House - construct food concession stand to service needs of golfers if required and/or permitted by City. \0~~ ~- Q) U ~ Q) lOQ) :>t I!-< ..c:: ...; . +> Q) :>tl Q) :>to +> Q)..o O..c:: '" ..oZOO I'J ..c:: ~+> Q) Q) I'J ~ +>..c:: P.. U . 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QJ~ '0 IlJ ..-i UJ > :::J 00 ~.r:: a, >0 , CO '0 3: QJ..... .......... .... n:I -.-i.r:: Q~ QJ'O a,>: CO ~.... o UJ '- UJ 'O>:~ >: 0 QJ ftj...-44-/ UJ...... 'OUJO QJQJ01 ~ U ..-1 C4-I :::J 00 t1'U QJ UJ ~'O'O o IlJ ..... 0 QJ H.....>: UJ QJ QJ .... 0 QJ ...... ...... QJ QJ QJ.... QJ >: '0 01 01 QJ C C coo CO UJ CO ctJ >:...... >: :::J .r:: ~ ..-i '.-i 0 :;: U 0 "" ctJ - ctJ .r:: riI ..... ...... ~ 0 ~ E-< 01 >: 'OZ '0 >0 H >: ..-i ...... ~ - ctJ -.-i ctJ QJ QJ .r:: 0 1lJ>O ...... 3: E-< .r:: 5 C> .... Z 01.0 CO ..... Z UJ >:'.-i CO ~ ~ ...... riI '.-i ~ UJ cot>: a, ..... CO UJ QJ ctJ :;: >: QJ C .r:: 0 .......... .... .r:: riI ~ > ..-i U ~ .... C >: ctJ >- :::J 0 .0 <11 ~ C QJ QJ ...... .... 0 ..... 3:.... ctJ 0 '-5 U {j t>: UJ QJ o ctJ U ..-i QJ QJ <11 :::J Po. QJ QJ 01 ...... 3: UJ > > > ~ :;: UJ UJ 01 ctJ ......... '0 C 00 0 .... ,..... H ~ QJ '0 ~ QJ QJ CO ~ ~ ~ UJ - :::J QJ -.-i 0 3: IlJ > a, a, a, a, >: 0 ~ ~ .... 03: CO X I': I': I': 0 - U E-< OJ UJ ...:1UJ Po. riI H..-i H U - - - \Z 0 ...... N "" ... lO \0 t- o:> '" ...... ...... ...... ...... ...... ...... ...... , QJ- >:0 0...... ....'0 UJ C CO ctJ IlJ .......r:: .... ....01 ctJ >: QJ ,...... UJ QJ >: 01..... '0 '.-i - ~o .olO ...... lO I IlJ "".0 ...... CHULA VISTA MUNICIPAL GOLF COURSE CAPITAL IMPROVEMENT SCHEDULE THREE YEAR PLAN FIRST YEAR: A. Renovation of restrooms B. Fifty new EZ-Go golf carts C. Protective fencing for driving range D. Removal of foreign grass from greens E. Renovation of six tees F. Renovation of 1/3 of irrigation system G. Signs, landscaping, etc. H. New trees (1/3) I. Two new bridges J. Storage bins for materials Construct first 1/3 of drainage channel Construct first 1/3 of cart paths L. M. Expand No. 13 tee N. Construct first 1/3 of lateral drainage O. Construct halfway house (if required and/or permitted by City). SECOND YEAR: A. Renovation of next six tees B. Renovation of next 1/3 of irrigation C. Next 1/3 of trees D. Two more bridges E. Next 1/3 of drainage channel F. Next 1/3 of cart paths ?-_l17 r:k. G. Next 1/3 of lateral drainage Expand No. 10 tee L. Expand culvert size No. 10 tee THIRD YEAR: A. Renovation of last six tees B. Renovation of last of irrigation c. Last of new trees D. Last two bridges E. Last 1/3 of drainage channel F. Last 1/3 of cart paths G. Last 1/3 of lateral drainage ~_ \ \1~~ EXHIBIT D GENERAL MAINTENANCE SPECIFICATIONS 1. MAINTENANCE SERVICES 1. The Lessee shall perform the following maintenance services at no less than the frequencies indicated in these specifications; however, the City shall have the right to determine the extent and frequency of any additional "as needed" services. Standards and frequencies may be modified from time to time as deemed necessary by the City for the proper maintenance of golf course facilities. 2. GREENS MAINTENANCE 2. Maintain all greens according to accepted playability and industry wide standards as determined by the City at all times, observing the following minimum requirements. a. Change cups and repair ball markers daily. b. Mow greens (not less than 3/16 inch and not more than 5/16 inch) daily March through October and a minimum of four times per week (Saturday, Sunday, Tuesday and Thursday) November through February. Greens shall be mowed with a reel type mower with no less than seven (7) blades per reel. Mower shall be designed specifically for mowing golf greens and shall be of the type, make and model accepted by the golf industry. More frequent mowing may be required by the City. c. verticut all greens twice monthly February through November or as deemed necessary by the City. d. Aerify greens at least three (3) times per year or more frequently, if needed, and remove plugs the same day. -1- 9--\\\~?- TOp dress with type 31 minus sand material as to type and quantity following each aerification of greens. e. Lessee shall have the soil analyzed on each green within thirty (30) days after the start of the term of the Agreement and once every three (3) years thereafter. Under normal conditions, apply fertilizer in the quantity and type recommended by soil analysis in a manner to provide uniform growth of turf or as deemed required. f. Treat greens with proper chemicals to control insects, disease, weeds and other pests as approved by the City. 3. TEE MAINTENANCE Maintain all tees according to accepted playability and industry wide standards as determined by the City at all times, observing the folowing minimum requirements: a. Service tees daily by moving tee markers. Daily change tee towels and keep ball washers filled to proper level with water and an appropriate cleaning agent. b. Mow tees twice weekly with reel type mower at one-half inch (1/2") or less as required by the City. c. Verticut tees twice per year for thatch removal. d. Aerify tees at least three (3) times per year or more frequently if needed and top dress. e. Repair worn and damaged turf areas as they occur by overseeding or resodding to ensure playable tees at all times. f. Treat tees for control of insects, disease, weeds and other pests as necessary to maintain healthy turf. -2- (\ t'J- ~,\ g. As required within a minimum of six reasonably spaces applications, apply one pound of actual nitrogen, per application, per 1000 sq. ft. , per year, of which a minimum of two applications shall be composed of an N.P.K. formulation using a ratio of approximately 4-1-2 to provide uniform growth of turf. 4. FAIRWAY MAINTENANCE (Including Driving Range Area) Maintain all fairways according to acc2p'Leo playability and industry wide standards as determined by the City at all times, observing the following minimum requirements: a. Mow fairways with a reel type mower at one-half inch (1/2") . b. Verticut fairways as necessary for turf health and playing condition. c. Aerify all fairways at least three times per year. d. Overseed and top dress (or resod) worn or bare areas of fairways as necessary. e. Treat turf to control weeds, diseases, insects, and other pests as necessary to maintain weed free and healthy turf. f. As required within a minimum of four reasonably spaces applications, apply one pound of actual nitrogen, per application, per 1000 sq. ft. , per year, of which a minimum of two applications shall be composed of an N.P.K. formulation using a ratio of approximately 4-1-2 to provide uniform growth of turf. 5. MAINTENANCE OF OTHER TURF AREAS Maintain turf and landscaped lawn areas according to -3- \\\ ~ '}... ~- acceptable industry wide standards as determined by the City at all times, observing the following minimum requirements: a. Mowat least once per week May through October and as growth requires November through April. b. Verticut as necessary to promote healthy growth. c. Aerify at least three times per year. d. Overseed and top dress (or resod) worn or bare areas in turn as necessary. e. Treat turf to control weeds, disease, insects and other pests as necessary to maintain a healthy turf. f. As required within a minimum of four reasonably spaces applications, apply one pound of actual nitrogen, per application, per 1000 sq. ft. , per year, of which a minimum of two applications shall be composed of an N.P.K. formulation using a ratio of approximately 4-1-2 to maintain healthy turf. 6. MAINTENANCE OF NURSERY Maintain sod nurseries for greens at all times: a. Greens - Bentgrass (1) Maintain according to greens maintenance specifications (Section 2). (2) Following removal of sod replace soil and reseed. 7. MAINTENANCE OF ACCESSORY EQUIPMENT Maintain all golf course accessory equipment in clean, safe, functioning condition at all times, replacing with City approved equipment and/or materials as necessary, including but not limited to the following: -4- ~ _ \ \\ ~ 'J-- a. All signs Tee benches Tee markers and mats b. c. d. Ball washers, including tee towels and soap e. Out-of-bounds markers f. Directional flags and poles g. Distance markers (150 yards, etc.) h. Greens flags, poles and cups i. Practice green markers and cups j. Trash receptacles k. Cleat brushes 1. Perimeter and driving range fencing 8. VANDALISM AND THEFT The Lessee shall be responsible for any acts of vandalism and/or theft related to City golf course property. The Park Inspector shall be notified immediately by the Lessee in regards to any committed acts of vandalism and theft. 9. WATER COSTS The Lessee shall be responsible for paying all water costs. 10. IRRIGATION Maintain entire irrigation system, including pumping system and backflow/gate value assemblies, main lines, valves, lateral lines, and sprinkler heads and controllers in good repair, functioning properly and conforming to all related codes and regulations at all times. Irrigate as required to maintain adequate moisture for growth rate and appearance and -5- .. \(\~~ <?-- in accordance with a schedule agreed upon during the four seasons of the year. Adequate soil moisture shall be determined by visual observation, plant resiliency, turgidity, examining cores removed by soil probe, moisture sensoring devices and programming irrigation controllers accordingly. a. Consideration must be given to soil texture, structure, porosity, water holding capacity, drainage, compaction, precipitation rate, run off, infiltration rate, percolation rate, evapotranspiration, sensonal temperatures, prevailing wind condition, time of day or night, type of grass plant and root structure. This may include syringing during the day and watering during the periods of windy weather. b. In areas where wind creates problems of spraying onto private property or road rights of way, the controllers shall be set to operate during the period of lowest wind velocity which would normally occur at night. c. The Lessee shall be responsible for monitoring all systems within the demised premises and correct for: coverage, adjustment, clogging of lines, and removal of obstacles, including plant materials which obstruct the spray. d. Continuously monitor entire system and adjust and/or repair any sprinkler heads causing excessive run off, including slope area or which throw directly onto roadway paving or walks within right of way. e. All controllers shall be inspected and adjusted as required, considering the water requirements of each remote control valve (sprinkler station). -6- ~_\0t~ , f. A soil probe or tensiometer shall be used to deteDnine the soil moisture content in various areas. g. The Lessee shall observe and note deficiencies occurring from the original design and review these findings with the inspector so necessary improvements can be considered. h. Lessee shall repair all leaking or defective valves within twenty-four (24) hours following written notification from City of such a deficiency. i. In the event of a reduction of the volume of water supplied to a golf course during peak demand periods, the priority of water distribution by Lessee shall be as follows: (1) Greens ( 2) Tees (3) Fairways (4) Other turf and landscape areas. 11. OTHER REQUIRED DUTIES a. Remove all litter daily from golf course grounds including the golf course proper, maintenance yard, landscaped areas and driving range. Remove all trash and debris re- sulting from golf course maintenance as it occurs. Clean, repair and replace trash receptacles as necessary to maintain clean, safe and sanitary conditions at all times. b. Maintain shrub and groundcover plantings and lawn area in a manner to promote proper health growth and an aesthe- tically pleasing appearance at all times. -7- ~_ \ \l<(;)... c. Maintain all trees in safe, healthy and aesthetically pleasing condition at all times, keeping adjacent turf mowed and trimmed to the trunks of trees on golf courses. The use of herbicides or contact sprays of any kind to keep grass maintained at the base of trees must be approved by the inspector. d. Maintain all sand traps in raked, edged, and weed-free condition at all times, replacing sand and rakes as necessary. e. Take whatever preventive steps are necessary to protect all slope areas from erosion, fire, and rodent damage at all times. f. Control rodent and other animal pests as necessary to prevent erosion and destruction of plantings on golf course property. g. Maintain and repair as necessary surface flow lines swales, catch basins, grates, sub-surface drainage system and other drainage structures in clear, weed-free and properly functioning condition at all times. h. Observe all legal requirements and safety regulations in the use and storage of chemicals, hazardous materials, supplies, and equipment at all times according to CAL-OSHA. i. Maintain golf maintenance storage room and yard in a clean, orderly and safe condition at all times, conforming to all applicable laws and regulations. j. Protect golfers from injury and the golf course from damage in periods of frost, rainy weather, and other unusual conditions at all times. -8- ~-\\~~?- , k. Maintain bridge abutments and approaches in safe, stable condition at all times. 1. Maintain walkways, steps, handrails on walkways, headerboards and cart paths in clean, edged, safe, weed-free condition at all times. m. Maintain and repair all fencing, poultry netting and fence lines in safe, secure, and aesthetically pleasing condition at all times. n. Maintain parking lots and driveways in clean, safe, and weed-free condition at all times under conditions described in the Lease. o. Maintain the interior, unpaved service roads in safe and useable condition at all times. p. Inspect the following frequently and repair as needed: (1) All area lighting system for safe and functioning condition. (2) All golf course buildings and accessory struc- tures for clean, safe, and secure condition. (3) All golf course parking lots, walkways, and interior paved and/or unpaved service roads. q. Lessee Neglect. Any damage to the City's property which has been determined to be due to the Lessee's neglect shall be corrected at no cost to the City. Loss of plant material due to improper care is also included. r. Protection of Property During Inclement Weather. During periods of storms, the Lessee will provide supervisory -9- ~_\\1~~ , . . inspections of the project during regular assigned hours to prevent or minimize possible damage from inclement weather. The Lessee shall report storm damage to the City's representative. All work required to restore storm damaged areas or property shall be the sole obligation of Lessee. S. Reports and Schedules. The Lessee, as part of this agreement, will submit reports and schedules as requested. Such reports may include but not be limited to the following: (1) Suggestions for improving problem areas. (2) Reports of work planned. 12. THE CITY'S RIGHT TO DO WORK City reserves the right to do work as required within the contract area. If such alterations affect the provision of this agreement, the Lessee will be asked to submit a cost as a result of the alterations. -10- 9--\\\~'&-