Potential Development Pattern
Key:
New property line:
New unit:
Attachment "4"
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ORDINANCE NO. 2022-19R
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ESCONDIDO, CALIFORNIA, APPROVING AMENDMENTS
TO THE ESCONDIDO MUNICIPAL AND ZONING CODES
FOR THE IMPLEMENTATION OF SENATE BILL 9.
WHEREAS, the City of Escondido Planning and Engineering Divisions and City Attorney’s Office have reviewed the Government Code sections created by the adoption of Senate Bill 9 (“ SB 9 ”), and developed objective development standards to efficiently implement the requirements in the City of Escondido; and
WHEREAS, to create the local provisions , Planning Division staff identified the need to amend Articles 1 (General Provisions and Definitions ), 6 (Residential Zones ), and 61 (Administration and Enforcement) of the Escondido Zoning Code , and Sections 23-119 (Public dedication of rights -of-way required), 23 -120 (Public improvements required), 23 -47 (Undergrounding required), and 32.204.02 (requirements) of the Escondido Municipal Code; and
WHEREAS, the Planning Commission of the City of Escond ido, on July 12 , 202 2, held a public hearing to consider the Zoning Code Amendments and unanimously recommended approval of the items as provided in Exhibit “B”; and
WHEREAS, pursuant to the California Environmental Quality Act (“ CEQA”) and the CEQA Guidelines (Title 14 of California Code of Regulations, Section 15000 et. seq.), the City is the Lead Agency for the Project, as the public agency with the principal responsibility for approving the proposed Amendments; and
WHEREAS, on August 24, 2022, and September 14, 2022, the City Council of the City of Escondido did hold duly noticed public hearings as prescribed by law. At said hearings, the City Council received and considered the reports and recommendations of the Planning Commission and City staff, and gave all 141
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persons full opportunity to be heard and to present evidence and testimony respecting said matter.
Evidence was submitted to and considered by the City Council, including, without limitation:
a. Written information, and other material, submitted as part of the Amendments; b. Oral testimony from City staff, interested parties, and the public; c. The staff reports, dated August 24, 2022, and September 14, 2022, with their attachments as well as City staff’s recommendation on the Amendments, which is incorporated herein as though fully set forth herein; and
d. Additional information submitted during the public hearing.
The City Council of the City of Escondido, California, DOES HEREBY ORDAIN as follows:
SECTION 1. That the above recitations are true.
SECTION 2. That the proposed Zoning Code Amendments are exempt from further review pursuant to the CEQA and the State CEQA Guidelines pursuant to Sections 65852.21(j) and 66411.7(n), in that the proposed amendments are associated with adoption of local SB 9 requirements.
SECTION 3. That the Project satisfies the requirements of state Planning and Zoning Law.
SECTION 4. That the proposed amendments to the Escondido Municipal and Zoning Codes are consistent with the Escondido General Plan and applicable Elements were reviewed as part of the amendment drafting process to ensure consistency.
SECTION 5. That, after consideration of all evidence presented, and studies and investigations made by the City Council and on its behalf, the City Council makes the substantive Findings of Fact and determinations attached hereto as Exhibit “A,” relating to the information that has been considered.
SECTION 6. That, considering the Findings of Fact and applica ble law, the City Council hereby approves said amendments, attached as Exhibit “B” and hereto and incorporated herein by this reference as though fully set forth herein.
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SECTION 7. SEPARABILITY. If any section, subsection , sentence, clause, phrase or por tion of this ordinance is held invalid or unconstitutional for any reason by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions.
SECTION 8. That as of the effective date of this ordinance, all ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 9. That the City Clerk is hereby directed to certify to the passage of this ordinance and to cause the same or a summary to be published one time within 15 days of its passage in a newspaper of general circulation, printed and published in the County and circulated in the City of Escondido. 143
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Ordinance No. 2022-19R
Exhibit “A”
FACTORS TO BE CONSIDERED / FINDINGS OF FACT
PL22-0363
Zoning Code Amendment Determinations:
1. The p ublic health, safety, and welfare will not be adversely affected by the proposed change in that the amendment under consideration is directly linked to the recent State legislation (SB 9), and adopts local objective requirements and procedures for efficiently processing two family dwelling developments and urban lot splits.
2. The proposed modifications are for all parcels zoned estate residential (R-E) and single- family residential (R-1) on the City of Escondido Zoning Map, as well as parcels in specific plans intended primarily for single-family residential development. The approval of these requirements are consistent with State law and allows for implementation of local objective development standards.
3. The uses that would be permitted by the proposed Zoning Code Amendment will not be detrimental to surrounding properties because on January 1, 2022, the provisions for SB 9 became active across the State and already appl y to every single-family residential parcel in the City of Escondido. Adoption of local requirements allows the City to establish objective development standards to ensure compatibility with existing residential neighborhoods.
4. The proposed change is consistent with the adopted General Plan as the City of Escondido must continue to provide more opportunities for housing to meet the Reginal Housing Needs Allocation of 9,607 units that have been assigned to Escondido. In addition, State law supersedes our local limitations regarding single-family residential zoning districts, and adopting local objective standards allows the ability to maintain neighborhood compatibility to the extent possible.
5. By reference, the proposed changes, pursuant to SB 9, will apply to parcels in s pecific plans designated primarily for single-family residential use. 144
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Ordinance 2022-19R
Exhibit “B”
1. THE FOLLOWING SECTIONS SHALL BE ADDED TO THE ESCONDIDO ZONING CODE:
Sec. 33-115. Two-family dwellings in single-family residential zones and specific plans
(a) Purpose. The purpose of section 33-115 is to appropriately regulate qualifying Senate Bill 9 two-family dwelling unit developments within single-family residential zones in accordance with California Government Code section 65852.21.
(b) For the purposes of this section and section 33 -116 only, the term two-family dwelling shall mean two attached or detached units on single -family zoned properties, and on properties in specific plans intended for single-family residential use.
(c) Permit required. Two family dwellings shall require processing of a major Plot Plan application as described in division 8 of article 61 of this chapter.
(1) The director of development services or their designee (Director) shall review complete applications for compliance with the requirements of this section and the underlying development standards in the zoning district or specific plan in which it is located, and any other applicable objective development standards stated in the Municipal Code. Notwithstanding language in any specific plan to the contrary, provisions of this section shall supersede where any conflict exists. The Director shall ministerially approve complete applications found to be in compliance with these standards.
(2) The Director may deny a complete application if it fails to comply with the requirements of this section, the underlying development standards in the zoning district or specific plan in which it is located , and any other applicable objective development standards stated in the Municipal Code. In addition to the foregoing, the Director may deny an application if such denial is based upon a preponderance of evidence and the written finding of the building official that the proposed two-family dwelling project would have a specific, adverse impact, as defined in Government Code section 65589.5, subdivision (d)(2), upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
Notwithstanding the foregoing, an application shall not be rejected solely because it proposes adjacent or connected structures provided that the structures meet building code safety standards.
(d) Appeals of the Director’s decision shall be governed by section 33-1303.
(1) If the development of a two-family dwelling project requires another entitlement pursuant to the Escondido Zoning Code, the two -family dwelling project shall not be approved until that entitlement p rocess is completed and approved. If 145
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Exhibit “B”
the entitlement is not approved , the two -family dwelling project cannot be approved unless it is redesigned to eliminate the need for the denied entitlement.
(e) Location.
(1) Except as specified below, two -family dwelling s shall be permitted in estate residential (R-E) and single-family residential (R-1) zones, and on properties in specific plans intended primarily for single-family residential use.
(2) Two-family dwellings shall not be permitted in the following locations:
(A) On p roperties that allow as the primary use multi-family residential, commercial, industrial, agricultural, or mixed uses, regardless of the allowance of single-family residential uses.
(B) On properties described in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Government Code section 65913.4.
(C) Within a historic district or upon property included on the State Historic Resources Inventory, as defined in section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic resource or district pursuant to a city or county ordinance.
(D) On parcels requiring demolition or alteration of any of the following types of housing:
i. Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.
ii. Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power.
iii. Housing that has been occupied by a tenant in the last three years.
(E) On parcels which an owner of residential real property has exercised the owner’s rights under Chapter 12.75 (commencing with section 7060) of Division 7 of Title 1 of the Government Code to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application.
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(F) On parcels wit h legal nonconforming uses or structures unless development of the two-family dwelling brings the property into conformance.
(f) Objective Development Standards: The development standards set forth below shall apply to all two-family dwellings. Any development standard not explicitly identified below shall be subject to the underlying zoning designation or specific plan, and all applicable provisions of this code, unless superseded by Government Code sections 65852.21, 66411.7, and 66452.6.
(1) Unit Size:
(A) The minimum unit size of any unit created as part of a two-family dwelling shall be 400 square feet.
(B) Except as described below, n o new unit constructed as part of a two- family dwelling may exceed 800 square feet.
i. New units may be up to 1,200 square feet if they meet all of the following requirements:
a. The parcel on which the two-family dwelling is located is in the R-E or R-1 zone and has a lot size of at least one and a half (1 ½) times the minimum size otherwise permitted in the zone.
b. No accessory dwelling unit or junior ADU exist on the parcel.
c. A deed restriction is recorded prohibiting the construction of an ADU or junior ADU on the parcel.
d. Existing and new dwelling units shall each have two
covered parking spaces.
e. An attached or detached garage or covered parking
space(s) associated with the 1,200 square foot unit does not exceed 450 square feet.
f. Existing and new dwelling units shall meet the minimum setbacks in the underlying zone.
g. Addition of the new unit does not result in the parcel being out of compliance with the maximum floor area ratio and lot coverage for the underlying zone.
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ii. New units may be up to 1,500 square feet if they meet all of the following requirements:
a. The parcel on which the two-family dwelling is located is in the R-E zone and has a lot size of one and one half (1 ½) times the minimum size otherwise permitted in the zone, or is in the R-1 zone and has a minimum lot size of 20,000 square feet.
b. The unit satisfies all requirements identified in subsections b through g of section 33-115(f)(1)(B)i.
iii. New units may be up to 2,000 square feet if they meet all of the following requirements:
a. The parcel on which the two-family dwelling is located is in the R-E or R-1 zone and has a lot size of at least one acre.
b. The unit satisfies all requirements identified in subsections b through g of section 33-115(f)(1)(B)i.
(C) Any future subdivision of a parcel with a two -family dwelling project shall not cause the parcel to be out of compliance with the provisions of this subsection.
(2) Setbacks and building separation:
(A) Minimum side and rear yard setbacks for a two-family dwelling shall be no less than four feet.
(B) Section 33 -104(c), projections into setbacks, shall not apply to any projects utilizing sections 33-115 or 33-116.
(C) For two family dwellings constructed on properties which have frontage on streets which have not been dedicated to their ultimate width, setbacks shall be measured from the ultimate right-of-way.
(D) Setback requirements noted above shall not apply to a legally existing detached accessory structure that is utilized as one of the two units associated with the two -family dwelling or for a new structure constructed i n the same location as a legally existing detached accessory structure.
(E) Detached dwelling units and associated covered parking shall be a minimum of 10 feet from each other unless all structures are single-story 148
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Exhibit “B”
and not more than 16 feet in height , in whi ch case the minimum separation shall be five feet.
(F) Notwithstanding subsection ( E) above, all dwellings with less than 10 feet of separation shall meet the fire resistive construction requirements contained in the California Residential and Fire codes.
(3) Maximum Height/Stories:
(A) If located within the rear or side yard setback of the underlying zoning district, the two-family dwelling shall be limited to 16 feet and one-story.
(B) If compliant with the setbacks for the underlying zoning district, the two- family dwelling shall comply with the height limitations of the underlying zoning district.
(4) Parking Requirements:
(A) At least one off-street parking space shall be provided for each new unit constructed under the provisions of this section. Said parking spaces shall be covered, and shall not be in tandem with parking spaces for any other unit on the property.
(B) The required parking shall be located onsite with the two-family dwelling the parking is associated with.
(C) Parking spaces shall be designed pursuant to section 33-769. Compact spaces are not permitted.
(D) The foregoing parking standards shall not be required in either of the following circumstances:
i. The two -family dwelling is located within one -half mile walkin g distance of either a high -quality transit corridor as defined in subdivision (b) of section 21155 of the Public Resources Code, or a major transit stop as defined in section 21064.3 of the Public Resources Code. The applicant shall be responsible for demonstrating applicability of this section; or
ii. There is a car share vehicle located within one block of the two - family dwelling.
(5) Access and easements
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(A) Vehicular access from the public right of way shall meet the following requirements:
i. Driveways that provide access to two homes shall have a minimum paved width of 20 feet.
ii. Driveways that provide access to three homes, or that provide access to parking facilities with nine or more parking spaces, shall have a minimum width of 24 feet, unless the parking facility is served by 2 one -way driveways, in which case each driveway shall be at least 12 feet wide.
iii. All driveways shall have a height clearance of at least 13 feet 6 inches, and shall be paved with cement, asphaltic concrete, or other all-weather construction material(s) and to the City Design Standards for Driveway Structural Design.
iv. Access improvements shall be provided in compliance with the City’s adopted standard drawings.
(B) Access to lots shall be in conformance with Article 39 of the Escondido Zoning Code. Dead end access shall be no longer than 150 -feet in length unless a Fire Department approved turn-around is provided. Fire Department access shall be a minimum of 20 feet in unobstructed width.
(C) Emergency access and easements for the provisio n of public facilities, utilities, and/or access shall be provided in compliance with applicable sections of the municipal code.
(6) The primary entrance for any new dwelling unit constructed as part of a two - family dwelling shall not be oriented to the side or rear property line unless the structure meets the side or rear setback established by the underlying zoning district.
(7) Each unit in a two-family dwelling shall be placed on a permanent foundation and permanently connected to the public sewer system or an onsite wastewater treatment system approved by the County of San Diego Health Department.
(8) Each unit in a two-family dwelling shall include sufficient permanent provision for living, sleeping, eating, cooking, and sanitations, including but not limited to washer/dryer hookups and full kitchen facilities.
(9) Both units in a two-family dwelling shall share the same water and sewer utility connections and meter, and shall be subject to connection fee s or capacity charges, or both.
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(g) Additional Requirements:
(1) Construction of a two-family dwelling project shall not require the demolition of more than 25 percent of the exterior structural walls of an existing dwelling unless the site has not been occupied by a tenant in the last three years.
(2) Any unit created pursuant to this section shall, if rented, be rented for a term longer than 30 days.
(3) A deed restriction prepared by the City shall be recorded against the subject property prior to issuance of any building permit(s) for a two-family dwelling.
The deed restriction shall run with the land and shall stipulate compliance with the applicable provisions of this section.
(4) New dwelling units constructed as part of a two-family dwelling shall meet the requirements of the California Building , Residential, and Fire codes, as such codes have been adopted and amended by Chapter s 6 and 11 of the Escondido Municipal Code.
(5) Both units in a two-family dwelling project shall utilize the same colors and materials. This requirement applies whether both units are constructed at the same time or if one unit is added to a property that is currently developed with an existing unit.
(6) Solar panels shall be required on newly constructed units within a two-family dwelling project in compliance with the California Energy Code.
(7) Accessory Dwelling Units:
(A) For the purposes of this subsection, Unit refers to either a primary dwelling unit, an accessory dwelling unit (ADU), or a junior ADU.
(B) Inclusive of the two -family dwelling requirements described in this section, any existing parcel may be permitted to construct up to four total units.
(C) Any parcel created pursuant to section 33-116 shall be permitted to have no more than two total units.
(D) ADUs and Junior ADUs shall be governed by the provisions of Article
70. Sec. 33-116. Urban lot split
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Exhibit “B”
(a) Purpose. The purpose of section 33-116 is to appropriately regulate qualifying Senate Bill 9 urban lot split developments within single-family residential zones in accordance with California Government Code section 66411.7.
(b) For the purposes of this section, two-family dwelling shall have the same meaning as that identified in section 33-115.
(c) Urban lot splits, as defined in section 33-8, shall be approved ministerially without discretionary review.
(d) Urban lot splits are not permitted on the following parcels:
(1) Those described in section 33-115(e)(2);
(2) Parcels that were created by a prior urban lot split;
(3) Parcels adjacent to those which the owner or someone acting in concert with the owner has previously subdivided through an urban lot split process.
(4) Parcels where subdivision would result in either of the new parcels being out of compliance with the maximum unit sizes identified in subsection 33-115(f)(1).
(5) Parcels containing more than two units, as that term is described in subsection 33-115(g)(7)(A).
(e) All provisions of the Subdivision Map Act and Escondido Municipal Code shall apply unless expressly modified in this section.
(1) No dedication of right -of-way or construction of offsite improvements shall be required as a condition of parcel map approval.
(2) If the urban lot split is proposed on a public street that has not been dedicated to its ultimate width, public access and utility easements shall be recorded as a condition of parcel map approval.
(f) Development Standards. Parcels shall be subject to all development standards of the zone in which the property is located, except as modified below:
(1) Lot size:
(A) Each newly created lot shall be at least 40% of the lot area of the parcel being divided.
(B) Each newly created parcel shall be no smaller than 1,200 square feet. 152
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(2) Setbacks, unit size, and parking requirements shall be the same as those in section 33-115(f).
(g) A parcel created by an urban lot split shall be permitted to have a total of two units.
This can be achieved through either a two-family dwelling, a single-family dwelling with an ADU, or a single-family dwelling with a junior ADU. (h) Parcels created by an urban lot split shall not be required, as a condition of ministerial approval, to correct nonconforming zoning conditions. (i) An application for an urban lot split shall not be rejected solely because it proposes adjacent or connected structures, provided that the structures meet building code safety standards and are sufficient to allow separate conveyance. (j) Access to lots shall be in conformance with Article 39 of the Escondido Zoning Code. Dead end access shall be no longer than 150 -feet in length unless a Fire Department approved turn-around is provided. Fire Department access shall be a minimum of 20 feet in unobstructed width.
(k) Each dwelling unit and parcel shall have access to, provide access to, or adjoin the public right of way. Accessibility shall be in conformance with the Building Code and Americans with Disability Act , and shall not preclude construction of future public improvements
(l) Easements for the provision of public facilities, utilities, access, and/or emergency access shall be provided as a condition of approval of an urban lot split. (m) Unless specifically exempted pursuant to Government Code section s 66411.7(g)(2) and (3), a n applicant for an urban lot split sh all sign an affidavit stating that the applicant intends to occupy one of the housing units as their principal residence for a minimum of three years from the date of the approval of the urban lot split.
(n) Units on parcels created subject to this section shall, if rented, be rented for a term longer than 30 days.
(o) Applications for urban lot splits shall be processed in the same manner as those for tentative parcel maps, and shall be subject to the applica ble requirements contained in Chapter 32 of the Escondido Municipal Code. (p) Notes shall be included on the parcel map which reference compliance with sections 33-115 and 33 -116 of the Escondido Zoning Code, and any other provisions of said code related to urban lot splits.
(q) Fees for urban lot split applications shall be the same as those assessed for other tentative parcel map and parcel map applications.
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(r) Denial of permit:
(1) The City may deny a request for an urban lot split if the building official makes a written finding, based upon a preponderance of the evidence, that the request would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of section 65589.5 the California Government Code, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. (s) Appeals:
(1) Appeals of the director’s decision shall be governed by section 33-1303.
2. THE FOLLOWING DEFINITION SHALL BE ADDED TO SEC. 33-8. DEFINITIONS OF THE ESCONDIDO ZONING CODE (IN ALPHABETICAL ORDER):
Urban lot split means the subdivision of any lot in a single -family residential zone or parcels designated for primarily single-family development in a specific plan into two lots.
3. SEC. 33-90. PURPOSE OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 33-90. Purpose.
(a) Residential zones are established to provide for residential districts of various population densities so that the various types of residential developments may be separated from each other as necessary to assure compatibility of uses within family living areas, including the necessary appurtenant and accessory facilities associated with such areas.
(b) The following classes of residential use zones are established:
(1) The agriculture residential (R-A) zone is established to provide an agricultural setting in which agricultural pursuits can be encouraged and supported within the city. The R-A zone is designed to include single-family detached dwellings and to protect agricultural uses from encroachment by urban uses until residential, commercial or industrial uses in such areas become necessary or desired.
(2) The estate residential (R -E) zone is established to provide a rural setting for family life in single -family detached dwellings. Provisions are made for the maintenance of limited agricultural pursuits as well as those uses necessary and incidental to single-family living.
(3) The single-family residential (R -1) zone is established to provide a suburban setting suitable for family life in single-family, detached dwellings. 154
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(4) The mobilehome residential (R-T) zone is established to provide a mobilehome park setting for family life in single-family detached mobilehomes. No land shall be classified into this zone where such classification would create an R-T zone area of less than four hundred thousand (400,000) square feet. (5) The light multiple residential (R-2) zone is established to provide a multifamily setting for family life in low-height, low density dwelling units in close proximity to single-family residential neighborhoods.
(6) The medium multip le residential (R -3) zone is established to provide a multifamily setting for family life in low-height, medium density dwelling units in close proximity to other multifamily neighborhoods.
(7) The high multiple residential (R-4) zone is established to provide a multifamily setting for family life in mid-height, high density dwelling units in close proximity to other multifamily neighborhoods and near the city’s center. (8) The very high multiple residential (R -5) zone is established to provide a multifamily setting for family life in higher -height, very high density dwelling units in close proximity to other multifamily neighborhoods and near the city’s center.
(c) Subsection 33 -90(a) notwithstanding, this section also serves to implement provisions of sections 65852.21 and 66411.7 of the Government Code.
4. TABLE 33-94 OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO APPEAR AS FOLLOWS:
Table 33-94
Permitted/Conditional Uses & Structures R-
A
R-
E
R-
1 R-
T
R-
2 R-
3 R-4 R-
5 Residential and Lodging
Single-family dwellings detached P P P P P1 P1 P1
Mobilehome on parcel alone, pursuant to
section 33-111 P P P P
Two-family dwelling units and urban lot
splits
P2 P2
Two-family, three-family, and multiple-
family dwellings P P1 P1 P1
Notes:
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1 No vacant or underdeveloped lot or parcel of land in any R-3, R-4, and R-5 zone shall be improved or developed at a density below seventy (70) percent of the maximum permitted density. Exceptions to the minimum density requirement may be granted in writing as part of the plan approval required by section 33-106 provided the development will not preclude the city from meeting its housing needs as described in the housing element of the Escondido general plan. Minimum density requirements sh all not apply to property owners seeking to enhance or enlarge existing dwelling units or construct other accessory structures on a site.
2 Pursuant to sections 33-115 and 33-116.
5. SEC. 33-95. PERMITTED ACCESSORY USES AND STRUCTURES OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO READ AS FOLLOWS (Note: Tables 33-95 and 33- 95a are not shown below, however they shall not be deleted from the Escondido Zoning Code. Table 33-95 shall follow subsection (a)(1) and Table 33-95a shall follow section (b)(4)):
Sec. 33-95. Permitted accessory uses and structures.
(a) Accessory uses and structures are permitted in residential zones, provided they are incidental to, and do not substantially alter the character of the permitted principal use or structure. Such permitted accessory uses and structures include, but are not limited to, those listed in Table 33-95.
(1) When provided by these regulations, it shall be the responsibility of the director to determine if a proposed accessory use is necessarily and customarily associated with, and is appropriate, incidental, and subordinate to, the principal use, based on the director’s evaluation of the resemblance of the proposed accessory use to those uses specifically identified as accessory to the principal uses and the relationship between the proposed accessory use and the principal use.
(b) The permitted types and quantities of animals allowed in residential zones is listed in Table 33-95a. Other household pets are allowed pursuant to section 33-1116 of Article 57 of this chapter.
(1) At no time shall the keeping of such animals and pets constitute a nuisance or other detriment to the health, safety, or general welfare of the community.
(2) All animal keeping is subject to the animal control and humane treatment standards in Chapter 4 of the Municipal Code (Animal Control) and other regulations found in County and State codes, including, but not limited to, State Health and Safety Code.
(3) No more than the quantities of animals specifically listed in Table 33 -95(a) or section 33-1116 shall be kept on any premises, except that offspring may be kept onsite for up to four (4) months from birth.
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(4) The number of animals allowed on properties that have been divided pursuant to section 33-116 shall be one half of that otherwise allowed in the underlying zoning district.
6. SEC. 33-97. PROPERTY DEVELOPMENT STANDARDS OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 33-97. Property development standards.
(a) In addition to the property development standards set forth in this chapter, the development standards set forth in this article shall apply to land and structures in residential zones.
(b) Properties developed pursuant to sections 33-115 or 33-116 shall be subject to the development standards contained in those sections. For any develo pment standards not addressed in those sections, the standards contained elsewhere in this chapter shall apply.
7. TABLE 33-98a OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO APPEAR AS FOLLOWS:
Table 33-98a
Zoning
Suffix
Minimum
Lot Area
(square
feet)
Average
Lot Width
(feet)
Minimum Street Lot
Frontage
Population
Density
R-T2 4,500* 55* 35 feet on a line parallel to the
centerline of the street or on a
cul-de-sac improved to city
standards1.
Frontage on a street end that
does not have a cul-de-sac
improved to city standards
shall not be counted in
meeting this requirement
except for panhandle lots.
Panhandle lots pursuant to
Article 56.
Not more than
one single-
family
dwelling may
be placed on
a lot or parcel
of land in this
zone.3
R-1-6 6,000 60
R-1-7 7,000 65
R-1-8 8,000 70
R-1-9 9,000 75
R-1-10 10,000 80
R-1-12 12,000 85
R-1-15 15,000 90
R-1-18 18,000 95
R-1-20 20,000 100
R-1-25 25,000 110
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Zoning
Suffix
Minimum
Lot Area
(square
feet)
Average
Lot Width
(feet)
Minimum Street Lot
Frontage
Population
Density
*Mobilehome parks pursuant
to Article 45 allow different lot
requirements. Title 25
provisions apply where
applicable.
R-E-20 20,000 100
20 feet or be connected to a
public street by a permanent
access easement1.
Panhandle lots pursuant to
Article 56.
R-E-25 25,000 110
R-E-30 30,000 125
R-E-40 40,000
150
R-E-50 50,000
R-E-60 60,000
R-E-70 70,000
R-E-80 80,000
R-E-90 90,000
R-E-
100 100,000
R-E-
110 110,000
R-E-
130 130,000
R-E-
150 150,000
R-E-
170 170,000
R-E-
190 190,000
R-E-
210 210,000
R-A-5 217,800
150
60 feet or be connected to a
public street by a permanent
access easement.1
Panhandle lots pursuant to
Article 56.
R-A-10 435,600
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Exhibit “B”
Notes:
1. Exception: Access to lots or parcels may be provided by private road easement conforming to the following standards:
(a) The minimum easement widths shall be 20 to 24 feet as determined by the city engineer and fire marshal; subject to the Escondido Design Standards and Standard Drawings; (b) Pavement section widths, grades and design shall be approved by the city engineer; (c) A cul -de-sac or turnaround shall be provided at the terminus to the satisfaction of the planning, engineering and fire departments.
2. Except for land that was being used for mobile homes prior to the effective date of the ordinance codified in this a rticle, no land shall be classified into this zone where such classification would create an R-T zone area of less than 400,000 square feet.
3. Properties developed pursuant to section 33 -115 and/or 33-116 shall be allowed one two-family dwelling project/Urban Lot Split.
8. SEC. 33 -106. PLAN APPROVAL REQUIRED OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 33-106. Plan approval required.
(a) Building plan review and building permits are required for the construction or modification of single -family detached dwellings, mobilehomes, and some accessory structures in residential and R -T zones. Application shall be made to the building division for plan review, which is subject to planning division confirmation of zoning compliance . Two-family dwellings and urban lot splits in single-family residential zones shall be processed pursuant to section 33-115 and 33-116 of this article, respectively.
(b) An appropriate development application for the construction or modification of more than one dwellings on any lot in R-2, R-3, R-4 and R-5 zones, multiple-family dwellings, some accessory structures, and nonresidential development in all residential zones is required pursuant to Article 61 of this chapter.
9. SEC. 33-107. BUILDING REQUIREMENTS, GENERALL OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 33-107. Building requirements, generally.
Table 33 -107 lists building requirements in r esidential zones (excluding mobilehome parks approved pursuant to Article 45).
Table 33-107
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Ordinance 2022-19R
Exhibit “B”
Building
Requirements
R-A R-E R-1 R-2 R-3 R-4 R-5 R-T*
Building height (feet),
except as otherwise
provided in this chapter
35 35 35 351 351 75 75 35
Maximum building
stories 21 31 41 41
Minimum distance
between residence and
accessory buildings
(feet)
105 105 105 105 105 105 105 105
Dwelling unit minimum
floor area (square feet)2 850 1,0006 8506 500 400 400 400 700 Maximum percent lot
coverage by primary
and accessory
structures
20% 30% 40% 50% none none none 60%
Maximum floor area
ratio (FAR)3 0.3 0.44 0.5 0.6 0.7 0.8 0.9 none
Minimum square feet
allowed for residential
and parking regardless
of the FAR
1,500 1,500 1,500 2,500 3,500 4,500 5,000 700
Notes:
1. Buildings or structures in excess of one (1) story and located adjacent to single-family zoned land, shall provide a setback equal to the abutting setback required by the single-family zone standards, plus five (5) additional feet for each story over two (2) on the property line(s) abutting the single - family zone(s) as noted in sections 33 -100 and 33 -101. Additionally, building features such as windows, doors, balconies, etc., bulk and scale shall not adversely affect the adjacent single-family property.
2. Area is exclusive of porches, garages, carports, entries, terraces, patios or basements.
3. FAR is the numerical value obtained by dividing the total gross floor area of all buildings on the site by the total area of the lot or premises.
4. Except that the maximum FAR for the RE -20 zone shall be 0.5; and for the RE -170 and RE-210 zones the maximum FAR shall be 0.3.
5. Pursuant to section 33-103(c), if the residence (or main building) and detached accessory building are both one (1) story in height, then the minimum separation requirement may be reduced to five (5) feet, unless a greater distance is required by local bui lding and fire code requirements for fire separation.
6. Dwelling unit minimum floor area does not apply to units created subject to section 33 -115. * Requirements apply unless superseded by Title 25.
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Ordinance 2022-19R
Exhibit “B”
10. SEC. 33-1314. DEFINITION AND PURPOSE OF THE ESCONDIDO ZONING CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 33-1314. Definition and purpose.
(a) Plot plan means a zoning instrument used primarily to review the location and site development of certain permitted land uses. The plot plan review process is required when any of the following are proposed in a multi -family, commercial, or industrial zone:
(1) A new building, structure, or addition;
(2) A new permitted use of land or existing structure that may require additional off-street parking;
(3) A modification of an existing development affecting the building area, parking (when a reduction in parking spaces is proposed), outdoor uses, or on -site circulation. Changes to parking areas that do not result in a reduction in parking spaces are exempt from plo t plan review, but require design review, as provided in section 33-1355(b)(2);
(4) As may otherwise be required by this chapter.
Plot plan review is not required for residential development created by a planned development or residential subdivision of single-family lots. (b) Minor plot plan may include, but shall not be limited to, a change in use with no additional floor area, minor building additions, outdoor storage as an accessory use in the industrial zones, or other site plan changes affecting site circulation and parking, as determined by the director.
(c) Major plot plan may include, but shall not be limited to, new construction, reconstruction and additions of facilities permitted in the underlying zone, or other projects that exceed thresholds for a minor plot plan, as determined by the director.
All two -family dwelling projects proposed pursuant to section 33 -115 shall be subject to the approval of a major Plot Plan.
11. SEC. 23-119. PUBLIC DEDICATION OF RIGHTS -OF-WAY REQUIRED OF THE ESCONDIDO MUNICIPAL CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 23-119. Public dedication of rights-of-way required. (a) Subject to the “individualized determination” of section 23-121, any applicant who constructs any new building or dwelling in the city shall grant necessary public dedication or have provided a grant of easement or other appropriate conveyance, as approved by the city attorney. Accessory structures with a valuation less than 161
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Exhibit “B”
twenty-three thousand eight hundred twenty -eight dollars ($23,828.00), as determined by building permit valuation, and accessory structures to single-family residences shall be exempt from this section. Rights-of-way shall also be provided for any improvements to existing facilities including rights -of-way for storm drains or other required public facilities. All rights-of-way shall be accompanied by a title examination report and be free of all liens and encumbrances. (b) The public dedications required by subsection (a) of this section shall also apply to any person who enlarges or expands any building in the city if the cost of such work exceeds the sum of twenty-three thousand eight hundred twenty-eight dollars ($23,828.00) as determined by building permit valuation. By resolution of city council, said amount may be increased annually consistent with the International Code Council valuation schedule for the appropriate construction type. (c) The required public dedications shall be granted prior to issuance of the building permit for the subject property.
(d) In determining the building permit valuation, the building official shall include the cumulative building permit valuation of multiple building permit applications within a twelve (12) month period to determine whether the development is exempt from this section.
(e) Projects developed under the provisions of sections 33 -116 of the Escondido Zoning Code shall be exempt from the provisions of this section. Easement (s) may be required for future public facilities, utilities, and/or access.
12. SEC. 23-120. PUBLIC IMPROVEMENTS REQUIRED OF THE ESCONDIDO MUNICIPAL CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 23-120. Public improvements required.
(a) Subject to the “individualized determination” of section 23-121, any applicant who constructs any building or dwelling in the city shall construct all necessary public improvements in accordance with city specifications upon the property and along all street frontages adjoining the property upon which such building is constructed unless adequate improvements already exist. Accessory structures with a valuation less than twenty -three thousand eight hundred twenty -eight dollars ($23,828.00), as determined by building permit valuation, and accessory structures to single -family residences shall be exempt from this section. In each instance, the city engineer shall determine whether the necessary improvements exist and are adequate. Each building permit application shall be so endorsed at the time it is issued. All new and redevelopment projects are subject to undergrounding of overhead utilities.
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(b) The improvements required by subsection (a) of this section shall also apply to any person who enlarges or expands any building or dwelling in the city if the cost of such work exceeds twenty -three thousand eight hundred twenty -eight dollars ($23,828.00), as determined by building permit valuation. (c) By resolution of city coun cil, such amount may be increased annually consistent with the International Code Council valuation scheduled for the appropriate construction type. Tenant and façade improvements to any building that do not result in enlargement or expansion of the buildi ng area are exempt from public improvements and undergrounding of overhead utilities.
(d) In determining the building permit valuation, the building official shall examine the cumulative building permit valuation of multiple building permit applications within a twelve (12) month period to determine whether the development is exempt from this section.
(e) Projects developed under the provisions of sections 33 -116 of the Escondido Zoning Code shall be exempt from the provisions of this section. Easeme nt(s) may be required for future public facilities, utilities, and/or access.
13. SEC. 23-47. UNDERGROUNDING REQUIRED OF THE ESCONDIDO MUNICIPAL CODE SHALL BE REVISED TO READ AS FOLLOWS:
Sec. 23-47. Undergrounding required.
(a) All development projects within the City of Escondido which are either new subdivisions or subject to section 23 -119 or 23 -120 shall be required to underground all utility distribution facilities, including cable television and other communication facilities.
(b) The developer shall make the necessary arrangements with each of the serving utilities, including those providing cable television, telephone, and other utility services, for the installation of such facilities. All transforme rs, terminal boxes, meter cabinets, pedestals, concealed ducts, and any other related facilities appurtenant to such underground utilities shall also be placed underground except in circumstances permitting above ground installations pursuant to conditions established by the director of community development.
(c) Projects developed under the provisions of sections 33 -116 of the Escondido Zoning Code shall be exempt from the provisions of this section. Easement(s) may be required for future public facilities, utilities, and/or access. 163
Item10.
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Exhibit “B”
14. SEC. 32-204.02. REQUIREMENTS OF THE ESCONDIDO MUNICIPAL CODE SHALL BE REVISED TO READ AS FOLLOWS:
32.204.02. REQUIREMENTS
Before approval of a Final or Parcel Map for a subdivision, the subdivider shall:
A. Grade and improve or agree to grade and improve all land dedicated or to be dedicated for streets or easements, bicycle ways and all private streets and private easements laid out on a Final Map or Parcel Map in such manner and with such improvements as are necessary in accordance with the Escondido City standards; B. Install or agree to install sewers or sewage disposal systems in accordance with the Private Sewage Disposal Systems ordinance;
C. Provide proof satisfactory to the City Engineer that there exists an adequate potable water supply available to each lot or parcel and that the sub-divider will install or agree to install water supply facilities to the sati sfaction of the City Engineer provided that the City Engineer may require such other system or size of water supply pipe as recommended by the water facility serving the subdivision; D. Install or agree to install as required by the City Engineer, fire hydrants and connections, which hydrants and connections shall be of a type approved by the Escondido Fire Chief; and
E. Construct or agree to construct all off -site improvements required by the City Engineer.
F. Subdivisions created under the pr ovisions of section 33 -116 of the Escondido Zoning Code shall be exempt from the provisions of this section. Easement(s) may be required for future public facilities, utilities, and/or access.
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STAFF REPORT
September 14, 2022
File Number 0610-55
SUBJECT
APPOINTMENT TO THE SAN DIEGO COUNTY WATER AUTHORITY BOARD OF DIRECTORS
DEPARTMENT
City Clerk’s Office
RECOMMENDATION
Request the City Council appoint a representative to serve on the San Diego County Water Authority Board of Directors.
Staff Recommendation: Approval (City Clerk’s Office: Zack Beck) Presenter: Zack Beck, City Clerk
PREVIOUS ACTION
On May 20, 2020, the City Council appointed Councilmember Consuelo Martinez to serve on the San Diego County Water Authority Board of Directors.
BACKGROUND
Councilmember Martinez was appointed to the San Diego County Water Authority Board of Directors to fill the remaining two years of the late Councilmember John Masson’s term. Councilmember Martinez’s term is set to expire on October 18, 2022 (Attachment 1).
Under the terms of the County Water Authority Act, members of the Board of Directors hold office for a term of six years until their successors are appointed and qualified. The new term of the City of Escondido’s representative will end on October 18, 2028.
ATTACHMENTS
a. Attachment 1 – San Diego County Water Authority Letter 165
Item11.
A
ugust 11, 2022
T
he Honorable Paul McNamara
Mayor of the City of Escondido
200 North Broadway
Escondido, CA 92025
R
e: SDCWA Term of Office for Consuelo Martinez
D
ear Mayor McNamara,
T
he San Diego County Water Authority records indicate the term of office for Consuelo Martinez, as your representative on the Water Authority's Board, will expire on October 18, 2022. Under the terms of the County Water Authority Act, members of the Board of Directors hold office for a term of six years or until their successors are appointed and qualified. The new term of your representative’s appointment to the Water Authority Board would end on October 18, 2028.
P
lease make the necessary arrangements for this appointment and notify us of your appointment.
T
hank you for your assistance with this matter and contact me at (858) 522-6614 if you have any questions.
S
incerely,
M
elinda Nelson
Clerk of the Board
C: C
onsuelo Martinez, SDCWA Board Member
Zack Beck, City Clerk, City of Escondido
Sandy Kerl, General Manager, SDCWA
Mark Hattam, General Counsel, SDCWA
SDCWA Board Officers
Attachment "1"
166
Item11.
STAFF REPORT
September 14, 2022
File Number 0600-10; A-3430
SUBJECT
REIDY CREEK GOLF COURSE MANAGEMENT AND CONCESSION AGREEMENTS
DEPARTMENT
Communications and Community Services
RECOMMENDATION
Request the City Council adopt Resolution No. 2022-124, authorizing the Mayor to execute a Golf Course Management Agreement and a Lease and Concession Agreement with Escondido Golf, LLC, Inc. for the management and operation of Reidy Creek Golf Course.
Staff Recommendation: Approval (Communications and Community Services: Joanna Axelrod) Presenter: Vince McCaw, Real Property Manager
Escondido Golf, LLC representative: Tom Bugbee
FISCAL ANALYSIS
JC Management, LLC has managed the Reidy Creek Golf Course since it opened in 2002. Under the terms of the Agreement, JC Management was responsible for the ongoing operation, management, maintenance, repair, and upkeep of the golf course and received an annual fixed base management fee.
The fee in FY 2020/21 was $86,066 and they also received 0.75% of gross revenues, which was $7,492 in FY 2020/21. The management fee increased by 3% annually.
The fee for the new management company, Escondido Golf, LLC, will decrease to $75,000 per year and increase by only 2.5% annually. In addition, they are eligible to receive an incentive fee of 10% of the net profit after debt service. The City will receive 10% of the food and beverage revenue under the Lease and Concession Agreement.
PREVIOUS ACTION
On March 1, 2001, City Council approved a ten-year Golf Course Consulting and Management Agreement with JC Management LLC to manage the Reidy Creek Golf Course and also a Lease and Concession Agreement to provide food and beverage services to the golf c ourse. The Agreement was renegotiated and on June 27, 2012, City Council approved a second ten-year Management Agreement and concurrently a Lease and Concession Agreement with JC Resorts, LLC.
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BACKGROUND
Reidy Creek is an 18 -hole executive municipal golf course that opened in 2002 and was developed in conjunction with the 222 -lot Brookside residential development approved by the City Council in July of 2000. The course is constructed on approximately 65 acres of which 25 acres was owned by the City and 40 acres was transferred to the City by New Urban West, the Brookside developer. Amenities for public use include a 2,582-yard course that offers 18 holes of golf, disc golf , and foot golf; a pro shop with golf and disc golf merchandise; and the newly renovated Clubhouse and Creekside Tavern that also serves as a venue for meetings and special events.
A 26-acre portion of the Property serves as a silt detention basin and flood control facility for large storms when runoff exceeds the carrying capacity of the Reidy Creek channel running through the site. The Course creates an approximate 100-foot-wide naturally contoured drainage channel with a 40-foot-wide natural bottom. Flows from Reidy Creek that exceed system capacity from north of the site are diverted and detained west of North Broadway on holes 11 through 17 of the golf course.
In addition to the financial operations of Reidy Creek, the City is also responsible for the debt service of tax-exempt Lease Revenue Bonds that were issued in April 2001 for the construction of the golf course.
The debt issued was intended to be paid back or subsidized by income earned at the property. Since the property has not achieved those levels of income, the General Fund is obligated to make the debt service payments which average about $361,000 a year. The current outstanding principal and interest on the bonds is $3,303,494 which will be paid in full October 2030.
In May 2022, the City requested a statement of qualifications from experienced golf course management firms and received six responses. The firms were evaluated and all six were invited to respond to a request for proposals to enter into a Golf Course Management Agreement and a Lease and Concession Agreement for operation and maintenance of the Reidy Creek G olf Course. Five proposals were received and evaluated by a six-member committee comprised of staff from Finance, Community Services, Real Property, and Public Works Department. City staff also received input from an outside consultant, Keith Cubba, National Director of Colliers’ Golf Course Advisory Services. The two top firms were invited to oral interviews in July 2022 , and Escondido Golf, LLC was selected as the most qualified to provide the requested services based on their financial operating model; experience managing a portfolio of 40 properties – the majority of which are CA -based, publicly-owned courses ; their strong marketing, outreach, and engagement plan; and their commitment to making Reidy Creek Golf Course a community asset
Staff considered comments from Council regarding concerns with the previous management agreement and made efforts to address those concerns. The previous agreements were for terms of ten years each, and it was indicated that a shorter term would be preferred. The new agreements are for a five-year term with an option to extend for four additional years. The expiration of the agreements, with the option, will coincide with payment of the bonds.
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Another area of concern in the previous agreement was the incentive payment. The previous agreement included an incentive payment of 0.75% of gross revenues. This payment was based on gross revenues and was provided regardless of the profitability of the course. The new agreement includes an incentive payment that is payable to the management company, which is 10% of the net profit after debt service.
Staff recommends entering into a Management Agreement and a Lease and Concession Agreement with Escondido Golf, LLC. The Management Agreement provides that Escondido Golf, LLC will be responsible for all operations and maintenance of the golf course facility and will be paid a fee for these services. The Lease and Concession Agreement allows Escondido Golf, LLC to provide certain food and beverage for the golf course and to provide 10% of the revenue to the City. The term of both agreements is five years and may be renewed for one additional four-year period.
RESOLUTIONS
a. Resolution No. 2022-124
b. Resolution No. 2022-124 Exhibit “A”
c. Resolution No. 2022-124 Exhibit “B”
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Item12.
RESOLUTION NO. 2022-124
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ESCONDIDO, CALIFORNIA, AUTHORIZING THE MAYOR
TO EXECUTE, ON BEHALF OF THE CITY, A GOLF COURSE
MANAGEMENT AGREEMENT AND A LEASE AND
CONCESSION AGREEMENT WITH ESCONDIDO GOLF,
LLC FOR THE MANAGEMENT AND OPERATION OF REIDY
CREEK GOLF COURSE
WHEREAS, the City entered into a Golf Course Consulting and Management Agreement for the operation and maintenance of the Reidy Creek Golf Course (“Golf Course”) with JC Management, LLC on July 1, 2012; and
WHEREAS, the City concurrently with the Golf Course Consulting and Management Agreement , entered into a Lease and Concession Agreement to provide food and beverage services to the Golf Course with JC Resorts LLC on July 1, 2012; and
WHEREAS, the term of those agreements expired on July 1, 2022 and are continuing on a month- to-month basis; and
WHEREAS, it is in the best interest of the City to enter into a Golf Course Management Agreement with Escondido Golf, LLC, to operate and manage the golf course; and WHEREAS, it is in the best interest of the City to enter into a Lease and Concession Agreement with Escondido Golf, LLC to provide food and beverage services to the Golf Course.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Escondido, California as follows:
1. That the above recitations are true.
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2. That the City Council authorizes the Mayor to execute, on behalf of the City, a Golf Course Management Agreement and a Lease and Concession Agreement with Escondido Golf, LLC. A copy of the Golf Course Management Agreement is attached as Exhibit “A” and incorporated by this reference, subject to final approval as to form by the City Attorney’s Office. A copy of the Lease and Concession Agreement is attached as Exhibit “B” and incorporated by this reference, subject to final approval as to form by the City Attorney’s Office.
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GOLF COURSE
MANAGEMENT AGREEMENT
By and Between
CITY OF ESCONDIDO
a California municipal corporation
(“Owner”)
and
ESCONDIDO GOLF, LLC
a California Limited Liability
Company(“Manager”)
DATED:
Resolution No. 2022-124
Exhibit "A"
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ....................................................................................................1 ARTICLE II. RETENTION OF MANAGER ..........................................................................7 ARTICLE III. EMPLOYEES; ACQUISITION AND OWNERSHIP .......................................7 ARTICLE IV. RIGHTS AND RESPONSIBILITIES OF MANAGER AND OWNER ..........10 ARTICLE V. RESTRICTED ACTIVITIES OF MANAGER ................................................12 ARTICLE VI. COMPENSATION TO MANAGER ...............................................................14 ARTICLE VII. [INTENTIONALLY DELETED] ....................................................................15 ARTICLE VIII. BANK ACCOUNTS, DEPOSITS AND WITHDRAWALS ...........................15 ARTICLE IX. FINANCIAL AND REPORTING MATTERS ................................................17 ARTICLE X. REPRESENTATIONS AND WARRANTIES ................................................19 ARTICLE XI. ALTERATIONS AND IMPROVEMENTS ....................................................21 ARTICLE XII. INSURANCE, INDEMNITY AND CASUALTY ...........................................22 ARTICLE XIII. TERMINATION ..............................................................................................26 ARTICLE XIV. TRANSFER AND ASSIGNMENTS ...............................................................29 ARTICLE XV. LEGAL REQUIREMENTS .............................................................................29 ARTICLE XVI. CERTAIN TRANSACTIONS .........................................................................30 ARTICLE XVII. MISCELLANEOUS .........................................................................................31
i
Resolution No. 2022-124
Exhibit "A"
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LIST OF EXHIBITS
Exhibit “A” Reidy Creek Golf Course Property Description
Exhibit “B” Reidy Creek Golf Course Equipment
.
ii
Resolution No. 2022-124
Exhibit "A"
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GOLF COURSE CONSULTING AND
MANAGEMENT AGREEMENT
THIS GOLF COURSE MANAGEMENT AGREEMENT (the “Agreement”) is dated as of , 2022 by and between the CITY OF ESCONDIDO, a California municipal corporation (hereinafter referred to as the “Owner”), and ESCONDIDO GOLF, LLC, a California Limited Liability Company (hereinafter referred to as “ Manager”). Owner and Manager are sometimes hereinafter referred to as the “parties.”
RECITALS:
A. Owner is the owner of approximately 65 acres designated for an 18-hole (executive) municipal golf course, maintenance building and yard, clubhouse and storage area commonly referred to as the Reidy Creek Golf Course (the “Golf Course”) located in San Diego County, City of Escondido, and more particularly described in Exhibit “A” attached hereto and incorporat- ed herewith.
B. Manager is qualified in the development, supervision, operation and management of golf course properties and Manager is qualified to supervise, operate and manage the Golf Course.
C. Owner desires to retain Manager to manage and operate the Golf Course on behalf of Owner and Manager has agreed to manage and operate the Golf Course upon the terms and subject to the conditions hereinafter set forth.
D. This Agreement is for Special Services that Manager is qualified to perform due to specialized training and experience. Owner does not have the workforce capable of providing the services included in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Manager agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Defined Terms. When used in this Agreement, including any exhibits or schedules attached hereto, the following terms shall have the meanings ascribed to them in this paragraph 1.1 unless the context indicates a contrary intent:
“Annual Capital Funding Reserve” shall be established by setting aside 5% of the gross profit for the year in a reserve account for future capital improvements. The use of these funds will be at the discretion of Owner after input from Manager.
“Approved Annual Business Plan ” shall mean a plan covering the operation and maintenance of the Golf Course for the applicable Budget Period, prepared by Manager and Resolution No. 2022-124
Exhibit "A"
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approved by Owner in accordance with paragraph 9.1(b) of this Agreement, as such plan may be amended from time to time.
“Bonds” shall mean the $6,300,000 aggregate principal amount of Escondido Joint Powers Financing Authority 2001 Lease Revenue Bonds (Reidy Creek Project) authorized by and at any time Outstanding under the Indenture.
“Bond Debt Service” shall mean, during any period of computation, the amount obtained for such period by totaling the following amount: (a) the principal and interest amount of the Escondido Joint Powers Financing Authority Lease Revenue Refunding Bonds, Series 2013A (which refunded the Authority’s 2001 Lease Revenue Bonds that financed the construc tion of Reidy Creek Golf Course) coming due and payable by their terms in such period; (b) the associated bond expense (Custodial Bank Fees).
“Budget Period” shall mean a period of time consisting of a Fiscal Year.
“Capital Expense Funding Requirement” shall mean the amount of funds to be set aside by Owner to pay for capital expense items to maintain the Golf Course in accordance with paragraph 2.2 of this Agreement. Owner and Manager shall review Capital Expense Funding Requirements for each Budget Period and no less than quarterly to determine the amount of funds, if any, needed to maintain the Golf Course. Owner shall deposit into the Operating Account the Capital Expense Funding Requirement within thirty (30) days of notice by Manager.
“Corporate Personnel” shall mean certain employees of Manager that perform services at or with respect to multiple properties, including properties other than the Golf Course and including from locations other than the Golf Course, and that in such event such employ ees shall be treated as Golf Course Personnel Expenses to the extent that their services are reasonably attributable to the Golf Course; provided, however, that any allocated costs incurred by Manager in performance of its obligations hereunder shall be pr orated based upon a reasonable nexus and benefit among all properties which benefit from such expenditure. Corporate Personnel shall include centralized accounting, risk management, information technology, human resources, and marketing.
“Equipment and Supplies” shall mean all equipment and supplies, including furniture, fixtures and equipment (FF&E), together with all replacements thereof and additions thereto, used or useful in the operation of the Golf Course.
“Event of Default” shall mean the occurrence of any of the events described in paragraphs
13.1 or 13.2 of this Agreement, together with the expiration of any cure period applicable to such event.
“First Term Year ” shall mean the time period commencing on the Management Commencement Date and concluding on the first anniversary of the first day of the month in which the Management Commencement Date occurs.
“Fiscal Year” shall mean a year beginning on July 1 of one calendar year and ending on June 30 of the following year.
Resolution No. 2022-124
Exhibit "A"
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“Golf Course Personnel” shall mean all individuals performing services for the Golf Course, whether employees of Manager or its Affiliates.
“Golf Course Personnel Expenses ” shall mean all costs and expenses relating to the employment of any Golf Course Personnel, incl uding reasonable costs in the course of, and necessary for the performance of, obligations hereunder, including, without limitation, all direct and allocated wages, salaries, benefits, taxes, and similar expenses relating to Golf Course Personnel and Corporate Personnel.
“Gross Profit” shall mean Gross Revenue less Operating Expenses.
“Gross Revenue” shall mean gross receipts of every kind and nature from the use and operation of all or any portion of the Golf Course whatsoever, whether for cash, credit or barter, including, without limitation: green fees; rental fees for golf carts, golf clubs and bags, and other rental items; golf bag storage charges; reservation fees; fees for golf handicap and service; rental and concession payments; revenue generated from space rentals and from meetings, banquets, parties, receptions, tournaments, and other group gatherings; revenues from golf schools; rental income from communication site lease agreements; amounts received as compensation for lessons and clinics; receipts from special events; receipts from vending machines; proceeds of any business interruption insurance (net of Manager’s reasonable cost of settling such claim with the insurance carrier); and proceeds of any condemnation award made with respect to any temporary taking of any Equipment and Supplies; provided, however, Gross Revenues shall not include amounts received on food and beverage sales (it being understood that such sales are the subject of a Lease and Concession Agreement of even date herewith), condemnation awards or receipts from sales of Equipment and Supplies under threat of condemnation other than any award made in a temporary taking and in the nature of an award for lost income; proceeds of property insurance (other than business interruption insurance); rebates, refunds and discounts (but not credit and card discounts paid to a credit card system) to customers given in the ordinary course of obtaining such revenues; excise, sales, use and similar taxes collected directly from customers as a part of the price of any goods or services and which are accounted for by Manager to any governmental agency or authority; tips and gratuities paid to Manager or any of its employees; or income or interest derived from cash, securities and other property acquired and held for investment by Manager. Sales upon credit and any other sales or provision of service with respect to which payment is not immediately received shall be treated on an accrual basis and shall be included in the gross receipts for the period during which the goods or services to which such sale relates are delivered or performed.
“Hazardous Materials” shall mean any substance or material containing one or more of any of the following: hazardous material, hazardous wast e, hazardous substance, regulated substance, petroleum, pollutant, contaminant, or asbestos, as such terms are defined as of the Management Commencement Date or thereafter defined in any applicable laws, or otherwise generally understood, in such concentra tions or amounts as may require clean -up or removal, or which may present a significant risk of harm to guests, invitees, or Golf Course Personnel.
“Improvement” shall mean each improvement constructed by Owner on the Golf Course.
“Indenture” shall mean the Indenture of Trust dated as of April 1, 2001, between the Escondido Joint Powers Financing Authority (of which Owner is a member) and the Trustee Resolution No. 2022-124
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relating to the Bonds, as originally executed or as it may from time to time be supplemented, modified or amended by supplemental Indenture.
“Legal Requirements” shall mean any and all laws, statutes, ordinances, codes, orders, rules, regulations, permits, licenses, authorizations, entitlements, official orders and requirements of, and conditions imposed by, all federal, state and local governmental regulatory agencies and authorities which are as of the date hereof or hereafter become applicable to the Golf Course or the operation thereof, including, without limitation, any of the foregoing relating in any wa y to Hazardous Materials or environmental matters.
“Management Commencement Date” shall mean , 2022.
“Management Fee” shall mean the Fixed Fee and Incentive Fee set forth in paragraph 6.1 of the Agreement
“Net Profit” shall mean Gross Profit less annual Bond Debt Service Costs less Annual Capital Funding Reserve requirement.
“Operating Contracts ” shall mean all contracts now or hereafter entered into for the maintenance, management, and operation of the Golf Course, including, without limitation, all such contracts for utilities to be provided for the Golf Course and all such contracts for Equipment and Supplies.
“Operating Expenses” shall mean, for any period of measurement, all costs and expenses which relate to the maintenance and operation of the Golf Course and/or any services or concessions operated in connection therewith, which costs and expenses shall include, without limitation, ordinary and extraordinary maintenance and repair costs, advertising and promotion expenses, administrative and general office expenses, costs of inventories, Equipment and Supplies, costs of goods and services provided or performed in connection with the operation of the Golf Course, such as water, sewer and other utilities, office and other supplies, commissions, credit card discounts and commissions, music and entertainment, fuel, licenses and permits, refuse removal, vermin control and similar services, Golf Course Personnel Expenses, any maintenance or monitoring systems or requirements in effect from time to time with respect to the Golf Course, the monthly Management Fee, equipment lease financing expense, the cost of any insurance provided in accordance with the terms of this Agreement and any other then unpaid amounts payable to Manager or others with respe ct to any of the foregoing. The parties acknowledge and agree that Manager operates and may from time to time in the future operate additional golf courses and resort properties besides the Golf Course, and that Manager shall have the right in the exercise of its reasonable business judgment to determine to procure certain services and goods, and incur certain expenses in connection therewith, in the aggregate with some or all of such additional golf courses and properties. In such event, the calculation of “Operating Expenses” with respect to the Golf Course shall include (a) with respect to any such aggregate expenses incurred pursuant to Centralized Purchasing, as contemplated by paragraph 3.5 hereof, only the amounts chargeable to the Golf Course pursuant to said paragraph 3.5, and (b) with respect to any other such aggregate expenses (including without limitation salaries and similar expenses of employees spending less than all of their time on matters related to the Golf Course), only such portion of such aggregated expenses as Manager reasonably concludes are allocable to the Golf Course. “ Operating Expenses” shall not include, however, (i) any depreciation of any Improvements or Equipment Resolution No. 2022-124
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and Supplies, (ii) any income, property or similar taxes payable by Owner or Manager, whether related to the Golf Course or otherwise, (iii) Bond Debt Service; (iv) the cost of capitalized fixed assets purchased for the Golf Course (the threshold for capitalization of specific assets shall be $5,000) pursuant to the Capital Expense Funding Requirement.
“Operating Expenses Reserve ” shall mean, for each month, an amount equal to all Operating Expenses anticipated to be expended during the immediately following calendar month (including the monthly Manag ement Fee and such Operating Expenses as are indicated by the Approved Annual Business Plan).
“Outstanding” when used as of any particular time with reference to Bonds or any additional Bonds authorized by the Indenture, shall mean (subject to the provisi ons of Section
11.09 of the Indenture) all Bonds or additional Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under the Indenture.
“Owner Board” shall mean the Board of Directors of Owner, or such other appropriate governing body of Owner.
“Person” shall mean an individual, partnership, corporation, limited liability company, association, government or any department or agency thereof, trustee, trust, or any other entity or organization.
“Term” shall mean the Management Commencement Date through the last day of the month preceding the fifth anniversary of the Management Commencement Date. This Agreement may be renewed for one additional four-year period at the City’s sole discretion.
“Term Year” shall mean (a) the First Term Year, or (b) in the case of each subsequent Term Year after the First Term Year, each full year after the first anniversary of the first day of the month on which the Management Commencement Date occurs.
“Trustee” shall mean BNY Western Trust Company, a banking corporation organized and existing under the laws of the State of California, or its successors, as provided in the Indenture.
“Unavoidable Delay” shall mean any delay due to such causes as strikes; lockouts; acts of God; inability to o btain labor, materials, equipment or supplies; governmental restrictions; moratoria; initiatives; referenda; a war or enemy action or invasion; terrorist act and/or threats of terrorism; civil commotion; insurrection; a riot; mob violence; malicious mischief or sabotage; an unusual failure of transportation; fire or any other casualty; unusually adverse weather conditions; a condemnation; any restraining order or any law, order or regulation of any governmental, quasi- governmental, judicial or military authority; or other similar causes or circumstances beyond the control of Manager, any of which has the effect of delaying, hindering or preventing Manager’s performance of its obligations hereunder, provided (i) Manager shall have notified Owner of such event by notice given not later than fifteen (15) days after Manager has knowledge of the occurrence of such event, and (ii) Manager shall use reasonable efforts to minimize the effects thereof.
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1.2. Index of Other Defined Terms . In addition to those terms defined above, the following terms shall have the respective meanings given thereto in the paragraphs indicated below.
Defined Terms Paragraph
Agreement Preamble
Annual Operating Report 9.3(b)(ii)
Business Plan Disapproval Notice 9.1(b)
Centralized Purchasing 3.5
Data
3.7 Fixed Fee 6.1(a)
Golf Course Recital “A”
Incentive Fee 6.1(b)
Liabilities 12.2
Liability Escrow 12.1(l)
Manager Preamble
Manager Advances 8.4
Manager Legal Requirements 15.1(a)
Manager Marks 3.6
Manager Representatives 12.2
Monthly Disbursement Date 8.3(a)
Monthly Operating Report 9.3(b)(i)
Notice of Operating Account Deficiency 8.2
Owner Preamble
Owner Legal Requirements 15.1(b)
Owner’s Representatives 12.3
Parties Preamble
Preliminary Annual Business Plan 9.1(a)
Projected Monthly Operating Expenses 8.2
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Termination Fee 13.5
Transfer 14.1
WARN Act 13.4(e)
Year End Financials 9.3(b)(ii)
1.3. Accounting Terms . For purposes of this Agreement, all accounting terms not otherwise defined herein or in any Exhibit shall have the meanings ascribed to them in conformity with generally accepted accounting practices and principles consistently applied.
ARTICLE II.
RETENTION OF MANAGER
2.1. Agreement to Consult and Manage. Owner hereby appoints and retains Manager, and Manager hereby accepts such appointment and retention, as the exclusive manager of the Golf Course during the Term with full power and authority to carry out all responsibilities of Manager upon the terms and subject to the conditions hereinafter set forth.
2.2. Standards of Performance; Relationship Between Owner and Manager .
Manager accepts the relationship of trust and confidence established between Manager and Owner by the terms of this Agreement. Manager shall manage, operate and maintain the Golf Course as an executive municipal daily fee golf course. Manager covenants with Owner to furnish i ts best skill and judgment in performing its obligations hereunder, and shall at all times provide such supervision, management, operating and maintenance services in a manner which maintains the good name and business reputation of Owner. Manager shall perform its duties and obligations under this Agreement in an efficient, expeditious, prudent and economical manner, consistent with the commercial interests of Owner as reasonably understood by Manager, in accordance with standard industry practices with respect to the management and operation of similarly situated golf courses in comparable residential developments of the type described in this paragraph.
Notwithstanding the foregoing, Manager’s obligations under this Agreement are subject to (a) Owner’s approval of the Annual Business Plans reasonably appropriate for the operations contemplated hereby, (b) the availability of funds in the Operating Account sufficient to cover the Operating Expenses, including the Operating Expenses Reserve associated herewith, (c) funds provided by Owner to meet the Capital Expense Funding Requirement for each Budget Period; and (d) payment of all amounts due to Manager hereunder.
ARTICLE III.
EMPLOYEES; ACQUISITION AND OWNERSHIP
OF EQUIPMENT AND SUPPLIES
3.1. Employees of Manager.
(a) Golf Course Personnel . Manager shall employ, on its behalf and not as employees of Owner, at all times a sufficient number of capable employees to enable it to fulfill Manager’s obligations hereunder, properly, adequately, safely and economically and in accordance with the standards set forth in this Agreement. All matters pertaining to the employment, training, supervision, compensation, promotion and discharge of such employees shall be the sole Resolution No. 2022-124
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responsibility of Manager; provided, however, that if Owner determines that the continued employment of any employee of Manager at the Golf Course is not in the best interest of Owner or the Golf Course, Owner shall so notify Manager in writing. Upon receipt of such notice, Manager shall take appropriate steps, consistent with applicable law, to cause such employee to cease his or her affiliation with the Golf Course.
(b) Non-Solicitation. Without Manager’s express written consent, neither Owner nor Owner’s Representatives shall directly or indir ectly, knowingly solicit (on behalf of itself or any third party), hire or enter into any contract for services with any person who, at the time of such action is, or at any time during a period of eighteen (18) months immediately preceding such action, wa s one of Manager’s or its Affiliate’s supervisory or managerial employees. If Owner or Owner’s Representatives do solicit (on behalf of itself or any third party), hire or enter into a contract for services such person contrary to the above, it shall pay Manager, as liquidated damages and not as a penalty, an amount equal to twice the annual salary earned by said individual at the time of termination of such employee’s employment with Manager.
3.2. Ownership of Golf Course . Manager is entering into this Agreem ent as an independent contractor to provide the services set forth in this Agreement. By entering into this Agreement, Manager acknowledges that it is acquiring no rights whatsoever in the Golf Course, or any portion thereof (including the Improvements and any trade names, trademarks, logos, emblems and similar identifying matters) or the Equipment and Supplies, except a nonexclusive and revocable license to enter upon the Golf Course and use the Equipment and Supplies, if and to the extent reasonably necessary to carry out its obligations pursuant to this Agreement. Manager further agrees that it will not assert, in any legal action or otherwise, any additional right or interest in the Golf Course, or any portion thereof (including the Improvements and any trade names, trademarks, logos, emblems and similar identifying matters) or the Equipment and Supplies, and will not record any lis pendens or any similar notice of lien against the Golf Course, or any portion thereof (including the Improvements and any trade names, trademarks, logos, emblems, and similar identifying matters) under any circumstances. In no event shall Manager alter or improve any portion of the Golf Course, except as otherwise expressly permitted under this Agreement (including, without limitation, Article XI hereof).
3.3. Operating Contracts. Manager shall, subject to the Approved Annual Business Plan, execute all Operating Contracts necessary or appropriate for the maintenance, management and operation of the Golf Course in accordance with this Agreement. All such Operating Contracts shall be executed in the name of Manager on its own behalf. Manager promptly shall notify Owner in writing of Manager’s execution of any material Operating Contract, and, if requested by Owner, promptly shall deliver to Owner a true, correct and complete copy thereof. Manager’s execution of any Operating Contract shall be subject to any and all restrictions set forth in Article V hereof. All Operating Contracts shall provide that, notwithstanding any termination of this Agreement by Owner and subsequent management of the Golf Course by Owner or a third party, the counter- party thereto shall, at Owner’s request, continue its performance thereunder under the terms and conditions of such Operating Contract. If Manager is then managing other golf courses similar to the Golf Course, Manager shall use its commercially reasonable efforts to utilize the same individuals or entities under the Operating Contracts as are performing similar services or providing similar supplies for Manager in connection with such other golf courses, if such a procedure would result in cost savings to Owner.
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3.4. Acquisition of Equipment and Supplies. Manager shall, at Owner’s expense and in accordance with the Approved Annual Business Plan, as applicable, purchase and keep the Golf Course adequately furnished with all necessary Equipment and Supplies. The cost of such Equipment and Supplies shall be charged to Owner at net cost and Owner shall be credited with all rebates, refu nds, allowances and other discounts allowed to the purchaser, whether such purchaser is Manager or a third party. For purposes of clarification, both Owner and Manager agree that all Equipment and Supplies acquired pursuant to this paragraph 3.4 are exclusively the property of Owner.
3.5. Centralized Purchasing . Manager, at its discretion, may adopt a centralized purchasing system whereby services or Equipment and Supplies are procured and/or purchased for participating golf courses from suppliers designated by Manager or from or through any of Manager’s Affiliates (“ Centralized Purchasing ”). Manager may cause the Golf Course to participate in such Centralized Purchasing and Manager or an Affiliate of Manager shall receive pro-rata reimbursement for any addition al overhead expense attributable to Centralized Purchasing. At the request of Owner, Manager shall furnish to Owner a price list of all services or Equipment and Supplies proposed or to be purchased by Manager through its Centralized Purchasing. Notwithstanding the foregoing, the cost to the Golf Course of any purchase accomplished through the Centralized Purchasing, (including the aforementioned fee) taking into account the quality and payment terms of the items purchased, shall be no greater than the cost of which such services and items could be obtained by Golf Course from unaffiliated third parties, (without payment of the aforementioned expense reimbursement). If such maximum amount is determined to have been exceeded, the excess shall be rebated immediately by Manager to Owner.
All such purchases shall be made by Manager as agent for and at the sole risk of Owner. Manager makes no representations or warranty with respect to such services and items so purchased and shall not be responsible for defects in any property acquired, but shall enforce third party warranties regarding such services and items.
3.6. Intellectual Property . Any and all data which Manager collects, develops or produces during the Term, whether alone or jointly, with Owner or others, which relate to the operation of the Golf Course (the “ Data”), shall be joint property belonging to Manager and Owner. As joint owners of the Data, Manager and Owner shall be free to deal with and dispose of, in whole or in part, its ownership interest in the Data without the consent of the other party, and without accounting to the other party so long as it can do so without exposing the other party to any liability. In no event, however, shall either party be entitled to grant any exclusive license or other exclusive right in any aspect of the Data or in any intellectual property right associated with any Data to any person or entity, unless the granting party has obtained the non -granting party’s prior written consent for such grant, which consent may be withheld by the non-granting party in its sole discretion.
ARTICLE IV.
RIGHTS AND RESPONSIBILITIES OF MANAGER AND OWNER
4.1. Manager Obligations During the Term. Subject to any requirements, restrictions or limitations set forth elsewhere in this Agreement (including, without limitation, the requirements set forth in paragraph 2.2), Manager shall perform or cause to be performed all tasks reasonably necessary or appropriate in connection with the ongoing operation, management, Resolution No. 2022-124
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maintenance, repair and upkeep of the Golf Course. In performing such tasks Manager shall, at a minimum, do the following:
(a) Interview, select and retain consultants and other professionals as may be reasonably necessary or appropriate for the maintenance and operation of the Golf Course as set forth in the Approved Annual Business Plan, as applicable.
(b) Perform all ministerial acts and duties reasonably relating to (i) the payment in accordance with the Approved Annual Business Plan, as applicable, of all indebtedness, taxes an d assessments on personal property, and other undisputed obligations due or to become due with respect to the Golf Course that accrue on or after the Management Commencement Date, (ii) the preparation, submission and processing of all claims regarding the Golf Course (other than claims under any insurance to be maintained by Owner hereunder, with respect to which Manager will reasonably cooperate with Owner in its preparation, submission and processing of claims), (iii) the prosecution of any appeal of any tax or assessment on personal property for the Golf Course, and (iv) the giving and receipt of notices, reports and other communications arising out of, connected with or incidental to the management, maintenance or preservation of the Golf Course.
(c) Diligently pursue the collection of all sums due and owing to Owner or Manager from all purchasers of goods and/or services relating to the Golf Course.
(d) Complete an inventory of all equipment and provide that inventory to Owner, so that Owner can enter into its vehicle management database system. Subject to the Approved Annual Business Plan, as applicable, coordinate with Owner for the purchase of required Golf Course Equipment and Supplies. Manager shall ensure that Owner is provided an updated inventory periodically, or as requested by Owner.
(e) Subject to the Approved Annual Business Plan, as applicable, pay, when due, all costs and expenses of every kind associated with the management, maintenance and operation of the Golf Course, as provided for herein.
(f) Comply in all respects with the Approved Annual Business Plan, as applicable (except to the extent provided under paragraphs 8.3 and 9.2).
(g) Subject to the Approved Annual Business Plan, as applicabl e, repair or replace, as reasonably necessary, all Equipment and Supplies. Manager shall maintain all equipment in compliance with applicable regulations, including any required inspections. Maintenance and repair of City owned golf course equipment (Exhibit B) shall be performed by Owner. Consumables shall be the responsibility of the Manager, which includes but not limited to blade sharpening, blade replacement and wear items related to grounds and facility/property maintenance.
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4.2. Management Period.
(a) Manager. In addition to any obligations under paragraph 4.1, during the Management Period, and subject to any requirements, restrictions or limitations set forth elsewhere in this Agreement (including, without limitation, the requirements set forth in paragraph 2.2), Manager shall, at a minimum, do the following:
(i) Fully comply, and cause the operations of the Golf Course to fully comply, with all Legal Requirements; provided, however, that the foregoing shall not apply to any Legal Requirements governing construction and construction quality, compliance with which, as set forth in paragraph 4.2(b), shall be the sole responsibility of the Owner.
(ii) Apply for, obtain and maintain in full force and effect, at Owner’s expense, all permits, licenses des ignated by Owner or necessary or appropriate for the management, maintenance and operation of the Golf Course. All such permits and licenses shall be the sole and exclusive property of Owner other than any permit or license personal to the party providing services.
(iii) Immediately advise Owner of any discovery by Manager of any Hazardous Materials in, on or about the Golf Course, promptly following such discovery jointly determine with Owner the actions which should be taken to ensure that the presence of such Hazardous Materials in, on or about the Golf Course will not constitute a violation of any Legal Requirement, and upon approval by Owner of any actions recommended by Manager, promptly take, or cause to be taken, such actions.
(iv) Fully cooperate with and pr ovide any necessary or appropriate documents, materials and information to, any financial institution or other lender designated by Owner.
(v) Make recommendations to Owner from time to time concerning improvements and modifications to the Golf Course.
(vi) Obtain and maintain in full force and effect all insurance reasonably required to be maintained by Manager pursuant to Article XII hereof.
(vii) Comply with all agreements governing or affecting the Golf Course that Manager has been provided with, including, without limitation, mortgages, deeds of trust, regulatory agreements, declarations of covenants, conditions and restrictions, and similar documents, copies of which shall be provided to Manager upon execution of this Agreement.
(viii) Prepare and allow inspection by Owner of the plans, books, records and other materials specified in Article IX, below.
(ix) Maintain in full force and effect all Operating Contracts (other than such Operating Contracts as may be replaced by a new Operating Contract) reasonably necessary or appropriate for the ongoing management, maintenance and operation of the Golf Course in accordance with this Agreement.
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(x) Negotiate, prepare, review and, subject to the restrictions set forth in Article V, execute all agreements reasonably necessary or appropriate for the management, maintenance and operation of the Golf Course.
(xi) Obtain all warranties provided by, and lien waivers from, laborers, materialmen and contractors in connection with any Improvements made pursuant to Article XI.
(b) Owner. During the Management Period, and subject to any requirements, restrictions or limitations set forth elsewhere in this Agreement (including, without limitation, the requirements set forth in paragraph 2.2), Owner:
(i) May design, construct and install Improvements on the Golf Course, provided, however, Owner shall provide Manager no less than sixty (60) days notice prior to commencement of construction of the Improvements, with a copy of the plans for the proposed Improvements. Within fifteen (15) days of receipt thereof, Manager shall review the plans for the Improvements and shall approve or disapprove the same, which approval shall not be unreasonably withheld. If Owner wishes to proceed with the Improvements notwithstanding the disapproval of Manager, the parties shall revise the Approved Annual Business Plan, as applicable, to reflect any negative impact that the construction and/or implementation of the Improvements will have on Golf Course operations. All Improvements constructed by Owner or at the direc tion of Owner shall be constructed in a workmanlike manner in accordance with standard construction industry practices.
(ii) Shall provide Manager with notice and copies of all agreements governing or affecting the Golf Course, including, without limitation, m ortgages, deeds of trust, regulatory agreements, declarations of covenants, conditions and restrictions, and similar documents.
(iii) Shall not modify or amend any agreement governing or affecting the Golf Course in such a manner that imposes additional burdens on the Manager or results in the reduction of Gross Revenues, as defined herein, without the written consent of Manager in its sole discretion.
ARTICLE V.
RESTRICTED ACTIVITIES OF MANAGER
5.1. Without the prior written consent of Owner, which consent may be granted or withheld in Owner’s sole discretion, Manager shall not do, or cause or permit to be done, any of the following during the Term of this Agreement:
(a) Borrow or lend money, or enter into any other agreement, in the name of Owner.
(b) Assign, transfer, pledge, compromise or release any of the claims of or debts of $5,000 or more due Owner, except upon payment in full.
(c) Arbitrate or consent to the arbitration or settlement of any claim of or against Owner or any other dispute or controversy involving Owner.
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(d) Make, execute or deliver in the name of Owner, or with respect to any of the assets of Owner, any assignment for the benefit of creditors or any bond, confession of judgment, chattel mortgage, security instrument, deed, guarantee, indemnity bond or surety bond.
(e) Lease, sell, transfer, assign, convey, pledge, encumber, mortgage, hypothecate or otherwise dispose of property of the Golf Course, or, except as contemplated in the Approved Annual Business Plan, as applicable, lease, sell, transfer, assign, convey, pledge, encumber, mortgage, hypothecate or otherwise dispose of any Equipment and Supplies or enter into any contract for any such purpose.
(f) In the name of or on behalf of Owner, endorse any note, or become a surety, guarantor, or accommodation party to any obligation.
(g) Knowingly violate any Legal Requirement.
(h) Commence or maintain in the name of or on behalf of Owner any action or proceeding, whether judicial, administrative or otherwise.
(i) Engage in, or permit, suffer or allow the occurrence of, any storage, holding, release, emission, discharge, generation, abatement, disposition, handling, or transportation of any Hazardous Materials. Notwithstanding the foregoing, Manager need not secure the prior written consent of Owner before utilizing, in connection with the reasonable and necessary operation and maintenance of the Golf Course, fertilizers, and pesticides, provided such substances are utilized in compliance with all applicable laws and regulations and the procedures approved by Owner as required in subparagraph (j) below.
(j) Except for fertilizers and pesticides reasonably necessary for operation and maintenance of the Golf Course, and except for any other substances and materials reasonably necessary for the operation and maintenance of the Golf Course (all of which substances and materials shall be used, installed, kept and maintained in compliance with all applicable Legal Requirements), place or cause to be placed in, on, or around the Golf Course any Hazardous Materials . In the event Manager discovers or obtains actual knowledge of the existence of any Hazardous Materials in, on or around the Golf Course other than permitted to be so located in compliance with this Agreement, Manager shall promptly notify Owner. Manager shall not be responsible for any Hazardous Materials (i) present on the Golf Course prior to the date hereof, unless deposited thereon by Manager (ii) placed on the Golf Course in accordance with the terms of this Agreement, (iii) which becomes present on the Golf Course after the date hereof as a result of some event or condition over which Manager had no control, or (iv) which becomes present on the Golf Course after termination of this Agreement and all extensions hereof; provided, however, Manager shall promptly notify Owner of any notice received by Manager from any governmental authority of any actual or threatened violation of any applicable laws, regulation or ordinances governing the use, storage or disposal of any Hazardous Materials and shall cooperate reasonably with Owner in responding to such notice and correcting or contesting any alleged violation. Manager hereby agrees to indemnify, Resolution No. 2022-124
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defend (with attorneys approved by Owner, which approval shall not be unreasonably withheld) and hold Owner free and harmless from any cost, expense, penalty or other liability incurred by Owner as a result of any breach by Manager of its obligations under this paragraph. Owner hereby agrees to indemnify, defend (with attorneys approved by Manager, which approval shall not be unreasonably withheld) and hold Manager free and harmless from any cost, expense, penalty or other liability incurred by Manager as a result of or in connection with or arising from Hazardous Materials other than that caused by Manager’s breach of this Article V.
ARTICLE VI.
COMPENSATION TO MANAGER
6.1 Management Fee. Commencing on the Management Commencement Date, Owner shall pay Manager for services rendered under this Agreement a Management Fee for each month of the operating Term (and proportionally for any fraction of a month) comprised of the following:
(a) A Fixed Fee to be paid during the following time periods:
(i) First Term Year. Commencing on Management
Commencement Date and continuing through
, the sum of $75,000 to be paid in equal monthly
installments of $6,250.
This Fixed Fee is to increase by the lessor of 2.5% or CPI annually in subsequent years for the duration of the Agreement.
(b) In addition to the Fixed Fee, an “Incentive Fee ” equal to ten percent (10%) of Net Profit (Gross Profit less Bond Debt Service, less the annual Capital Funding Reserve), shall be paid annually and covered and calculated in the manner set forth in paragraph 6.2 below.
(c) In addition to the Fixed Fee and the Incentive Fee, an Accounting Fee of $1,250 shall be paid monthly. This Accounting Fee is to increase by 2.5% annually for the duration of the Agreement.
6.2. Payments of Management Fee.
(a) Manager shall be paid the Fixed Fee for each month on the first day of such month (except with respect to the Fixed Fee paid pursuant to Paragraph 6.1(a)(i) for the first partial month, which fee for such partial month shall be paid within five (5) days of the Management Commencement Date).
(b) The Incentive Fee will be calculated annually by taking 10% of the Net Profit, which is equal to Gross Profit of Reidy Creek Golf Course less the annual Bond Debt Service, less the annual Capital Funding Reserve requirement for Reidy Creek Golf Course and paid by the 30 th of the month following the last month of the fiscal year. The Incentive Fee shall Resolution No. 2022-124
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not exceed the percentage of the Total Fee (Fixed Fee and Incentive Fee combined) allowable under IRS revenue procedures.
ARTICLE VII.
[INTENTIONALLY DELETED]
ARTICLE VIII.
BANK ACCOUNTS, DEPOSITS AND WITHDRAWALS
8.1. Operating Account . On or before the Management Commencement Date, Manager shall establish one or more bank accounts for the Golf Course, which accounts (collectively, the “Operating Account”) shall be used by Manager for the deposit on a daily basis of all Gross Revenues collected from the operation of the Golf Course. Manager and Manager’s designee(s), whose names shall be disclosed to Owner, shall be sole signatory on the Operating Account. Manager shall not allow any f unds withdrawn from the Operating Account to be commingled with any other funds or bank accounts of Manager.
8.2. Deposits Into Operating Account . From and after the Management Commencement Date, Manager shall deposit into the Operating Account all Gross Reven ues received with respect to the Golf Course promptly following receipt thereof. If at any time Manager determines that the funds on deposit in, or projected to be on deposit in, the Operating Account (taking into account reasonably anticipated Gross Revenues) will be insufficient to pay, as and when due, Operating Expenses reasonably anticipated to be incurred in accordance with the Approved Annual Business Plan during the immediately succeeding thirty (30) calendar days, Manager shall have the right to provide written notice (a “ Notice of Operating Account Deficiency”) to Owner of the amount of such anticipated deficiency. The Notice of Operating Account Deficiency shall set forth the anticipated amount of the deficiency. Within five (5) days following receipt of a Notice of Operating Account Deficiency, Owner shall deliver to Manager for deposit into the Operating Account an amount equal to the anticipated deficiency specified on the Notice of Operating Account Deficiency.
8.3. Withdrawals from Op erating Account . Manager shall use the funds in the Operating Account as follows:
(a) Monthly Withdrawals. On the first business day of each calendar month from and after the Management Commencement Date, (each “Monthly Disbursement Date ”) Manager shall use the funds in the Operating Account in the following order of priority:
(i) First, to the payment of any outstanding or accrued Management Fees and to reimburse Manager for any outstanding Manager Advances;
(ii) Next, Manager shall retain in the Operating Account an amount sufficient to pay for (A) all unpaid Operating Expenses (other than Management Fees previously paid pursuant to paragraph 8.3(a)(i)), (B) all Operating Expenses anticipated to be expended during such calendar month, as indicated by the Approved Annual Business Plan;
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(iii) Next, to the extent that there are funds remaining on deposit in the Operating Account in excess of the amounts necessary for the application of the foregoing clauses (i) through (ii), Manager shall retain in the Operating Account an additional amount equal to the Operating Expenses Reserve; and
(iv) Next, to the extent that there are funds remaining on deposit in the Operating Account in excess of the amounts necessary for the application of the foregoing clauses (i) through (iii), Manager shall disburse the balance of such funds to Owner.
Manager shall have the right to withdraw funds retained in the Operating Account pursuant to the foregoing clauses (ii) and (iii) as and when necessary in order to pay any accrued and unpaid Operating Expenses to the extent that the same are consistent with the Approved Annual Business Plan; provided, however, Manager, in the performance of its duties under this Agreement may not deviate by more than ten percent (10%) from any budget department set forth in the Approved Annual Business Plan.
(b) Withdrawals to Pay Expenses . In addition, Manager shall use funds from time to time on deposit in the Operating Account to pay accrued and unpaid Operating Expenses.
8.4. Manager Advances For Operating Expenses . The parties acknowledge that Manager shall have the right, but not the obligation, to advance its own funds (collectively, the “Manager Advances”) to pay Operating Expenses consistent at all times with paragraph 8.3. Any Manager Advances shall be reimbursed pursuant to paragraph 8.3.
8.5. No Other Withdrawals From Operating Account. Except for disbursements and withdrawals made in accordance with paragraphs 6.1, 6.2, 6.3, 8.3, 8.4, 8.7, 13.4(c) and 13.5 hereof and expenditures made in connection with an emergency as contemplated by paragraph 9.2 hereof, Manager shall not have the right to withdraw or disburse funds from the Operating Account unless such withdrawal or disbursement first has been approved in writing by Owner.
8.6. Separate Accounts of Manager. Notwithstanding the provisions of paragraphs
8.1 and 8.7, Manager shall establish a separate account for the payment of all payroll expenses of the Golf Course Personnel (which account may be a general payroll account estab - lished by Manager for the payroll expenses of all employees of Manager). Manager may withdraw funds from the Operating Account from time to time for deposit into such separate payroll account; provided, however, that (a) in no event shall the amount so withdrawn from the Operating Account exceed the actual amount necessary to pay the Golf Course Personnel, (b) in no event shall any such withdrawal from the Operating Account occur more than two (2) business days prior to the date upon which such funds are to be paid out of the separate payroll account to the Golf Course Personnel, and (c) any sums so withdrawn immediately shall be deposited into such separate payroll account.
8.7. Change of Banks . If so directed by Owner in writing, Manager shall change a depository bank or any depository arrangements effected pursuant to this Agreement.
8.8. Adjustment of Capital Expense Funding Requirement . In the event that Manager determines in its reasonable judgment that the Capital Expense Funding Requirement is Resolution No. 2022-124
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insufficient to provide for anticipated capital and other expenses for any Budget Period, the parties shall negotiate in good faith an increase to the Capital Expense Funding Requirement.
ARTICLE IX.
FINANCIAL AND REPORTING MATTERS
9.1. Annual Business Plan.
(a) Submission of Preliminary Annual Business Plan. No later than ninety (90) days prior to the commencement of each Budget Period, Manager shall submit to Owner for Owner’s written approval, which approval shall not be unreasonably withheld, a proposed budget and business plan (the “ Preliminary Annual Business Plan”) for the Golf Course for the next Budget Period. The Preliminary Annual Business Plan shall include such operating and capital budgets, fee schedules and plans as Owner may from time to time direct for the Budget Period.
(b) Approval of Preliminary Annual Business Plan. Each Preliminary Annual Business Plan is subject to the written approval of Owner, not to be unreasonably withheld. Subject at all times to paragraphs 9.1(f), Owner shall have twenty-five (25) days from its receipt of the Preliminary Annual Business Plan and other materials required under paragraph 9.1(b) in which to approve or disapprove the Preliminary Annual Business Plan, which approval not be unreasonably withheld. If Owner does not disapprove the Preliminary Annual Business Plan in writing within twenty-five (25) days after receipt of the Preliminary Annual Business Plan, the same shall be deemed approved.
If required by Owner, Manager shall make a presentation to Owner summarizing the major expenditures and changes in the Preliminary Annual Business Plan as compared to the prior Budget Period. If Owner disapproves the Preliminary Annual Business Plan, Owner shall give Manager written notice (the “ Business Plan Disapproval Notice ”) of such setting forth Owner’s reasons for such disapproval. As soon as reasonably practical after Manager’s receipt of the Business Plan Disapproval Notice, but in no event more than fifteen (15) days thereafter, Manager shall submit to Owner, for its written approval, a revised Preliminary Annual Business Plan which shall resolve all matters previously reasonably disapproved by Owner. The Preliminary Annual Business Plan, as approved by Owner or modified as set forth herein, shall be referred to in this Agreement as the “Approved Annual Business Plan .” Owner shall consent to reasonable changes or amendments to the Approved Annual Business Plan. If the Approved Annual Business Plan is modified with the approval of Owner during any Budget Period, the most current modified plan shall be deemed the Approved Annual Business Plan under this Agreement.
(c) Six Month Review of Annual Business Plan . Within six months following the approval of the Annual Business Plan, Manager and Owner shall jointly review the Annual Business Plan, and work in good faith to make any revisions necessary.
(c) In the event the Management Commencement Date does not correspond with the start of the Fiscal Year, the first and last business plans shall be prepared for the partial Fiscal Years.
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(d) Owner Acknowledgment and Consent to Changes in the Approved Annual Business Plan. Owner acknowledges, notwithstanding Manager’s experience and expertise in relation to the operation and management of facilities similar to the Golf Course, projections contained in each Approved Annual Business Plan are estimates only and further are subject to and may be affected by changes in financial, economic and other conditions and circumstances beyond Manager’s control. The Approved Annual Business Plan should not be relied upon as a guarantee of performance. Owner shall consent to reasonable changes or amendments to the Approved Annual Business Plan.
9.2. Emergency Expenditures . Whenever, by reason of circumstances beyond the control of Manager, emergency expenditures up to Five Thousand Dollars ($5,000) are in the opinion of Manager required to be made for the lawful or safe operation of the Golf Course, Manager may make such expenditures, notwithstanding that such expenditures are not provided for in the Approved Annual Business Plan. Manager, in all events, shall take reasonable steps to secure Owner’s prior consent and shall advise Owner as soon as possible of the nature of the emergency, the proposed remedy and the cost thereof.
9.3. Books and Reports.
(a) Book of Account. Throughout the Management Period, Manager shall maintain in accordance with generally accepted accounting principles, consistently applied, full and separate books and records for the Golf Course with entries supported by documentation sufficient to allow Owner to ascertain the accuracy of such books and records. Manager shall maintain and safeguard such books and records at Manager’s office at the Rancho Bernardo Inn, or at such other location as may be agreed upon in writing. Manager shall provide copies of such b ooks and records to Owner at other locations upon receipt by Manager of a request therefor from Owner. Manager shall ensure such control over accounting and financial transactions as is necessary to protect Owner’s assets from theft, error or fraudulent activity by Manager’s employees.
(b) Reports.
(i) Manager shall prepare and submit to Owner, on or before the twentieth (20th) of each calendar month during the Management Period and the twentieth (20th) day of the calendar month immediately following any month in which this Agreement is terminated, a “ Monthly Operating Report ”, which Monthly Operating Report shall be in such form and contain such operating information as Owner may reasonably require and shall include a report of a statement of income and expenses (including the Management Fee) for the Golf Course for the preceding month and a balance sheet for the Golf Course, each prepared on an accrual basis, and, if requested by Owner, an analysis of variances from the Approved Annual Business Plan, as applicable.
(ii) Manager shall prepare and submit to Owner no later than ninety (90) days after the end of each Fiscal Year an “ Annual Operating Report ” for the immediately preceding Fiscal Year (or in the case of a partial Fiscal Year at the beginning or end of the Management Period, an Annual Operating Report for such partial Fiscal Year), which Annual Operating Report shall be in such form and contain such information as Owner may reasonably Resolution No. 2022-124
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require, including, without limitation, the information described i n paragraph 9.3(b)(i) above (collectively, the “Year End Financials”).
(c) Supporting Documentation . As additional supporting documentation for the monthly financial statements and Year End Financials required under paragraph (b) above, unless otherwise directed by Owner, Manager shall make available at Manager’s principal office at the Rancho Bernardo Inn, the following: (i) all bank statements and bank deposit slips; (ii) detailed cash receipts and disbursement records; (iii) detailed trial balances for receivables and payables and billed and unbilled revenue items; (iv) paid invoices; (v) supporting documentation for payroll, payroll taxes and employee benefits; (vi) appropriate details of accrued expenses and property records; (vii) daily or weekly reports maintained by Manager in connection with its ongoing operation and management of the Golf Course; and (viii) information necessary for preparation of Owner’s tax returns, including a description of and a statement of accounts expended in connection with repairs, capital improvements, taxes and professional fees.
9.4. Owner’s Right to Audit . All books, records and supporting documentation maintained by Manager pursuant to this Article IX shall be the sole and exclusive property of Owner, and shall be made available to Owner at Owner’s request at reasonable times during normal business hours, and, in addition, in connection with independent financial audits of Owner, as well as audits by any governmental authority. Owner, or persons appointed by Owner, may, during ordinary business hours, examine all books, records and files maintained for Owner by Manager.
Owner may perform any audit or investigation relating to Manager’s activities at any office of Manager if such audit or investigation relates to Manager’s activities for Owner. Without limiting the provisions of paragraph 9.4 hereof, should Owner or Owner’s employees or representatives discover any errors in record keeping, Manager shall correct such discrepancies promptly upon discovery and make necessary adjustments. Manager shall inform Owner in writing of the action taken to correct any audit discrepancies.
ARTICLE X.
REPRESENTATIONS AND WARRANTIES
10.1. Owner’s Representations and Warranties . As a material inducement for Manager to enter into this Agreement, Owner represents and warrants to Manager that as of the Management Commencement Date:
(a) Owner is duly organized, validly existing, and in good standing under the laws of its state of organization, is duly qualified to do business in the state in which the Golf Course is located, and has full power, authority, and legal right to execute, perform and timely observe all of the provisions of this Agreement to be performed or observed by Owner. This Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Owner enforceable in accordance with the terms hereof.
(b) To the best of Owner’s knowledge, there is no claim, litigation, proceedings or governmental investigation pending against or relat ing to Owner, the properties or business of Owner or the transactions contemplated by this Agreement, which does or may reasonably be expected to materially and adversely affect the ability Resolution No. 2022-124
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of Owner to enter into this Agreement or to carry out its obligations hereunder, and there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Manager.
(c) This Agreement constitutes a valid and binding obligation of Owner and does not and will not constitute a breach of or default under any of the organizational or governing documents of Owner or the terms, conditions, or provisions of any law, order, rule, regulation, judgment, decree, agreement, or instrument to which Owner is a party or by which it or any substantial portion of its assets (including the Golf Course) is bound or affected.
(d) No approval of any third party (including any ground lessor or the holder of any Mortgage) is required for Owner’s execution and performance of this Agreement that has not been obtained prior to the execution of this Agreement.
(e) Owner, at its own expense, shall maintain in full force and effect starting on the Management Commencement Date and throughout the Management Period its legal existence an d the rights required for it timely to observe and perform all of the terms and conditions of this Agreement.
(f) Owner is the sole owner of a fee interest in and to the Golf Course as defined in Recital A of this Agreement, subject to customary title excepti ons. Owner has full power, authority and legal right to own a fee interest in and to such real and personal property.
10.2. Manager’s Representations and Warranties . As a material inducement to Owner to enter into this Agreement, Manager represents and warrants to Owner that as of the Management Commencement Date:
(a) Manager is duly organized, validly existing, and in good standing under the laws of its state of organization, is duly qualified to do business in the state in which the Golf Course is located, and has full power, authority, and legal right to execute, perform and timely observe all of the provisions of this Agreement to be performed or observed by Manager. This Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Manager enforceable in accordance with the terms hereof.
(b) There is no claim, litigation, proceedings or governmental investigation pending against or relating to Manager, the properties or business of Manager or the transactions contemplated by this Agreement, which does or may reasonably be expected to materially and adversely affect the ability of Manager to enter into this Agreement or to carry out its obligations hereunder, and there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Owner.
(c) This Agreement constitutes a valid and binding obligation of Manager and does not and will not constitute a breach of or default under any of the organizational or governing documents of Manager or the terms, conditions, or provisions Resolution No. 2022-124
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of any law, order, rule, regulation, judgment, decree, agreement, or instrument to which Manager is a party or by which it or any substantial portion of its assets is bound or affected.
(d) No approval of any third party is required for Manager’s execution and performance of this Agreement that has not been obtained prior to the execution of this Agreement.
(e) Manager, at its own expense, shall maintain in full force and effect starting on the Management Commencement Date and throughout the Management Period its legal existence and the rights required for it timely to observe and perform all of the terms and conditions of this Agreement.
ARTICLE XI.
ALTERATIONS AND IMPROVEMENTS
11.1. Approvals; Execution of Agreements. Unless expressly provided to the contrary in this Agreement, previously approved by Owner in writing or contemplated in the Approved Annual Business Plan, Manager shall not make any alterations of or Improvements to the Golf Course. Following any approval by Owner of any such alterations or Improvements, Manager shall negotiate, and submit to Owner for its approval (which approval shall not be unreasonably withheld), all necessary agreements relating to such alter ations and Improvements. Owner may, at its option, require that such agreements be executed in the name of Owner.
11.2. Supervision. Throughout the Management Period, Manager shall, if and to the extent requested by Owner, coordinate and supervise all minor alterations of and Improvements to the Golf Course and in connection therewith shall take such actions as Owner may direct and all steps necessary or appropriate to cause such alterations and Improvements to be completed in a timely, efficient, economical and workmanlike manner, and in accordance with all Legal Requirements.
ARTICLE XII.
INSURANCE, INDEMNITY AND CASUALTY
12.1. Insurance Requirements of Manager
(a) Insurance Types: Effective as of the Management Commencement Date, Manager shall obtain all insurance required to be obtained by Manager under this Agreement as follows:
(i) Commercial General Liability . Insurance Services Office (“ISO”) Form CG 00 01 covering Commercial General Liability on an “occurrence” basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury, with limits no less than $10,000,000 per occurrence.
(ii) Workers’ Compensation. Workers' Compensation as required by the State of California, with Statutory Limits, and Employer’s Liability I nsurance with limits of no less than $1,000,000 per accident for bodily injury or disease.
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(iii) Automobile Liability. ISO Form CA 00 01 covering any auto (Code 1), or if Manager has no owned autos, hired (Code 8) and non-owned autos (Code 9), with limits no less than $1,000,000 per accident for bodily injury and property damage, unless waived by the Owner and approved in writing by the Owner’s Risk and Safety Division.
(iv) Property Insurance. Property insurance against all risks of loss to any Manager improvements or betterments, at full replacement cost with no coinsurance penalty provision. The property insurance is to be endorsed to include Legal Liability Coverage (ISO Form CP 00 40 04 02 or equivalent) with a limit equal to the replacement cost of the leased property, Property insurance shall include not less than $1,000,000 Fire Legal liability on the Premises, including improvements and betterments owned by the Owner, and shall name the Owner as a loss payee.
Manager shall also provide fire insurance on all personal property contained within or on the Premises. The policy must be written on an “all risks” basis, excluding earthquake and flood.
The policy shall insure for not less than 90% of the actual cash value of the personal property, and Manager shall name the Owner as an additional insured.
(v) Interruption of Business Insurance. Business interruption insurance of a type and in amounts sufficient to cover loss of profits and rent, management fees, any mortgage payments, real estate taxes, hazard insurance premiums, and adequate cleaning, lighting and maintenance of the Golf Course for a period of at least 12 months, and with a waiting period of no more than seven days.by which the minimum monthly rent will be paid to the Owner for a period of up to one year if the Premises is destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements.
(vi) Crime Insurance. Crime Insurance, which includes Employee Theft and Theft, Disappearance and Destruction coverage parts, in an amount not less than $500,000 per occurrence with a deductible no greater than $100,000 that will pay on behalf of the Manager to the Owner for losses caused by the dishonest acts of the Manager or Manager’s employees, agents, or designees.
(vii) Employment Practices Liability . Employment Practices Liability insurance in an amount not less than $2,000,000.
(b) If Manager maintains broader coverage and/or higher limits than the minimums otherwise required by this Lease, the Owner requires and shall be entitled to the broader coverage and/or the higher limits maintained by Manager.
(c) Each insurance policy required by this Lease must be acceptable to the Owner’s Attorney and shall meet the following requirements:
(i) Acceptability of Insurers. Insurance coverage must be provided by an insurer authorized to conduct business in the state of California with a current A.M. Best’s rating of no less than A-: FSC VII, or as approved by the Owner.
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(ii) Additional Insured Status . Manager’s Commercial General Liability, Automobile Liability, Crime, and Business Interruption policies must name the Owner (including its officials, officers, agents, employees, and volunteers) specifically as an additional insured under the policy on a separate endorsement page. The Commercial General Liabil ity additional insured endorsement shall be at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, and CG 20 37 if a later edition is used.
(iii) Primary Coverage. Manager’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the Owner, its officials, officers, agents, employees, and volunteers. Any insurance or self-insurance maintained by the Owner, its officials, officers, agents, employees, or volunteers shall be in excess of Manager’s insurance and shall not contribute with it.
(iv) Notice of Cancellation . Each insurance policy shall provide that coverage shall not be canceled, except with prior written notice to the Owner.
(v) Waiver of Subrogation. Manager hereby grants to the Owner a waiver of any right to subrogation that any insurer of Manager may acquire against the Owner by virtue of the payment of any loss under such insurance. Manager agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this subsection shall apply regardless of whether or not the Owner has received a waiver of subrogation endorsement from the insurer.
Any Workers’ Compensation policy required by this Lease shall be endorsed with a waiver of subrogation in favor of the city for all work performed by Manager, its agents, representatives, employees and volunteers.
(vi) Self-Insurance. Manager may, with the Owner’s prior written consent, fulfill some or all of the insurance requirements contained in this Lease under a plan of self - insurance. Manager shall only be permitted to utilize such self -insurance if, in the opinion of the Owner, Manager’s (i) net worth and (ii) reserves for payment of claims of liability against Manager are sufficient to adequately compensate for the lack of other insurance coverage required by this Lease. Manager’s utilization of self-insurance shall not in any way limit the liabilities assumed by Manager pursuant to this Lease.
(vii) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the Owner.
(viii) Verification of Coverage. At the time Manager executes this Lease, Manager shall provide the Owner with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting the insurance coverage required by this Lease), which shall meet all requirements under this Lease. The Owner reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this Lease, at any time.
(ix) Special Risks or Circumstances. The Owner reserves the right, at any point during the term of this Lease, to modify the insurance requirements in this Lease, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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(x) No Limitation of Obligations . The insurance requirements within this Lease, including the types and limits of insurance coverage Manager must maintain, and any approval of such insurance by the Owner, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Manager pursuant to this Lease, including but not limited to any provisions within this Lease concerning indemnification.
Failure to comply with any of the insurance requirements in this Lease, including but not limited to a lapse in any required insurance coverage during the term of this Lease, shall be a material breach of this Lease. In the event that Manager fails to comply with any such insurance requirements in this Lease, in addition to any other remedies the Owner may have, the Owner may, at its sole option, (i) immediately terminate this Lease; or (ii) order Manager to immediately vacate the Premises until Manager demonstrates compliance with the insurance requirements in this Lease.
(xi) Insurance Premiums . Unless otherwise noted, all insurance described under this Article XII to be carried by Manager will be maintained by Manager at Owner’s expense in accordance with the Approved Annual Business Plan, as applicable, with insurance carriers who are legally operating in the State of California and acceptable to Owner, which acceptance shall not be unreasonably withheld. In no event will such insurance be terminated or otherwise allowed to lapse prior to termination of this Agreement or such longer period as may be specified herein. Manager may provide the insurance des cribed in this Article XII in whole or in part through a policy or policies covering other liabilities and projects of Manager. Owner shall not be entitled to a pro -rata refund for partial year coverage on pre -paid insurance premiums.
(xii) Damages. Nothing contained in these insurance requirements is to be construed as limiting the type, quality or quantity of insurance Manager should maintain or the extent of Manager’s responsibility for payment of damages resulting from its operations under this Agreement.
12.2. Indemnification by Owner . To the extent permitted by law, during the Management Period of the Agreement, Owner shall indemnify, protect, defend (through counsel reasonably satisfactory to Manager), and hold harmless Manager and Manager’s Affiliates, shareholders, partners, officers, directors, trustees, beneficiaries, members, employees, agents, and legal representatives and the successors and assigns of each of the foregoing (collectively, the “Manager Representatives”) from, and Manager Representati ves shall not be liable to Owner for, any and all liability, loss, cost, claims (whether administrative or judicial) or expense (including, without limitation, damage to Owner’s property, workers compensation and/or employee claims, third party claims and reasonable attorneys’ fees and expenses) resulting from or arising from or relating to the ownership, development, construction, management, operation or maintenance of the Golf Course (collectively, the “ Liabilities”), except to the extent those Liabilities arise from (a) Manager’s or a Manager’s Representatives willful or criminal misconduct, gross negligence or fraud in connection with or relating to the performance by Manager of its obligations under this Agreement, except to the extent that such Manage r’s misconduct, gross negligence or fraud is caused by, is a result of, or is done at the direction of an Owner Indemnified Party, or (b) any acts by Manager or Manager’s Representatives that are Resolution No. 2022-124
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beyond the scope of authority that Manager reasonably believ es it has been granted pursuant to this Agreement.
(a) Duty to Defend. Manager will notify Owner of any action, suit, or proceeding potentially giving rise to an indemnity obligation hereunder, and Owner may, and upon Manager’s request shall, at Owner’s expense, defend such action, suit, or proceeding, or cause the same to be defended by counsel designated by Manager.
(b) Survival. The obligations of Owner under this paragraph 12.2 shall survive the expiration or earlier termination /of this Agreement (regardless of the basis therefor).
(c) Insurance. Notwithstanding anything to the contrary in this Section
12.2, the Manager and the Manager Representatives shall look first to the appropriate insurance coverages in effect pursuant to this Agreement prior to seeking indemnification under this Section 12.2 in the event any claim or liability occurs as a result of injury to persons or damage to property, regardless of the cause of such claim or liability; provided, however, if the insurance company denies coverage or reserves rights as to coverage, then the Manager and the Manager Representatives shall have the right to seek indemnification, without first looking to such insurance coverage.
12.3. Indemnification by Manager . To the extent permitted by law during the Management Period, and unless otherwise caused by the gross negligence or willful misconduct of Owner or Owner’s Representatives (as defined below) or by a breach by Owner of its obligations hereunder, Manager agrees to indemnify, protect and defend (through counsel reasonably satisfactory to Owner) and hold harmless Owner and Owner’s shareholders, partners, directors, trustees, beneficiaries, members, officers, employees, agents, and representatives and its and their respective successors and assigns (“ Owner’s Representatives”) from, and Owner and Owner’s Representatives shall not be liable for, any and all liability, loss, cost, or expense damage (including, without limitation , damage to Owner’s property, third party claims and reasonable attorneys’ fees and expenses) resulting from or arising from or relating to the management, operation or maintenance of the Golf Course during the Management Period of this Agreement to the extent the same shall have been established by a court of competent jurisdiction to have been caused by the (a) willful or criminal misconduct, gross negligence or fraud of Manager or any of Manager’s Representatives, or (b) any acts by Manager or Manager’ s Representatives which are beyond the scope of authority which Manager reasonably believes it has been granted pursuant to this Agreement in connection with or relating to the performance by Manager of its obligations under this Agreement.
(a) Duty to Defend. Owner will notify Manager of any action, suit, or proceeding potentially giving rise to a claim of indemnification under this paragraph, and Manager may, and upon Owner’s request shall, at Manager’s expense, defend such action, suit or proceeding, or cause the same to be defended by Counsel designated by Owner.
(b) Survival. The obligations of Manager under this paragraph 12.3 shall survive the expiration or earlier termination of this Agreement (regardless of the basis therefor).
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(c) Insurance. Notwithstanding anything to the contrary in this Section 12.3, the Owner and the Owner Representatives shall look first to the appropriate insurance coverages in effect pursuant to this Agreement prior to seeking indemnification under this Section 12.3 in the event any claim or liability occurs as a result of injury to persons or damage to property, regardless of the cause of such claim or liability; provided, however, if the insurance company denies coverage or reserves rights as to coverage, then the Owner and the Owner Representatives shall have the right to seek indemnification, without first looking to such insurance coverage.
12.4. Accident Reporting. Manager shall promptly investigate, and make a full, timely written report to Owner regarding all accidents, claims or damage in excess of Five Thousand Dollars ($5,000) relating to the ownership, operation, management and maintenance of the Golf Course; any damage or destruction to the Golf Course and the estimated cost of repair thereof, and shall prepare any and all reports required by Owner and any insurance companies in connection therewith. All such reports shall be filed timely with Manager’s insurance companies as required under the terms of the applicable insurance policy which provides coverage for such accident, damage or claim. Manager shall not settle, compromise, or otherwise dispose of any claims, demands or liabilities, whether or not covered by insurance proceeds, without the prior written consent of Owner.
ARTICLE XIII.
TERMINATION
13.1. Events of Default by Manager. The following shall constitute Events of Default of Manager:
(a) if there is any failure by Manager to perform any of the terms, conditions or covenants of this Agreement to be observed or performed by Manager within thirty (30) days after written notice from Owner (or such additional time as is reasonably required to correct any such default provided that Manager commences the cure during such thirty (30) day period and thereafter diligently pursues such cure);
(b) if Manager shall become insolvent or file any debtor proceedings, or should any adjudications in bankruptcy be rendered against Manager, or should Manager take or there be taken against Manager in any court pursuant to any statute either of the United States or of any State a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Manager’s property, and, in the case of any involuntary proceeding, the same is not discharged within sixty (60) d ays thereafter, or if Manager makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement of its debts;
(c) if Manager shall permit or suffer this Agreement to be taken under any writ of attachment or execution, and the same is not discharged within thirty (30) days thereafter; or
(d) if Manager assigns this Agreement in violation of Article XIV.
13.2. Events of Default by Owner. The following shall constitute Events of Default of Owner:
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(a) If Owner fails to keep, observe or perform any covenant, agreement, term or provision of this Agreement to be kept, observed or performed by Owner, and such default shall continue for a period of thirty (30) days after written notice thereof by Manager to Owner (or such additional time as is reasonably required to correct any such default provided that Owner commences the cure during such thirty (30) day period and thereafter diligently pursues such cure);
(b) If Owner fails to fund a monetary deficiency pursuant to paragraph 8.2 or pay to the Manager any sum or money when due and payable;
(c) Sale of all or a portion of the Golf Course; or
(d) If Owner shall become insolvent or file any debtor proceedings, or should any adjudications in bankruptcy be rendered against Owner, or should Owner take or there be taken against Owner in any court pursuant to any statute either of the United States or of any State a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of the Golf Course, and, in the case of any involuntary proceeding, the same is not discharged within sixty (60) days thereafter, or if Owner makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement of its debts.
13.3. Termination Upon Default. Upon the occurrence and continuation of an Event of Default, the non-defaulting party may, at its option, and in addition to any and all other rights to which it may be entitled under this Agreement or applicable law, elect to terminate this Agreement.
Any such termination shall be effective as of the date therefor specified in such election; provided, however, that in no event shall such date be later than thirty (30) days following the date such election is made.
13.4. Actions Following Termination. In addition to any other rights and remedies afforded to a non -defaulting party following an Event of Default, should a non -defaulting party elect termination, the parties agree that the following additional provisions shall apply in order to facilitate transition in management of the Golf Course:
(a) Manager shall assign, convey, transfer and set over unto Owner, pursuant to an assignment in form and content satisfactory to Owner, all of Manager’s right, title, and interest in and to all Operating Contracts then in effect and in Manager’s name with respect to the Golf Course, and Manager shall transfer to Owner possession of all Equipment and Supplies.
(b) Manager shall, for a period of two (2) months following such termination, assist and cooperate with Owner to the extent necessary to ensure an orderly and efficient transfer of the operations of the Golf Course by Manager to Owner or Owner’s designee. The covenant of Manager contained herein shall survive and remain in full force and effect following any such termination of this Agreement.
(c) Notwithstanding the foregoing, if at the time of termination Manager has not already been paid in full, Manager shall withdraw from the Operating Account funds necessary to cover all outstanding balances owing from Owner to Manager, plus interest, and all outstanding fees (including unpaid Management Fees) and out of pocket costs, including establishment of a Liability Escrow for any open or threatened claims; provided, however, that in the event of a termination due to a default of Manager, Manager shall not have the right to withdraw further Resolution No. 2022-124
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funds to pay fees thereafter accruing. If amounts in the Operating Account are insufficient to pay all outstanding amounts owed to Manager by Owner, such amounts shall be promptly paid directly by Owner to Manager.
(d) For purposes of clarification, the provisions of this Article XIII regarding termination are not intended to limit any other rights or remedies afforded to a party under applicable law as a consequence of an Event of Default in respect of the other party. For example, should an Event of Default occur in respect of Manager ( e.g., failure by Manager to perform its obligations hereunder, after notice and opportunity to cure), Owner shall have a right, in addition to termination, to obtain an award for any damages suffered as a consequence of such Event of Default. Notwithstanding the foregoing, the maximum damages to which Manager may be held liable on account of Events of Default hereunder shall not exceed 100% of the aggregate Management Fees paid to Manager for the immediately preceding Budget Period; provided, however, the foregoing limitation shall not apply to, limit, or affect (i) Manager’s indemnity obligations under paragraph 12.3 above, or (ii) any claims related to or based upon Manager’s willful, criminal or fraudulent misconduct.
(e) Owner acknowledges that Manager or its Affiliate may have an obligation under federal, state, or local law to give advance notice to Golf Course Personnel of any termination of their employment, and that failure to comply with any such notification obligation could give rise to civil liabilities. Therefore, notwithstanding anything to the contrary contained in this Agreement, (i) the date of termination of this Agreement, other than upon expiration of the Management Period, shall be extended so that the date of termination after notice of termination is given to or by Manager shall be on a date which is not earlier than ten (10) days plus the number of days, if any, Manager is required to give its employees advance notification of termination of employment by Manager as required by the Worker Adjustment and Retraining Act, 29 U.S.C., § 2101 et. seq., as hereafter amended (“ WARN Act”), or any similar federal or state statute; (ii) Owner shall indemnify, hold harmless and defend Manager and its Affiliates from and against any such liabilities based on Owner’s actions (including terminating this Agreement) which give rise to such a notification obligation on the part of Manager or any of its Affiliates, if Owner fails to extend the date of termination as required by, and in accordance with, subparagraph (i) of this paragraph 13.4(e); and (iii) Manager shall continue to employ such Golf Course Personnel as are necessary and for so long as is necessary to not cause a “mass layoff,” “plant closing,” or other violation relating to the termination of Golf Course Personnel under the WARN Act. Owner shall have no responsibility under, nor any liability to Manager and its Affiliates with respect to, the WARN Act, or any similar federal or state statute, provided Owner has complied with its obligations under this paragraph 13.4(e).
ARTICLE XIV.
TRANSFER AND ASSIGNMENTS
14.1. Restrictions on Manager . Manager shall not sell, convey, assign, transfer, hypothecate, pledge, or otherwise dispose of (or agree to do any of the foregoing) all or any part of its interest, if any, in this Agreement, or any contractual rights or obligations related hereto (including any rights to receiv e payments) (“ Transfer”), without the prior written consent of Owner, which consent may be granted or withheld in Owner’s sole judgment. Any assignment by Manager without Owner’s consent shall be of no force or effect. A sale or conveyance of more Resolution No. 2022-124
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than 51% of the interests in the profit and losses of Manager shall be considered a Transfer under this Article.
14.2. Restrictions on Owner . Owner may sell, encumber, subordinate, assign, lease, sublease, or otherwise deal with the Golf Course as the sole and absolute owner thereof, all without any duty to consult with or otherwise obtain the consent of Manager, provided that any such transferee shall take its interest subject to the rights of Manager under this Agreement.
ARTICLE XV.
LEGAL REQUIREMENTS
15.1. Legal Requirements.
(a) Manager Legal Requirements. Throughout the Management Period, Manager shall comply with and observe, without exception, all Legal Requirements applicable to the Golf Course or any of the rights, duties, or obligations of Manager under this A greement, including all Legal Requirements that are applicable as a result of Manager serving in its capacity as the manager of the Golf Course (“ Manager Legal Requirements”). All sums required to be paid to ensure compliance with this paragraph 15.1(a) on account of Manager Legal Requirements shall be paid at no cost or expense to Owner.
(b) Owner Legal Requirements . Throughout the Management Period, Owner shall comply with and observe, without exception, all Legal Requirements applicable to the Golf Course or any of the rights, duties, or obligations of Owner under this Agreement, including all Legal Requirements that are applicable as a result of Owner serving in its capacity as the Owner of the Golf Course (“ Owner Legal Requirements ”). All sums required to be paid to ensure compliance with this paragraph 15.1(b) on account of Owner Legal Requirements (such as licenses and authorizations to do business in the State of California) shall be paid at no cost or expense to Manager.
15.2. Manager’s Right to Contest Legal Requirements. Manager shall recommend to Owner from time to time whether any Legal Requirements should be contested. If requested by Owner, Manager shall contest with reasonable diligence any Legal Requirement designated by Owner. Additionally, and notwithstanding paragraph 5.1(h), Manager shall have the right to contest by appropriate proceedings conducted in good faith and with reasonable diligence the validity or application of any Legal Requirement, whether a Manager Legal Requirement or an Owner Legal Requirement. If compliance with any such Legal Requirement may legally be delayed pending the prosecuting of any such proceeding, Manager may, with the prior written consent of Owner, contest as aforesaid and delay as aforesaid, provided that such contest or delay does not subject Owner to criminal liability, damages or expenses and provided that Manager furnishes Owner security, reasonably satisfactory to Owner, against any loss or injury by reason of such contest or delay. The costs of contesting any Owner Legal Requirement shall be borne by Owner and the costs of contesting any Manager Legal Requirement shall be borne by Manager.
15.3. Environmental Matters. Owner and Manager shall each disclose to the other the presence of any Hazardous Materials known or discovered by Owner or Manager (as the case may be) that may require action in order to comply with (or avoid a violation of) applicable Legal Requirements or that may create or contribute to any claims, damages, losses, or expenses not Resolution No. 2022-124
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typically insured against by the insurance coverages specified in Article XII. If any such Hazardous Materials require removal, abatement, or any other special procedures, such special procedures shall be performed at Owner’s expense in compliance with all Legal Requirements. In any case, Manager shall cooperate with Owner and/or any insurance risk manager to analyze what insurance coverages may be available, and at what cost, against the presence of such Hazardous Materials, in order to protect the interests of both Manager and Owner.
ARTICLE XVI.
CERTAIN TRANSACTIONS
16.1. Manager or Owner, any Affiliate of Manager or Owner, or both, or any shareholder, officer, member, director, employee or any person owning a legal or beneficial interest therein, may own, lease, develop, operate or manage or participate (directly or indirectly) in the ownership, leasing, development, operation or management of any golf course, resort facilities, or other business or venture of any nature and description independently or with others, which may be located in the same market area or vicinity.
(a) Owner’s Understanding . Owner hereby represents that in entering into this Agreement, Owner has not relied on any statement as to the possibility of future success or as to any similar matter whi ch may have been prepared by Manager or by any of its Affiliates and understands that no guarantee is made or implied by Manager or by any of its Affiliates as to the future earnings or financial success of the Golf Course.
(b) Manager’s Understanding. Manager hereby represents that in entering into this Agreement, Manager has not relied on any statement from Owner or any representative or partner of Owner and has conducted such due diligence and investigations as it deems appropriate before entering into this Agreement.
ARTICLE XVII.
MISCELLANEOUS
17.1. Waiver. The waiver by either Owner or Manager of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, term or condition of this Agreement shall be deemed to have been waived by Owner or Manager, unless such waiver is in writing signed by the party against whom such waiver is asserted.
17.2. Entire Agreement . This Agreement sets forth all the covenants, promises, agreements, conditions and understandings between Owner and Manager, oral or written, relating to the subject matter of this Agreement. Neither Owner nor Manager has made any representations or promises not expressly contained herein. No subsequent alterations, amendment, change or addition to this Agreement shall be binding upon Owner and Manager unless reduced to a writing and signed by them.
17.3. Unavoidable Delay . In the event that either party hereto shall be delayed, or hindered in, or temporarily prevented from, the performance of any act required hereunder by reason of an Unavoidable Delay, then performance of such act shall be excused for the period of Resolution No. 2022-124
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said delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. In the event that either party shall be indefinitely prevented from the performance of any act required hereunder by reason of an Unavoidable Delay then performance of such act shall be excused. Notwithstanding the foregoing, no Unavoidable Delay shall excuse the timely payment of money when due hereunder except as otherwise expressly provided in this Agreement.
17.4. Notices. Notices to be given under the terms of this Agreement shall be delivered in a timely fashion (and in any event within any time limits established elsewhere in this Agreement) and shall be in writing and sent by certified or registered mail, postage prepaid, return receipt requested, and addressed as follows:
If to Owner: City of Escondido
201 North Broadway
Escondido, CA 92025
Attn: Joanna Axelrod, Deputy City Manager
[email protected]
If to Manager: Escondido Golf LLC
c/o CourseCo, Inc.
5341 Old Redwood Hwy, STE 202
Petaluma, CA 94954
Attn: Michael Sharp, President/CEO
[email protected]
or at such other address as from time to time designated by the party receiving the notice in accordance with this paragraph 17.4. The date of service of such notice shall be the date such notices are delivered to the party to whom the notice is given.
Statements and other communications to be given under the terms of this Agreement shall be delivered in a timely fashion (and in any event within any time limits established elsewhere in this Agreement) via mail or email to the contact listed above.
17.5. Captions and Paragraph Numbers . The captions, paragraph numbers, article numbers and index appearing in this Agreement are inserted only as a matter of convenience, and in no way define, limit, construe or describe the scope or intent of such section or article, nor in any way affect this Agreement.
17.6. Construction of Language. The language in all parts of this Agreement sh all be construed simply, according to its fair meaning, and not strictly for or against either Owner or Manager.
17.7. Interest. Interest shall accrue on any sums owed by either party hereto to the other party starting from the first date of delinquency and continuing until the full amount, including such interest, is paid. Such interest shall accrue at a rate equal to the lesser of (a) the maximum rate of interest allowed by applicable law, or (b) the rate of interest announced by Wells Fargo (or Resolution No. 2022-124
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successor thereto) as of such date of delinquency, as its “ prime” or “ reference” rate, plus two percent (2%).
17.8. Successors. Except as herein otherwise provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respe ctively, of Owner and Manager. Nothing stated in the foregoing sentence shall limit the provisions of Article XIV of this Agreement.
17.9. Persons Indemnified. All agreements by either Manager or Owner to indemnify or hold the other harmless contained in this Agreement shall inure to the benefit not only of the respective indemnitee but also to that of its and their subsidiaries and Affiliates, and shall also inure to the benefit of the directors, officers, employees and agents of any of the foregoing.
17.10. Applicable Law and Jurisdiction . This Agreement and all provisions thereof, irrespective of the place of execution or performance, shall be construed and enforced in accordance with the laws of the State of California. The sole and exclusive venue for any legal action under this Agreement or in any way related to the Golf Course shall be the Superior Court of California in and for the County of San Diego, and Owner and Manager agree to submit to the jurisdiction of such court.
17.11. Cumulative Rights . The rights and remedies conferred upon both Owner and Manager in this Agreement and by law are cumulative.
17.12. Savings Clause. If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder or substantially increase the burden on any party hereto, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
17.13. Attorneys’ Fees and Expenses. In the event of any dispute or litigation concerning the enforcement, validity or interpretation of this Agreement, or any part hereof, the losing party shall pay all costs, charges, fees and expenses (including reasonable attorneys’ fees and costs) paid or incurred by the prevailing party, regardless of whether any action or proceeding is initiated relative to such dispute and regardless of whether any such litigation is prosecuted to judgment.
For the purpose of this Agree ment, the terms “ attorneys’ fees” or “ attorneys’ fees and costs ” shall mean the fees and expenses of counsel to the parties hereto, which may include printing, photostatting, duplicating and other expenses, air freight charges, and fees billed for law cler ks, paralegals, librarians and others not admitted to the bar but performing services under the supervision of an attorney. The terms “attorneys’ fees” or “attorneys’ fees and costs” shall also include, without limitation, all such fees and expenses incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred, and shall include all such fees and expenses incurred or anticipated to be incurred in collecting or enforcing any judgment in connection therewith.
17.14. Injunctive Relief. In the event of a breach or threatened breach by either party of any of the covenants or provisions of this Agreement, the other par ty shall, in addition to any Resolution No. 2022-124
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remedies expressly mentioned in this Agreement, have the right of injunction and the right to invoke any remedy at law or in equity.
17.15. Further Assurances. Manager and Owner each agree to execute and deliver from time to time, promptly following any reasonable request therefor by the other party, any and all instruments, agreements and documents and promptly shall take such other actions as may be necessary or appropriate in the reasonable determination of the other party, to ca rry out the transaction described in this Agreement.
17.16. Trade Names, Royalties and Patents . All trade names, trademarks, logos, emblems and similar identifying matters related to or used in connection with the Golf Course shall be the sole and exclusive prop erty of Owner, and all matters relating to their use shall be subject to Owner’s approval in its sole judgment. If any design, device, material or process covered by letters patent, copyright or trademark is used by Manager in connection with the Golf Course, it shall provide for such use by legal agreement with the owner of the patent, copyright or trademark or a duly authorized licensee of such owner.
17.17. No Third-Party Beneficiaries. This Agreement is not intended and shall not be deemed or construed to convey any rights, powers or privileges on any person, firm, partnership, corporation, or other entity not a party hereto.
17.18. Incorporation of Exhibits. The Exhibits attached hereto shall be construed with and as integral parts of this Agreement to be the same extent as if the same had been set forth verbatim herein.
17.19. Approvals. In any provision of the Agreement where Owner’s or Manager’s approval or consent is required, Owner or Manager, as applicable, shall, except to the extent specifically stated to the contrary in such provision, have the right to withhold or refuse its approval or consent in Owner’s or Manager’s, as applicable, sole and absolute discretion.
17.20. Counterparts. This Agreement may be executed in any number of counterparts, and each of such co unterparts for all purposes shall be deemed to be an original, and all of such counterparts should constitute one and the same agreement.
17.21. Nondiscrimination in Employment . Manager will use reasonable and diligent efforts not to discriminate against any emp loyee or applicant for employment because of race, creed, color, age, sex or national origin. Manager will use reasonable and diligent efforts to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex or national origin. Manager shall not discriminate with respect to the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensati on, and selection for training, including apprenticeship.
17.22. Time. Time is of the essence of this Agreement and each provision hereof of which time is an element.
17.23. Independent Contractor . Owner and Manager acknowledge and agree that Manager will act as an independent contractor in the performance of its duties and responsibilities Resolution No. 2022-124
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set forth in this Agreement. No provisions hereunder shall be intended to create a partnership or joint venture between Owner and Manager with respect to the Golf Course or otherw ise, and neither party shall have the power to bind or obligate the other party, except as expressly set forth in this Agreement.
17.24. Confidentiality. Manager shall hold confidential any information which Manager receives in connection with the performance of its obligations hereunder and which concerns Owner or its operations or business and shall not disclose all or any portion of such information to any third party, except for such disclosures as are necessary to perform Manager’s obligations hereunder or are required by law or by any proposed lender or mortgagee of the Golf Course.
17.25. Limitation on Fiduciary Duties. To the extent any fiduciary duties that may exist as a result of the relationship of the parties are inconsistent with, or would have the effect of expanding, modifying, limiting or restricting any of the express terms of this agreement, (a) the express terms of this agreement shall control; (b) this agreement shall be interpreted in accordance with general principles of contract interpretation wi thout regard to the common law principles of agency; and (c) any liability of the parties shall be based solely on principles of contract law and the express terms of this agreement. the parties further acknowledge and agree that for the purposes of determining the nature and scope of manager’s fiduciary duties under this agreement, the terms of this agreement, and the duties and obligations set forth herein, are intended to satisfy all fiduciary duties that may exist as a result of the relationship between the parties, including all duties of loyalty, good faith, fair dealing and full disclosure, and any other duty deemed to exist under the common law principles of agency or otherwise (other than the duty of good faith and fair dealing implied under general contract principles, independent of the common law principles of agency). in addition, notwithstanding anything to the contrary in this agreement, to the fullest extent permitted under applicable law, the parties hereby unconditionally and irrevocably waive and disclaim any power or right such party may have to claim any punitive, exemplary, statutory or treble damages or consequential or incidental damages for any breach of fiduciary duties.
17.26. Trial by Jury. Each party waives, to the fullest extent permitted by law, trial by jury of all claims arising out of or relating to this agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, Owner and Manager have executed this Agreement as of the date first above written.
“Owner”
CITY OF ESCONDIDO
a California municipal corporation
By: Date: ______________
Paul McNamara, Mayor
“Manager”
ESCONDIDO GOLF, LLC
a California Limited Liability Company
By: CourseCo, Inc.
A California Corporation
By: _____________________ Date: ______________
Michael Sharp, President/CEO
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, City Attorney
BY:
Resolution No. 2022-124
Exhibit "A"
209
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Exhibit “A”
GOLF COURSE
ALL THAT REAL PROPERTY IN THE CITY OF ESCONDIDO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
ALL OF ASSESSOR’S PARCEL NUMBER 187-310-11 LYING NORTHERLY OF JESMOND DENE ROAD, AND LOT “R” ON ESCONDIDO TRACT NO. 819, MAP THEREOF NO. 14185, FILED FOR RECORD WITH THE SAN DIEGO COUNTY RECORDER ON APRIL 5, 2001 AS DOCUMENT NO. 2001-0207056.
Resolution No. 2022-124
Exhibit "A"
211
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Exhibit “B”
Reidy Creek Golf Course Equipment
Asset
ID
Description Asset Type Serial ID Profil
e ID
Fleet Notes
10704 Well for
Irrigation
Facility PLIMP
10691 Turfcoat Rotary
Mower & Blower
Equipment PM&E Out of Service, on site for
parts
10698 Truck with Vicon
Spreader
Equipment PM&E Both on site, in service - Bad
condition
10697 Truck with
Topdresser
Equipment PM&E Topdresser on site, truck
missing
10690 Triplex Triking Equipment PM&E Missing
10689 Triplex Triking Equipment PM&E Missing
10695 Spraytek
Sprayer & Lift
Option
Equipment PM&E Missing
10692 Sand
Scorpion
Bunker Rake
Equipment PM&E On site, operable (but has
many issues)
11677 Reidy Crk Cart
Wash Bldg
Facility PBLDG
10731 Reidy Creek Golf
Course Land
Property PLAND
10702 Reidy Creek Golf
Course
Property GOLF
10733 Reidy Creek Golf
- Parking Lot
Facility PLIMP
10732 Reidy Creek Golf
- Clubhouse
Facility PBLDG
13352 Reidy
Creek
Clubhouse
Renovati
Other GBLDG
12791 Reconditioned
Greens Roller
Equipment GM&E On site, operable - Fair
condition, needs attention
10703 Maint. Bldg &
Storage Bldg
Facility PBLDG
10694 Kubota 4-
Wheel Drive
Tractor
Equipment PM&E On site, ROPS removed - Bad
condition, unsafe
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12074 John Deere
ProGator
Vehc 2020
Equipment TC2020B035241 GM&E On site, operable - Fair
condition, needs attention
12076 John Deere
Mower
2500A
Triplex
Equipment TC250AD040328 GM&E Missing
11442 Jacobsen
GreenKing
IV
Equipment 6228804832 GM&E Missing
12525 Jacobsen
Eclipse 322
Lawnmower
Equipment 6280103582 GM&E On site, operable - Good
condition
10676 Ideal 65
Automatic
Bedknife
Gr
Equipment RM&E Missing
10666 IBS Software &
Hardware
Equipment RM&E
10646 IBS POS System
Computer
Equipment RM&E
10677 Golf
Shop
Cabinetr
y
Equipment RM&E
10693 Gnossen Mid-
Size Vacum
Equipment PM&E Missing
10673 Fuel Tanks Equipment RM&E Operable, up to date on inspections per JC Golf
10686 Diesel
Greens
Mower
Equipment PM&E Missing
12075 AD Williams
Green Sprayer
Equipment AD-200-SI-G-200 GM&E On site, operable - Fair condition, needs attention
12208 2013 John Deere
2030A ProGator
Equipment 1TC203ATEDT070617 GM&E On site, operable - ok condition
11834 2004 Toro 4500-
D Fairway
Mower
Equipment 30856-240001306 GM&E Missing
Additional Equipment on Site - City Owned per JC Golf
John Deere
2500 A Mower
On site, inoperable - used for
parts
John Deere 2500
A Mower
On site, inoperable - used for
parts
Resolution No. 2022-124
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John Deere
2500 E Mower
On site, inoperable - used for
parts
Club Car Cart On site, inoperable - used for
parts
EZGO Cart On site, inoperable - used for
parts
EZGO Cart On site, inoperable - used for
parts
TORO 3500D
mower
On site, inoperable - used for
parts
Jacobsen Greens
Mower GPlex2
On site, inoperable - used for
parts
Jacobsen
Greens Mower
GPlex2
On site, inoperable - used for
parts
Jacobsen Greens
Mower EPlex2
On site, inoperable - used for
parts
Qty 10 - (Tan)
Yamaha
Golf Carts
On site, operable, good
condition - approx 3 years
old
Qty 26 -
(Charcoal)
On site, operable, good
condition - approx 1 year old
Yamaha
Golf Carts
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1 LEASE AND CONCESSION AGREEMENT
THIS LEASE AND CONCESSION AGREEMENT is entered into as of , 2022 (the " Lease") by and between THE CITY OF ESCONDIDO , a California municipal corporation, (hereinafter referred to as "Landlord") and ESCONDIDO GOLF, LLC, a California Limited Liability Company (hereinafter referred to as the " Tenant"). Landlord and Tenant are sometimes hereinafter collectively referred to herein as the "parties." RECITALS:
The parties make the following recitals as to the facts surrounding the making and entering into of this Lease:
A. Landlord is the owner of approximately 65 acres comprising the Reidy Creek Golf Course and Clubhouse (hereinafter referred to as " Golf Course") located in San Diego County, City of Escondido, as more particularly described in Exhibit "A" attached hereto and incorporated herewith.
B. Concurrent with the execution of this Lease, Landlord and Tenant, entered into a Golf Course Management Agreement (the " Management Agreement ") wherein Landlord retained Tenant to manage and operate the Golf Course.
C. Tenant has such knowledge, experience and resources to professionally provide the food and beverage services required under this Lease.
D. Landlord desires that Tenant provide certain food and beverage services for the Golf Course and Tenant desires to lease from Landlord, the snack bar facility located at the Golf Course (hereinafter referred to as the “ Premises”), as more particularly described in Exhibit “B” attached hereto and incorporated herewith.
NOW, THEREFORE, in consideration of their mutual promises, the parties hereby agree as follows:
AGREEMENT:
1. Defined Terms . When used in this Lease, including any exhibits or schedules attached hereto, the following terms shall have the meaning ascribed to them in this paragraph 1, unless the context indicates a contrary intent:
"Event of Default" shall mean the occurrence of any of the events described in paragraphs 19(a) and 19(b) of the Lease and paragraphs 13.1 and 13.2 of the Management Agreement, together with the expiration of any cure period applicable to such event as referenced in the Lease and Management Agreement. An Event of Default under the Management Agreement shall also trigger an Event of Default under the Lease.
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2 “Food & Beverage Equipment” shall mean all equipment and supplies, including furnishings, fixtures, equipment, machinery, appliances and other articles of personal property on the Premises.
“Food & Beverage Personnel” shall mean all individuals performing services for the Premises, whether employees of Tenant or its Affiliates.
"Gross Food and Beverage Revenues" shall mean gross receipts of every kind and nature generated by food and beverage sales, including snack bar and beverage cart(s) revenue, all food and beverage revenue generated by catered events at the Premises and Golf Course and all revenues from catering service providers.
“Person” shall mean an individual, partnership, corporation, limited liability company, association, government or any department or agency thereof, trustee, trust or any other entity or organization.
"Unavoidable Delay" shall mean any delay due to such causes as strikes; lockouts; acts of God; inability to obtain labor, materials, equipment or supplies; governmental restrictions; moratoria; initiatives; referenda; a war or enemy action or invasion; civil commotion; insurrection; a riot; mob violence; malicious m ischief or sabotage; an unusual failure of transportation; fire or any other casualty; unusually adverse weather conditions; a condemnation; any restraining order or any law, order or regulation of any governmental, quasi-governmental, judicial or military authority; or other similar causes beyond the control of Tenant, any of which has the effect of delaying, hindering or preventing Tenant's performance of its obligations hereunder, provided (i) Tenant shall have notified Landlord of such event by notice given not later than fifteen (15) days after Tenant has knowledge of the occurrence of such event, and (ii) Tenant shall use reasonable efforts to minimize the effects thereof.
2. Demise of Premises. In consideration of the rent and the covenants and conditions set forth herein, Landlord leases to Tenant and Tenant leases from Landlord the Premises located on the Golf Course and set forth on Exhibit “B” attached hereto and incorporated herewith.
3. Grant of Concession Agreement. Landlord grants to Tenant an exclusive concession to sell food and beverages on the Golf Course. Such concession includes the exclusive right to use the Premises and to utilize one or more carts to sell food and beverage to golfers while on the Golf Course.
4. Term. The Term of the Lease shall run concurrent with the Term referenced in the Management Agreement.
5. Percentage Rent. Tenant shall pay to Landlord rent for the Premises equal to ten percent (10%) of Gross Food and Beverage Revenues (the “Percentage Rent”) payable one month in arrears, and due and payable on or before the twentieth (20) day of each calendar month during the Term of this Lease.
Resolution No. 2022-124
Exhibit "B"
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3 6. Method of Payment and Calculation. On or before the twentieth (20) day of each calendar month during the Term and the twentieth (20) day of the calendar month immediately following any month in which the Lease is terminated, Tenant shall prepare and submit to Landlord a written revenue statement setting forth the Gross Food and Beverage Revenues (the " Revenue Statement") for the precedi ng month. Concurrently with the delivery of the Revenue Statement to Landlord, Tenant shall pay in full to Landlord the applicable Percentage Rent based upon the Gross Food and Beverage Revenues for the month as shown in the Revenue Statement.
7. Food and Beverage Equipment. Tenant shall maintain, repair and/or replace all Food and Beverage Equipment, as needed. Upon termination of the Lease, Landlord shall purchase any Food and Beverage Equipment from Tenant that Tenant paid for and was not previously reimbursed for. Landlord’s purchase from Tenant shall be based upon fair market value of the Equipment.
8. Food and Beverage Inventory. Upon termination of the Lease, Landlord shall purchase the food and beverage inventory from Tenant at Tenant's cost.
9. Building Improvements . Landlord shall make all necessary building improvements to the Premises in order to obtain and maintain a Health Department Permit to operate the Premises as a food and beverage operation. All costs associated therewith shall be borne by Landlord.
10. Liquor License. Tenant shall be responsible for obtaining and maintaining a liquor license for the Premises and Golf Course.
11. Taxes and Assessments.
(a) Payment of Taxes and Assessments. Tenant shall pay all real and personal property taxes, general and special assessments, and other charges of every description levied on or assessed against the Premises, improvements located on the Premises, personal property located on or in the Premises and the leasehold estate or any subleasehold estate, to the full extent of the installments falling due during the term of this Lease. Tenant shall make all such payments directly to the charging governmental authority at least fifteen (15) days prior to the fine, interest and/or penalty becoming due or imposed by operation of law for their non-payment.
(b) Property Taxes. Tenant recognizes and understands that this Lease may create a possessory interest, subject to property taxation, and that Tenant may be subject to the payment of such property taxes levied upon such interest.
12. Use. The Premises shall be operated by Tenant as a snack bar and related ancillary use. Tenant shall not commit or suffer to be committed any waste upon the Premises nor shall Tenant use the Premises or permit any use thereof which in any manner will cause or constitute a nuisance or unreasonable annoyance to owners or occupants of adjacent property.
Resolution No. 2022-124
Exhibit "B"
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4 13. Maintenance. Tenant, at its full cost and expense, shall maintain the Premises and any improvements on the Premises in accordance with standard industry practices consistent with a clubhouse and snack bar facility of similarly situated mid -market daily fee public golf courses.
Tenant shall operate the Premises in a manner which maintains the good name and business reputation of Landlord.
14. Books and Reports
(a) Book of Account. Throughout the Term, Tenant shall maintain in accordance with generally accepted accounting principles, consistently applied, full and separate books and records for the Premises with entries supported by documentation sufficient to allow Landlord to ascertain the accuracy of such books and records. Tenant shall maintain and safeguard such books and records at Tenant's office. Tenant shall provide copies of such books and records to Landlord at other locations upon receipt by Tenant of a request therefor from Landlord. Tenant shall ensure such control over accounting and financial transactions as is necessary to protect Landlord's assets from theft, error or fraudulent activity by Tenant's employees.
(b) Reports.
(1) Tenant shall prepare and submit to Landlord, on or before the twentieth (20th) of each calendar month during the Term and the twentieth (20th) day of the calendar month immediately following any month in which this Lease is terminated, a Revenue Statement as set forth in paragraph 6 above, for the preceding month. Concurrently with the delivery of the Revenue Statement to Landlord, Tenant shall pay in full to Landlord the applicable Percentage Rent based upon the Gross Food and Beverage Revenues for the month as shown in the Revenue Statement. In addition, upon written request by Landlord, Tenant shall provide a Monthly Operating Report, which Monthly Operating Report shall be in such form and contain such information as Landlord may reasonably require and shall include a statement of income for the Premises for the preceding month.
(2) Tenant shall prepare and submit to Landlord no later than ninety (90) days after the end of each Fiscal Year (or any portion of any such Fiscal Year in the case of a partial Fiscal Year at the beginning or end of the Term) an “Annual Operating Report” for the immediately preceding Fiscal Year, which Annual Operating Report shall be in such form and contain such information as Landlord may require, including, without limitation, the information described in paragraph 14(b)(1) above (collectively, the "Year End Financials").
(c) Sales Records. Tenant shall keep full and accurate books of account, records, cash receipts and other pertinent data showings its Gross Food and Beverage Revenues (the "Financial Sales Records"). Tenant shall install and maintain accurate receipt-printing cash registers and shall record on the cash registers all transactions which are included in calculating the Gross Food and Beverage Revenues. Tenant shall furnish to Landlord, upon request, copies of its annual California sales and use tax return at the time the same is filed with the State of California.
All Financial Sales Records shall be preserved for a period of at least three (3) years after the end of a Lease Year.
Resolution No. 2022-124
Exhibit "B"
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5 (d) Supporting Documentation. As additional supporting documentation for the monthly financial statements and Year End Financials required under paragraph (b) above, unless otherwise directed by Landlord, Tenant shall make available the following:
(1) all bank statements and bank deposit slips;
(2) detailed cash receipts;
(3) detailed balances for receivables and payables and billed and unbilled revenue items;
(4) daily or weekly reports maintained by Tenant in connection with its ongoing operation and management of the Premises;
(5) information necessary for preparation of Landlord's State, Federal, or Revenue Bond continuing disclosure reporting requirements, including a description of and a statement of accounts expended in connection with repairs, capital improvements, taxes and professional fees; and
(6) annual value of inventory.
15. Landlord's Right to Audit. All books, records and supporting documentation maintained by Tenant pursuant to this paragraph 15 shall be the sole and exclusive property of Landlord, and shall be made available to Landlord at Landlord's request at reasonable times during normal business hours, and, in addition, in connection with independent financial audits of Landlord, as well as audits by any governmental authority, including, but not limited to, the Internal Revenue Service, the Franchise Tax Board and the San Diego County Assessor's Office. Landlord, or persons appointed by Landlord, may, during ordinary business hours, examine all books, records and files maintained for Landlord by Tenant. Landlord may perform any audit or investigation relating to Tenant's activities at any office of Tenant if such audit or investigation relates to Tenant's activities for Landlord. Should Landlord or Landlord's emplo yees or representatives discover any errors in record keeping, Tenant shall correct such discrepancies promptly upon discovery and make necessary adjustments. Tenant shall inform Landlord in writing of the action taken to correct any audit discrepancies.
16. Insurance, Indemnity and Casualty.
(a) Insurance Types: Effective as of the Management Commencement Date, Tenant shall obtain all insurance required to be obtained by Tenant under this Agreement as follows:
(i) Commercial General Liability . Insurance Services Office (“ISO”) Form CG 00 01 covering Commercial General Liability on an “occurrence” basis, including Resolution No. 2022-124
Exhibit "B"
219
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6 products and completed operations, property damage, bodily injury, and personal & advertising injury, with limits no less than $10,000,000 per occurrence.
(ii) Workers’ Compensation. Workers' Compensation as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than
$1,000,000 per accident for bodily injury or disease.
(iii) Automobile Liability. ISO Form CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired (Code 8) and non-owned autos (Code 9), with limits no less than $1,000,000 per accident for bodily injury and property damage, unless waived by the LANDLORD and approved in writing by the LANDLORD’s Risk and Safety Division.
(iv) Property Insurance. Property insurance against all risks of loss to any Tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision. The property insurance is to be endorsed to include Legal Liability Coverage (ISO Form CP 00 40 04 02 or equivalent) with a limit equal to the replacement cost of the leased property, Property insurance shall include not less than $1,000,000 Fire Legal lia bility on the Premises, including improvements and betterments owned by the Landlord, and shall name the Landlord as a loss payee.
Tenant shall also provide fire insurance on all personal property contained within or on the Premises. The policy must be written on an “all risks” basis, excluding earthquake and flood. The contract shall insure for not less than 90% of the actual cash value of the personal property, and Tenant shall name the Landlord as an additional insured.
(v) Interruption of Business Insurance. Business interruption insurance of a type and in amounts sufficient to cover loss of profits and rent, management fees, any mortgage payments, real estate taxes, hazard insurance premiums, and adequate cleaning, lighting and maintenance of the Golf Course for a period of at least 12 months, and with a waiting period of no more than seven days.by which the minimum monthly rent will be paid to the Landlord for a period of up to one year if the Premises is destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements.
(vi) Crime Insurance. Crime Insurance, which includes Employee Theft and Theft, Disappearance and Destruction coverage parts, in an amount not less than $500,000 per occurrence with a deductible no greater than $100,000 that will pay on behalf of the Tenant to the Landlord for losses caused by the dishonest acts of the Tenant or Tenant’s employees, agents, or designees.
(vii) Employment Practices Liability . Employment Practices Liability insurance in an amount not less than $2,000,000.
Resolution No. 2022-124
Exhibit "B"
220
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7 (b) If Tenant maintains broader coverage and/or higher limits than the minimums otherwise required by this Lease, the LANDLORD requires and shall be entitled to the broader coverage and/or the higher limits maintained by Tenant.
(c) Each insurance policy required by this Lease must be acceptable to the Landlord Attorney and shall meet the following requirements:
(i) Acceptability of Insurers. Insurance coverage must be provided by an insurer authorized to conduct business in the state of California with a current A.M. Best’s rating of no less than A-: FSC VII , or as approved by the Landlord.
(ii) Additional Insured Status. Tenant’s Commercial General Liability, Automobile Liability, Crime, and Business Interruption policies must name the Landlord (including its officials, officers, agents, employees, and volunteers) specifically as an additional insured under the policy on a separate endorsement page. The Commercial General Liability additional insured endorsement shall be at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, and CG 20 37 if a later edition is used.
(iii) Primary Coverage. Tenant’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the Landlord, its officials, officers, agents, employees, and volunteers. Any insurance or self-insurance maintained by the Landlord, its officials, officers, agents, employees, or volunteers shall be in excess of Tenant’s insurance and shall not contribute with it.
(iv) Notice of Cancellation. Each insurance policy shall provide that coverage shall not be canceled, except with prior written notice to the Landlord.
(v) Waiver of Subrogation. Tenant hereby grants to the Landlord a waiver of any right to subrogation that any insurer of Tenant may acquire against the Landlord by virtue of the payment of any loss under such insurance. Tenant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this subsection shall apply regardless of whether or not the Landlord has received a waiver of subrogation endorsement from the insurer.
Any Workers’ Compensation policy required by this Lease shall be endorsed with a waiver of subrogation in favor of the Landlord for all work performed by Tenant, its agents, representatives, employees and volunteers.
(vi) Self-Insurance. Tenant may, with the Landlord’s prior written consent, fulfill some or all of the insurance requirements contained in this Lease under a plan of self-insurance. Tenant shall only be permitted to utilize such self-insurance if, in the opinion of the Landlord, Tenant’s (i) net worth and (ii) reserves for payment of claims of liability against Tenant are sufficient to adequately compensate for the lack of other insurance coverage required by this Lease. Tenant’s utilization of self- insurance shall not in any way limit the liabilities assumed by Tenant pursuant to this Lease.
Resolution No. 2022-124
Exhibit "B"
221
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8 (vii) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the Landlord.
(viii) Verification of Coverage. At the time Tenant executes this Lease, Tenant shall provide the Landlord with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting the insurance coverage required by this Lease), which shall meet all requirements under this Lease. The Landlord reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this Lease, at any time.
(ix) Special Risks or Circumstances. The Landlord reserves the right, at any point during the term of this Lease, to mod ify the insurance requirements in this Lease, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
(x) No Limitation of Obligations . The insurance requirements within this Lease, including the types and limits of insurance coverage Tenant must maintain, and any approval of such insurance by the Landlord, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Tenant pursuant to this Lease, including but not limited to any provisions within this Lease concerning indemnification.
Failure to comply with any of the insurance requirements in this Lease, including but not limited to a lapse in any required insurance coverage during the ter m of this Lease, shall be a material breach of this Lease. In the event that Tenant fails to comply with any such insurance requirements in this Lease, in addition to any other remedies the Landlord may have, the Landlord may, at its sole option, (i) immediately terminate this Lease; or (ii) order Tenant to immediately vacate the Premises until Tenant demonstrates compliance with the insurance requirements in this Lease.
(xi) Insurance Premiums . Unless otherwise noted, all insurance described under this Article XII to be carried by Tenant will be maintained by Tenant at Owner’s expense in accordance with the Approved Annual Business Plan, as applicable, with insurance carriers who are legally operating in the State of California and acceptable to Owner, which acceptance shall not be unreasonably withheld. In no event will such insurance be terminated or otherwise allowed to lapse prior to termination of this Agreement or such longer period as may be specified herein. Tenant may provide the insurance descr ibed in this Article XII in whole or in part through a policy or policies covering other liabilities and projects of Tenant. Owner shall not be entitled to a pro-rata refund for partial year coverage on pre-paid insurance premiums.
(xii) Damages. Nothing contained in these insurance requirements is to be construed as limiting the type, quality or quantity of insurance Tenant should maintain or the extent of Tenant’s responsibility for payment of damages resulting from its operations under this Agreement.
Resolution No. 2022-124
Exhibit "B"
222
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9 (j) Indemnification by Landlord. Landlord shall indemnify, defend, protect and hold Tenant and Tenant’s Affiliates, shareholders, members, officers, directors, employees, agents, and legal representatives harmless from all liability, loss, damage, cost, or expense (including, without limitation, reasonable attorneys’ fees and expenses, whether incurred at the trial, pretrial, or appellate level) arising from or relating to the ownership, development, construction, management, operation or maintenance of the Premises from and after the Term of this Lease (collectively “Liabilities”), except those liabilities arising from Tenant’s or Tenant’s employees’ willful or criminal misconduct, gross negligence or fraud. Tenant will notify Landlord of such action, suit, or proceeding, and Landlord may, and upon Tenant’s request shall, at Landlord’s expense, defend such action, suit, or proceeding, or cause the same to be defended by counsel designated by Tenant.
(k) Indemnification by Tenant. Tenant shall indemnify, defend, protect and hold Landlord and Landlord’s partners, employees, agents and legal representatives harmless from all liability, loss, damage, cost, or expense (including, without limitation, reasonable attorneys’ fees, whether incurred at the trial, pretrial, or appellate level) arising from or related to Tenant’s or Tenant’s employees’ willful or criminal misconduct, gross negligence or fraud. Landlord will notify Tenant of such action, suit, or proceeding, and Tenant may, and upon Landlord’s request shall, at Tenant’s expense, defend such action, suit or proceeding, or cause the same to be defended by counsel designated by Landlord.
(l) Accident Reporting. Tenant shall promptly investigate, and make a full, timely written report to Landlord regarding all accident s, claims or damage in excess of $5,000 relating to the ownership, operation, management and maintenance of the Premises; any damage or destruction to the Premises and the estimated cost of repair thereof, and shall prepare any and all reports required by Landlord and any insurance companies in connection therewith. All such reports shall be filed timely with Tenant's insurance companies as required under the terms of the applicable insurance policy which provides coverage for such accident, damage or claim. Tenant shall not settle, compromise, or otherwise dispose of any claims, demands or liabilities, whether or not covered by insurance proceeds, without the prior written consent of Landlord.
17. Restoration. In case of any damage to or destruction of the Premises or improvements, or any part thereof, which is covered by the insurance required in paragraph 16, Tenant, at its expense, shall promptly commence and complete the restoration, replacement or rebuilding of the Premises and improvements as nearly as possible to its value, condition and character immediately prior to such damage or destruction. In the event of any damage to or destruction of the Premises or the improvements caused by an event which is not covered by the required insurance, Tenant shall either make such restoration or terminate this Lease; provided, however, that (i) Tenant obtains the consent of a mortgagee, (ii) Tenant is not then in default hereunder, and (iii) Tenant removes the damaged or destroyed property and leaves the Premises in a safe condition.
18. Transfer and Assignment.
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Exhibit "B"
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10 (a) Restrictions on Tenant . Tenant shall not sell, convey, assign, transfer, hypothecate, pledge, or otherwise dispose of (or agree to do any of the foregoing) all or any part of its interest, if any, in this Lease, or any contractual rights or obligations related hereto (including any rights to receive payments) ( "Transfer"), without the prior written consent of Landlord, which consent may be granted or withheld in Landlord's sole judgment. Any assignment by Tenant without Landlord's consent shall be considered an Event of Default and the assignment shall be of no force or effect. A sale or conveyance of 51% of the interest in the profit or losses of Tenant shall be considered a Transfer under this paragraph.
(b) Restrictions on Landlord . Landlord may sell, encumber, subordinate, assign, lease, sublease, or otherwise deal with the Premises as the sole and absolute owner thereof, all without any duty to consult with or otherwise obtain the consent of Tenant, provided that any such transferee shall take its interest subject to the rights of Tenant under this Lease.
19. Default.
(a) Default by Tenant. If there is any failure by Tenant to perform any of the terms, conditions or covenants of this Lease to be observed or performed by Tenant within thirty (30) days after written notice from Landlord (or such additional time as is reasonably required to correct any such default), or if Tenant shall become insolvent or file any debtor proceedings, or should any adjudications in bankruptcy be rendered against Tenant, or should Tenant take or there be taken against Tenant in any court pursuant to any statute either of the United States or of any State a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's property, and if any of the foregoing proceedings are not discharged within sixty (60) days thereafter, or if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement of its debts, or if Tenant shall permit or suffer this Lease to be taken under any writ of attachment or execution, and the same is not discharged within thirty (30) days thereafter, or, if Tenant assigns this Lease in violation of paragraph 18, then an Event of Default with respect to Tenant shall be deemed to have occurred under this Lease.
(b) Default by Landlord. If Landlord fails to keep, observe or perform any covenant, agreement, term or provision of this Lease to be kept, observed or performed by Landlord, and such default shall continue for a period of thirty (30) days after written notice thereof by Tenant to Landlord (or such additional time as is reasonably required to correct any such default), then an Event of Default with respect to Landlord shall be deemed to have occurred under this Lease.
(c) Termination Upon Default. Upon the occurrence of an Event of Default, the nondefaulting party may, at its option, and in addition to any and all other rights to which it may be entitled under this Lease or applicable law, elect to terminate this Lease. Any such termination shall be effective as of the date therefor specified in such election; provided, however, that in no event shall such date be later than thirty (30) days following the date such election is made.
(d) Actions Following Termination.
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Exhibit "B"
224
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11 (1) Immediately following any termination of this Lease for any reason whatsoever, Tenant shall assign, convey, transfer and set over unto Landlord, pursuant to an assignment in form and content satisfactory to Landlord, all of Tenant's right, title, and interest in and to all operating contracts then in effect and in Tenant's name with respect to the Premises which are designated by Landlord to Tenant. In addition, upon receipt of payment by Landlord, Tenant shall transfer to Landlord possession all Food and Beverage Equipment and food and beverage inventory as set forth in paragraphs 7 and 8 of this Lease.
(2) Upon any termination of this Lease for any reason whatsoever, Tenant shall, for a period of two (2) months following such termination, assist and cooperate with Landlord to the extent necessary to ensure an orderly and efficient transfer of the operations of the Premises by Tenant to Landlord or Landlord's designee. The covenant of Tenant contained herein shall survive and remain in full force and effect following any such termination of this Lease.
(3) Landlord acknowledges that Tenant or its Affiliate may have an obligation under federal, state, or local law to give advance notice to Food & Beverage Personnel of any termination of their employment, and that failure to comply with any such notification obligation could give rise to civil liabilities. Therefore, notwithstanding anything to the contrary contained in this Lease, (i) the date of termination of this Lease, other than upon expiration of the Term, shall be extended so that the date of termination after notice of termination is given to or by Tenant shall be on a date which is not earlier than ten (10) days plus the number of days, if any, Tenant is required to give its employees advance notification of termination of employment by Tenant as required by the Worker Adjustment and Retraining Act, 29 U.S.C., § 2101 et. seq., as hereafter amended (“ WARN Act ”), or any similar federal or state statute; (ii) Landlord shall indemnify, hold harmless and defend Tenant and its Affiliates from and against any such liabilities based on Landlord’s actions (including terminating this Lease) which give rise to such a notification obligation on the part of Tenant or any of its Affiliates, if Landlord fails to extend the date of termination as required by, and in accordance with, subparagraph (3) of this paragraph 19(d); and (iii) Tenant shall continue to employ such Food & Beverage Personnel as are necessary and for so long as is necessary to not cause a “mass layoff,” “plant closing,” or other violation relating to the termination of Food & Beverage Personnel under the WARN Act. Landlord shall have no responsibility under, nor any liability to Tenant and its Affiliates with respect to, the WARN Act, or any similar federal or state statute, provided Landlord has complied with its obligations under this paragraph 19(d)(3).
20. Miscellaneous Provisions. The following terms, covenants and conditions are all made a part of this Lease:
(a) Waiver. The waiver by either Landlord or Tenant of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord or Tenant, unless such waiver is in writing signed by the party against whom such waiver is asserted.
Resolution No. 2022-124
Exhibit "B"
225
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12 (b) Entire Agreement. This Lease sets forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant, oral or written, relating to the subject matter of this Lease. Landlord has made no representations or promises not expressly contained herein. No subsequent alterations, amendment, change or addition to this Lease shall be binding upon Landlord and Tenant unless reduced to a writing and signed by them.
(c) Force Majeure. In the event that either party hereto shall be delayed, or hindered in, or temporarily prevented from, the performance of any act required hereunder by reason of an Unavoidable Delay, then performance of such act shall be excused for the period of said delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. In the event that either party shall be indefinitely prevented from the performance of any act required hereunder by reason of an Unavoidable Delay then performance of such act shall be excused. Notwithstan ding the foregoing, no Unavoidable Delay shall excuse the timely payment of money when due hereunder except as otherwise expressly provided in this Lease.
(d) Notices. Notices, statements and other communications to be given under the terms of this Lease shall be delivered in a timely fashion (and in any event within any time limits established elsewhere in this Lease) and shall be in writing and sent by certified or registered mail, postage prepaid, return receipt requested, or by, means and addressed as follows:
If to Landlord: City of Escondido
201 North Broadway
Escondido, California 92025
Attn: Joanna Axelrod, Deputy City Manager
[email protected]
If to Tenant: Escondido Golf, LLC
c/o CourseCo, Inc.
5341 Old Redwood Hwy, STE 202
Petaluma, CA 94954
Attn: Michael Sharp, President/CEO
[email protected]
or at such other address as from time to time designated by the party receiving the notice in accordance with this paragraph 20(d). The date of service of such notice shall be the date such notices are delivered to the party to whom the notice is given.
Statements and other communications to be given under the terms of this Agreement shall be delivered in a timely fashion (and in any event within any time limits established elsewhere in this Agreement) via email to the contact listed above.
Resolution No. 2022-124
Exhibit "B"
226
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13 (e) Captions and Paragraph Numbers. The captions and paragraph numbers appearing in this Lease are inserted only as a matter of convenience, and in no way define, limit, construe or describe the scope or intent of such section, nor in any way affect this Lease.
(f) Construction of Language. The language in all parts of this Lease shall be construed simply, according to its fair meaning, and not strictly for or against either Landlord or Tenant.
(g) Successors. Except as herein otherwise provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant. Nothing stated in the foregoing sentence shall limit the provisions of paragraph 18 of this Lease.
(h) Persons Indemnified. All agreements by either Tenant or Landlord to indemnify or hold the other harmless contained in this Lease shall inure to the benefit not only of the respective indemnitee but also to that of its and their subsidiaries and Affiliate, and shall also inure to the benefit of the members, directors, officers, employees and agents of any of the foregoing.
(i) Applicable Law. This Lease and all provisions thereof, irrespective of the place of execution or performance, shall be construed and enforced in accordance with the laws of the State of California. The sole and exclusive venue for any legal action under this Lease or in any way related to the Premises shall be the Superior Court of California in and for the County of San Diego, and Landlord and Tenant agree to submit to the jurisdiction of such court.
(j) Cumulative Rights. The rights and remedies conferred upon both Landlord and Tenant in this Lease and by law are cumulative.
(k) Savings Clause. If any provision of this Lease, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder or substantially increase the burden on any party hereto, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Lease.
(l) Attorneys' Fees and Expenses . In the event of any dispute or l itigation concerning the enforcement, validity or interpretation of this Lease, or any part hereof, the losing party shall pay all costs, charges, fees and expenses (including reasonable attorneys' fees and costs) paid or incurred by the prevailing party, regardless of whether any action or proceeding is initiated relative to such dispute and regardless of whether any such litigation is prosecuted to judgment.
For the purpose of this Lease, the terms "attorneys' fees" or "attorneys' fees and costs" shall mean the fees and expenses of counsel to the parties hereto, which may include printing, photostating, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals, and others not admitted to the bar but performing services under the supervision of an attorney. The terms "attorneys' fees" or "attorneys' fees and costs" shall also include, without limitation, all such fees and expenses incurred with respect to appeals, arbitrations and bankruptcy proceedings, and Resolution No. 2022-124
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14 whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred, and shall include all such fees and expenses incurred or anticipated to be incurred in collecting or enforcing any judgment in connection therewith.
(m) Injunctive Relief. In the event of a breach or threatened breach by either party of any of the covenants or provisions of this Lease, the other party shall, in addition to any remedies expressly mentioned in this Lease, have the right of injunction and the right to invoke any remedy at law or in equity.
(n) Further Assurances. Tenant and Landlord each agree to execute and deliver from time to time, promptly following any reasonable request therefor by the other party, any and all instruments, agreements and documents and promptly shall take such other actions as may be necessary or appropriate in the reasonable determination of the other party, to carry out the transaction described in this Lease.
(o) Trade Names, Royalties and Patents. All trade names, trademarks, logos, emblems and similar identifying matters related to or used in connection with the Premises shall be the sole and exclusive property of Landlord, and all matters relating to their use shall be subject to Landlord's approval in its sole judgment. If any design, device, material or process covered by letters patent, copyright or trademark is used by Tenant in connection with the Premises, it shall provide for such use by legal agreement with the Landlord of the patent, copyright or trademark or a duly authorized licensee of such Landlord.
(p) No Third-Party Beneficiaries. This Lease is not intended and shall not be deemed or construed to convey any rights, powers or privileges on any person, firm, partnership, corporation, or other entity not a party hereto.
(q) Incorporation of Exhibits. The Exhibits attached hereto shall be construed with and as integral parts of this Lease to be the same extent as if the same had been set forth verbatim herein.
(r) Approval by Landlord. In any provision of the Lease where Landlord's approval or consent is required, Landlord shall, except to the extent specifically stated to the contrary in such provi- sion, have the right to withhold or refuse its approval or consent in Landlord's sole and absolute discretion.
(s) Counterparts. This Lease may be executed in any number of counterparts, and each of such counterparts for all purposes shall be deemed to be an original, and all of such counterparts should constitute one and the same agreement.
(t) Nondiscrimination in Employment. Tenant will not discriminate against any employee or applicant for employment because of race, creed, color, age, sex or national origin. Tenant will use reasonable and diligent efforts to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex or national origin. Tenant shall not discriminate with respect to the following: employment, Resolution No. 2022-124
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15 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.
(u) Time. Time is of the essence of this Lease and each provision hereof of which time is an element.
(v) Confidentiality. Tenant shall hold confidential any information which Tenant receives in connection with the performance of its obligations hereunder and which concerns Landlord or its operations or business and shall not disclose all or any portion of such information to any third party, except for such disclosures as are necessary to perform Tenant's obligations hereunder or are required by law or by any proposed lender or mortgagee of the Premises.
(w) Compliance with Immigration Reform and Control Act . Tenant is aware of the provisions of the Immigration Reform and Control Act of 1986 (8 USC § 1101 - 1525) and agrees to com ply with these requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants employed in relation to this Lease.
(SIGNATURE PAGE FOLLOWS)
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16 IN WITNESS WHEREOF, the parties hereto have executed this Lease effective as of the date first written above.
"Landlord"
CITY OF ESCONDIDO
a California municipal corporation
By: Date:______________
Paul McNamara, Mayor
“Tenant”
ESCONDIDO GOLF, LLC
a California Limited Liability Company
By: CourseCo, Inc.
A California Corporation
By: Date: ______________
Michael Sharp, President/CEO
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
MICHAEL R. MCGUINNESS, City Attorney
BY:
Resolution No. 2022-124
Exhibit "B"
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Exhibit "A"
THE GOLF COURSE
ALL THAT REAL PROPERTY IN THE CITY OF ESCONDIDO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
ALL OF ASSESSOR’S PARCEL NUMBER 187-310-11 LYING NORTHERLY OF JESMOND DENE ROAD, AND LOT “R” ON ESCONDIDO TRACT NO. 819, MAP THEREOF NO. 14185, FILED FOR RECORD WITH THE SAN DIEGO COUNTY RECORDER ON APRIL 5, 2001 AS DOCUMENT NO. 2001-0207056.
Resolution No. 2022-124
Exhibit "B"
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Exhibit "B"
THE PREMISES
[to be attached]
Resolution No. 2022-124
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KEY-
CONSENT CALENDAR CURRENT BUSINESS
PUBLIC HEARING WORKSHOP
9/21/2022
PROCLAMATION - POLLUTION PREVENTION WEEK, SEPTEMBER 19-25 CONSENT CALENDAR- (A. FIRESTINE) - AWARD OF THE KIT CARSON PARKING LOT LIGHTING PROJECT - It is requested that the City Council adopt Resolution No. 2022-121 authorizing the Mayor to execute a Public Improvement Agreement with the lowest responsive and responsible bidder for the Kit Carson Parking Lot Lighting Project.
CONSENT CALENDAR - (M.MCGUINNESS) - CITY CONFLICT OF INTEREST CODE UPDATE - Request the City Council Adopt Resolution No. 2022-137, amending the Conflict of Interest Code for the City of Escondido pursuant to the Political Reform Act to update the list of designated public employees and public officials who are required to file a statement of economic interest and the disclosure categories.
CURRENT BUSINESS - (J. GARCIA) - CONSIDERATION OF PARTICIPATING IN THE NATIONAL LEAGUE OF CITIES 9/28/2022
PROCLAMATION - NATIONAL FIRE PREVENTION WEEK, OCTOBER 9-15, 2022 PUBLIC HEARING -(A. FIRESTINE) APPEAL OF PLOT PLAN APPROVAL FOR 1401 S. ESCONDIDO BOULEVARD (PL21-0304) PUBLIC HEARING - (A. FIRESTINE) APPEAL OF PLOT PLAN APPROVAL FOR 1600 S. ESCONDIDO BOULEVARD (PL22-0032) CURRENT BUSINESS - (J. SCHOENECK) - SIFI CONTRACT - Request the City Council Approve a Right-of-Way Encroachment Agreement with SiFi Network Oceanside, LLC to allow the installation of a citywide fiber communications system, and authorize the City Manager to execute the agreement.
CURRENT BUSINESS - (M. MCGUINNESS) LEGAL UPDATE ON SAFE SIDEWALK VENDING ACT (AB 946) AND CONSIDERATION OF LOCAL REGULATIONS - Request that the City Council receive and file report and give direction to staff on future actions, if any. 10/5/2022 - NO MEETING
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