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MANAGEMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND
SANTA ANA GOLF, LLC FOR RIVER VIEW GOLF COURSE
THIS MANAGEMENT AGREEMENT (“Agreement”) is made and entered into as of the 3rd day of March, 2026 (“Effective Date”) by and between the City of Santa Ana, a California Municipal Corporation (“City”) and Santa Ana Golf, LLC, a California limited liability company and a wholly owned subsidiary of CourseCo, Inc. (“Contractor”). City and Contractor are at times collectively referred to as the “Parties.”
RECITALS
WHEREAS, on May 15, 1953, the City acquired, by Corporation Grant Deed, that certain real property located in the City of Santa Ana along the southeasterly boundary of the Santa Ana River channel north of 17th street.
WHEREAS, on November 2, 1964, the City and Riverview Golf Company (subsequently restructured as Riverview Golf LLC) entered into a lease agreement, as amended, for that certain real property in the City of Santa Ana along the south easterly boundary of the Santa Ana River channel north of 17th street for the construction and operation of a 9-hole golf course, commonly known as River View Golf Course (“Facility”).
WHEREAS, on September 2, 1969, Riverview Golf LLC and the Orange County Flood District (“District”) entered into a lease agreement, as amended, for a portion of the District ’s Santa Ana River Channel (located along the Santa Ana River between the 22 Freeway and 17th Street in the City of Santa Ana) allowing for Riverview Golf LLC to expand its business operation to that of an 18-hole golf course using the combined properties under both the City and District’s lease agreements.
WHEREAS, the lease agreement with Riverview Golf LLC and the City is set to expire on April 30, 2026, at which time City will be without professional management over the Facility.
WHEREAS, the lease agreement between Riverview Golf LLC and the District has expired and Riverview Golf LLC is continuing use of the District’s land in holdover status.
WHEREAS, City and the District are actively negotiating a lease agreement for City’s use of the District’s land to continue operations of River View Golf Course as an 18-hole public golf course, at which time, Riverview Golf LLC’s holdover tenancy will be terminated.
WHEREAS, City is in need of a professional manager for the complete organization of the Facility, including, but not limited to, accounting and administration of all receipts and disbursements, marketing and sales, supervision of all employees , procurement of all insurance , and maintenance of the Facility and its equipment.
WHEREAS, City has received a proposal from Contractor, has reviewed the previous relevant experience and evaluated the expertise of Contractor, and desires to retain Contractor to render services under the terms and conditions set forth in this Agreement.
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NOW, THEREFORE, in consideration of the promises and the respective and mutual agreements contained herein, said parties hereby agree as follows:
ARTICLE 1 - DEFINITIONS
As used in this Agreement, the following terms shall have the respective meanings indicated below:
Agreement means this Management Agreement.
Annual Budget Plan means the document as described in Section 3.4.
Affiliate means any and all corporations, partnerships, trusts, limited liability companies and other entities directly or indirectly controlled by, controlling, or subject to direct or indirect common control of an entity or person.
Capital Improvements means any alteration or addition to, or rebuilding or renovation of, the Facility, the cost of which is not charged to property operation and maintenance.
Cash Register Bank or Petty Cash Funds, as described in Section 6.1.
City means City of Santa Ana, a California Municipality or any successor to City’s interest under this Agreement.
City Account shall have the meaning described in Section 6.1 of this Agreement.
Commencement Date means the date upon which Contractor assumes its obligations under this Agreement to manage and operate the Facility, which date shall be May 1, 2026.
Comparable Facilities means other municipal golf course facilities located in Orange County, charging comparable green fees, with a comparable level of maintenance standards and a comparable quality of improvements and amenities.
Compensation means the direct salaries and wages paid to or accruing for the benefit of any manager or other employee, together with all fringe benefits payable to or accruing for the benefit of such manager or o ther employee, including employer’s contribution under the Federal Insurance Contributions Act (“FICA”); unemployment compensation, or other employment taxes; pension fund contributions, worker’s compensation, group life and accident and health insurance premiums as well as any payments made by Contractor which fall within the deductible amounts of any such policies; retirement; disability; and other similar benefits.
CPI means The United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for all urban consumers (all items for the Los Angeles -Riverside-Orange County metropolitan area on the basis of 1982 - 1984 equals 100). Notwithstanding the foregoing, if the format or components of the CPI are materially changed after the date hereof, then Contractor shall substitute an index which is published by the Bureau of Labor Statistics or similar agency and which is most nearly equivalent to the CPI in effect as of the date hereof. The substitute index
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shall be used to calculate the in crease in the Base Line NOI unless City objects to such index in writing within fifteen (15) days after the date Contractor notifies City of Contractor’s substitute index. If City objects to the substitute index, then Contractor and City shall submit the selection of the substitute index for binding arbitration in accordance with the rules and regulations of the American Arbitration Association at its office closest to the Facility. The costs of arbitration shall be borne equally by City and Contractor.
Effective Date means the date of the Management Agreement.
Facility has the meaning as set forth in the recitals of this Agreement , and is further documented by way of the “Facility Map s,” attached hereto and incorporated herein by this reference as Exhibit A.
Operating Account means a bank account established by Contractor, for the sole purpose of the Facility articulated in the Agreement as set forth in Section 6.1.1.
Furnishings and Equipment means all furniture, furnishings, trade fixtures, appar atus and equipment, including golf course maintenance vehicles and equipment, golf carts, driving range pickers and pullers, mats, buckets, cash registers, rental golf clubs, ball washers, benches, uniforms, and other personal property used in or held in s torage for use in the operation of the Facility, other than Operating Inventory and fixtures attached to and forming part of the Improvements.
Golf Course Manual is the policy and procedures for the operation and maintenance of the Facility as it may be revised during the term of this agreement as developed and maintained by the Contractor. If any such revision results in an increase in direct costs, the City shall have the discretion to approve and increase the applicable line items in the Annual Budget to account for such increased costs.
Gross Revenues means all money received as a result of the operation of the Facility and the sale of goods and services at the Facility, determined in accordance with generally accepted accounting principles consistently applied. Gross Revenues shall include, but are not limited to, all green fees; annual fees; rental fees for golf carts, golf clubs and bags, and other rental items; range balls; reservation fees; fees for golf handicap service; food and bev erage sales; liquor sales; revenue generated from space rentals and from event -related meetings, banquets, parties, tournaments, and other group gatherings; merchandise sales; golf instruction fees; revenues from golf schools; gross receipts received by licensees or concessionaires (if applicable); proceeds from insurance; any amount received by Contractor in connection with any claim, demand, or lawsuit; and all other revenues generated by the Facility. Gross Revenues shall be reduced by any cash refunds o r credits allowed on returns by purchasers. Gross Revenues shall not include the following: (a) sales taxes, excise taxes, gross receipts taxes and other similar taxes now or later imposed upon the sale of food, beverages, merchandise or services and paid to the appropriate taxing authority, whether added to or included in the selling price; (b) the amount of any gratuities to Facility employees, or service charges added to customer billings which represent gratuities to Facility employees; (c) proceeds of any borrowings by Contractor or City; (d) any initial operating funds and funds subsequently provided by City to satisfy the working capital needs of the Facility,
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if any; (e) any operating funds provided or authorized by City to Contractor to subsidize an d/or support ongoing operations in the event revenues do not meet expenses; and (f) refunds for the value of merchandise, Supplies or equipment returned to shippers, suppliers or manufacturers.
Impositions means all taxes, assessments, water, sewer or othe r similar rents, rates and charges, levies, license fees, permit fees, inspection fees and other authorization fees and charges, which at any time may be assessed, levied, confirmed or imposed on the Facility or the operation of the Facility (excluding fed eral and state taxes imposed on the income earned by Contractor or its employees hereunder).
Improvements means the buildings, structures (surface and subsurface) and other improvements now or hereafter located on the Land.
Insurance Requirements means all requirements of each insurance policy, and all orders, rules, regulations and other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) applicable to the Facility or the operation of the Facil ity; this term shall not, however, include recommendations of insurance carriers.
Land means the parcel or parcels of land described in Exhibit “A” attached to this Agreement and incorporated herein by this reference.
Legal Requirements means all laws, statutes, ordinances, orders, rules, regulations, permits, licenses, authorizations, directives and requirements of all governments and governmental authorities, which now or hereafter may be applicable to the Premises and the operation of the Premises.
Major Capital Improvements shall mean a project for the erection or improvement of the Facility’s buildings, structures, paved pathways, drains, or sewers. Whereas, Non-Major Capital Improvements shall mean the m aintenance and repair of Facility buildings, structures, paved pathways, drains, or sewers.
Management Fee has the meaning set forth in Section 5.1.
Net Operating Income means Gross Revenues from the Facility, minus all operating expenses which are attributable (in accordance with generally accepte d accounting principles) to the use and operation of the Facility, including, without limitation: employee costs, operating expenses, Centralized Services, the Management Fees, expense reimbursements, all insurance costs related to the operation of the Courses, personal property taxes (limited to an amount allocable to the Facility) , and golf cart leases and operating costs; provided, however, such expenses shall not include any charges for amortization, depreciation, capital expenditures , debt service, and State and Federal income taxes, overhead allocations, or any Incentive Management Fees paid to Contractor hereunder.
Operating Period means the period beginning on the Commencement Date and ending on the earlier to occur of (a) the last day of the term of this Agreement, or (b) if this Agreement is terminated, the effective date of such termination (“Last Operating Day”).
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Operating Inventory means consumable items used in or held in storage for use in the operation of the Facility, including scorecards and cart tickets, driving range balls, professional shop merchandise, food and beverages, paper and plastic ware, fuel, cleaning materials, fertilizers, pesticides, linens, glassware, sanitation supplies and other similar items.
Operating Year means the fiscal year, from July 1st to June 30th, except that (a) the first Operating Year shall be the period beginning on the Commencement Date and ending on the following June 30, 2026, and (b) the last Operating Year shall be the period beginning on July 1st of such year and ending on the Last Operating Day.
Other Contractor Facilities means all other golf course facilities within the United States owned, leased and/or operated, directly or indirectly, by Contractor.
Premises means a collective term for the Land and Improvements and City’s interest in the Land and Improvements, and any greater estate or interest hereafter acquired, together with all entrances, exits, rights of ingress and egress, easements and appurtenances belonging or pertaining to the Premises.
Special Consulting Services has the meaning set forth in Section 3.6.
ARTICLE 2 - TERM OF AGREEMENT
2.1 Term. The term of this Agreement shall commence on the Effective Date as shown on Page One (1) of this Agreement and shall terminate on June 30, 2031, (the “Initial Term”) unless terminated sooner pursuant to Article 8 of this Agreement. The term of this Agreement may be extended for two (2) additional five (5) year terms (each a “Renewal Term”) with the extensions to commence upon the expiration of the Initial Term or any Renewal Term, at City’s sole discretion (hereinafter the phrases “Initial Term” and “Renewal Term,” if any shall be collectively referred to as the “Term”). The City Manager or their designee may extend this Agreement on behalf of City.
2.2 Time of Performance. Time is of the essence in the performance of the Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to perform the Services in a diligent and timely manner may result in termination of the Agreement by City.
ARTICLE 3 – SERVICES TO BE PROVIDED BY CONTRACTOR; OPERATING
RESPONSIBILITIES
3.1 Goal of Agreement. It is the intent and goal of City that the Facility be operated in a professional, efficient and productive manner that shall provide for the highest quality of experience for Invitees of the Facility as found in the best comparable municipally -owned golf courses, achieve the desired results of an effective maintenance program of the golf course and Facility, provide for more diversified uses of the Facility that would generate additional income (such as tournaments and other special events), and achieve or exceed the budgeted results for the Facility.
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3.2 Services. Subject to the terms and conditions set forth in the Agreement, Contractor shall provide to City all labor, materials, tools, equipment, services, permits, transportation, and incidental and customary work necessary to fully and adequately supply the services necessary for the efficient operation of the Facility (“Services”). The Contractor’s services are more particularly described in Contractor’s Proposal, dated January 28, 2026, incorporated into this Agreement by reference as though fully set forth herein.
3.3 Grant to Contractor. Except as otherwise expressly provided in this Agreement, City grants to Contractor the right to manage and operate the Facility pursuant to the terms of this Agreement, and Contractor agrees it will manage and operate the Facility in accordance with the approved Annual Budget Plan and in a manner comparable to and consistent with the management and operational practices of Comparable Facilities to the extent established in the Annual Budget Plan and approved by City ( except as otherwise set forth in this Agreement) . Contractor shall perform its services in a professional, timely and diligent manner. Without in any way limiting Contractor’s right to manage and operate the Facility in accordance w ith the terms of this Agreement, Contractor, subject to the approval of City and in accordance with the approved Annual Budget Plan and terms of this Agreement, shall have the authority and responsibility to: (a) implement each approved Annual Budget Plan; (b) determine, establish, and implement the policies, standards, and schedules for the operation and maintenance of the Facility and all matters affecting customer relations; (c) hire, train, and supervise the general manager, course superintendent, and all Facility employees; (d) supervise and direct all phases of advertising, sales, marketing and business promotion for the Facility; and (e) establish accounting and payroll procedures and functions for the Facility. To the extent the foregoing duties are discussed, detailed, or included in the Annual Budget Plan, Contractor will carry out such duties consistent therewith.
City agrees it will reasonably cooperate with Contractor to permit and assist Contractor to carry out its duties under this Agreement , provided Contractor obtains reasonably advance notice for such cooperation and assistance. Contractor shall work with, and obtain any necessary approvals from, the City Manager or their designee.
3.4 Annual Budget Plans.
3.4.1 Preparation. Contractor will submit to the City Manager or their designee on an annual basis at least ninety (90) days in advance of each Operating Year (except for the first Operating Year for which the Annual Budget Plan (transitional) shall be submitted thirty (30) days prior to the Commencement Date) an “Annual Budget Plan” consisting of (a) a budget which shall include for the ensuing year (or portion thereof) bona fide good faith estimates of all projected revenues of the Facility (broken down on a line item basis) and the p rojected expenditures for (i) property operation and maintenance, (ii) Capital Improvements which constitute normal repairs, replacements, and alterations, (iii) Furnishings and Equipment and Operating Inventory, (iv) advertising, sales, and business promo tion, (v) emergency expenditures, and (v i) employee Compensation and (b) an operating/business plan for the Facility setting forth in detail a marketing and promotions plan, a schedule of proposed golf charges, an operating schedule (which shall include hours of operation and staffing levels) and a maintenance plan. City acknowledges that the budget will not constitute a guarantee of the actual revenues or expenses of operating the Facility.
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The parties understand that, as provided in Article 11, budgets for Major Capital Improvements will be treated separately and will not form part of the Annual Plans.
3.4.2 Approvals. Each Annual Budget Plan shall be subject to the prior written approval of the City Manager or their designee , and the new Annual Budget Plan for a given Operating Year shall not become effective without such approval , which approval shall not be unreasonably withheld. It is contemplated by the parties that the Annual Budget Plan will be agreed upon by the parties not later than sixty (60) days following delivery of the Annual Budget Plan by Contractor to City. If City fails to either approve the Annual Budget Plan within said 60- day period or to advise Contractor of its objections to the Annual Budget Plan within such period, then City shall be deemed to have approved the Annual Budget Plan as submitted. In the event of a dispute with regard to an Annual Budget Plan, the parties shall use good faith efforts to resolve such dispute. Pending the resolution of such dispute, Contractor shall continue to manage and operate the Facility in accordance with the standards set forth in this Agreement and the most recent approved Annual Budget Plan, as it may have been mutually amended by the parties during the preceding year in accordance with this Agreement, at a level of expenditures comparable to those of the preceding year subject to reasonable increases in Operating Expenses (as defined h erein) requested by Contractor due to (a) increases in the number of guests using the Facility, (b) increases in Gross Revenues (as defined herein), or (c) other matters beyond the reasonable control of Contractor (e.g., without limitation, increases in utility charges, etc.), plus an amount equal to the increase, if any, in the CPI during the prior Operating Year. Once approved, Contractor may propose amendments or revisions to the Annual Budget Plan to take into consideration variables or events that did not exist, or could not be anticipated by Contractor at the time the Annual Budget Plan was prepared. Any such proposed amendments or revisions shall be submitted in writing and shall be subject to City ’s prior approval, which approval shall not be unrea sonably withheld or delayed.
3.4.3 Compliance. Expenditures from the Golf Course will be recorded into the City’s financial ledger and therefore must comply with the City ’s budget ordinance. The City ’s budget ordinances states that appropriations hereby made shall constitute the maximum expenditures a uthorized for the several offices, agencies and departments opposite which the amounts of such appropriations are shown in the City Budget. The Contractor shall not exceed the total amount of expenditures identified in the approved Annual Budget Plan, inc luding approved adjustments. On a quarterly basis, the Contractor may submit any adjustments to the Annual Budget Plan for the City ’s consideration. Any revision to the Annual Budget Plan shall require the approval of the City’s Representative and may require further approval by the City Council.
3.4.4. Emergency Expenditures. Notwithstanding anything in this Agreement to the contrary, in the event of an emergency which arises by act of God or any event or act beyond the control of Contractor, or a dan gerous condition exists that requires immediate repair, or a governmental directive or order is issued to City, Contractor is authorized to take such actions as may in its reasonable discretion be required (including expending any funds reasonably necessary to respond to such condition or event); provided, however, that if an emergency occurs which requires funds not otherwise budgeted for in the Emergency Expenditures of the annual budget, Contractor shall immediately notify City of the occurrence of any of the situations referenced
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herein and the action Contractor proposes to take, or has taken (including the amount of any expenditures). If Contractor is unable to contact City, or circumstances require immediate action, then Contractor shall be authorized to make reasonable emergency expenditures which in the aggregate do not exceed the amount budgeted therefore in the Annual Budget Plan. Provided that an emergency expenditure was justified, the lin e item in the Annual Budget Plan for emergency expenditures shall be deemed increased by the amount of the emergency expenditures made by Contractor so that at all times, the line item amount for emergency expenditures shall remain at the approved level.
3.5 Technical Assistance Services . During the Operating Period, Contractor will provide, as needed, certain supervisory and consulting services to the Facility from Contractor’s regional and corporate technical assistance services program, including business planning and budgeting, Capital Improvement planning, training, security, marketing and sales, central purchasing, merchandising, food and beverage, maintenance, human resources, legal compliance, financial reporting, and accounting. Except as provided in Section 3.6 below, these services will be provided by Contractor without any additional charge to City.
3.6 Special Consulting Services. In addition to the services describ ed in Section 3.5 above, upon City’s prior written request and approval, Contractor may provide to the Facility such additional consulting services not contemplated by this Agreement which would not otherwise be performed in the ordinary course of day-to-day operations of the Facility, including but not limited to special legal consultation, (as necessary and as approved by City in advance), construction and design consultation and construction supervision related to Major and non -Major Capital Improvements (“Special Services ”) and as further described in Contractor ’s Proposal , dated January 28, 2026. City shall reimburse Contractor for all costs and expenses associated with Contractor’s providing such Special Services which shall be the total of (i) the actual cost of labor, (ii) the actual cost of supplies and materials, and (iii) all related travel, subsistence and similar expenses incurred by Contractor’s personnel associated with the performance of the Special Services, but not to exceed the budget appr oved by the City as set forth in the immediately succeeding sentence. Upon City ’s request for the performance of a Special Services project, Contractor shall prepare a scope of work and budget and submit to City for review and approval.
Contractor shall not commence any Special Services project without City’s prior approval.
3.7 Maintenance and Other R esponsibilities of Contractor. Without in any way limiting Contractor’s right and obligation to manage and operate the Facility in accordance with and subject to the Annual Budget Plans, Contractor shall, in its own name perform , or cause the same to be performed for the Facility, those maintenance and other services as set forth in Exhibit B, attached hereto and incorporated herein by this reference.
Maintenance requirements for the District ’s land may be periodically updated by the District. Therefore, the Parties hereby agree that the maintenance requirements set forth in this Section 3.7, and set forth in Exhibit B, shall be subject to amendment from time to time based on the District’s requirements. The City Manager or their designee shall have the authority to amend this Section 3.7, only, based on new, updated, or amended maintenance requirements.
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3.8 Personnel.
3.8.1 General. Subject to the Annual Budget Plan and the terms of this Agreement, Contractor shall employ all of the employees of the Facility, and all such employees shall be deemed employees of Contractor and not employees of City or joint employees of City and Contractor. Contractor shall recruit, h ire, train, discharge, promote and supervise the management staff of the Facility (i.e., the general manager or course manager, the assistant managers, the course superintendent, department heads and other key personnel), and Contractor shall supervise thr ough the management staff the recruiting, hiring, training, discharge, promotion, and work of all other employees of the Facility. Contractor shall provide any legally mandated training, safety training in accordance with industry standards, and training in Contractor’s cash handling and inventory control procedures for all Contractor employees.
Further, Contractor will use reasonable efforts to provide a safe work environment for Contractor employees and a workplace free from illegal harassment or illegal discrimination. For a period of one year after the date of termination of this Agreement pursuant to Section 8.1, City shall not solicit or hire as an independent contractor, agent, consultant or employee any gener al manager or superintendent previously hired or employed after the Effective Date for the Facility without the consent of Contractor. In the event that City is dissatisfied with the performance of any Contractor personnel, the following procedure shall be followed: (i) City shall communicate any complaints regarding personnel below the rank of general manager to the general manager and shall communicate complaints regarding the general manager to Contractor’s regional manager for the region in which the Facility is located, and (ii) Contractor shall reasonably and promptly investigate and take appropriate action , as determined by Contractor, with respect to City ’s complaints. All employees of the Facility shall be properly qualified for their positions . The Compensation of the management staff and all other Facility employees shall be approved by City as part of the Annual Budget Plan (or, in the event that a change in management staff occurs during an Operating year and after the Budget has been finaliz ed, then as otherwise approved in writing by City) and be an Operating Expense of the Project payable by City in accordance with this Agreement.
3.8.2 Benefit Plans. Contractor shall have the right to provide eligible employees of the Facility with profit sharing and other employee retirement benefits and disability, health and welfare benefits and other benefit plan or plans now or hereafter available to employees of Other Contractor Facilities, if such benefits have been approved in the Annual Budget Plan, and to charge the Facility with its allocable share of such Contractor plan or plans.
3.8.3 Temporary Assignment of Other Contractor Personnel. If Contractor shall reasonably deem it advisable, and after City ’s prior approval, Contractor may temporarily assign to the Facility the general manager, the head golf professional and other members of the management staff from the employees of Contractor or Affiliates of Contractor or from the staff of Other Contractor Facilities. During such tim e as these employees are temporarily assigned to the Facility, all such employees will be paid their regular Compensation (as defined herein), and the pro -rata share of such employees ’ Compensation equal to the actual time such employees worked at the Facility shall be an Operating Expense of the Facility.
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3.9 Restrictions on Use of Facility.
(a) The Facility shall be used solely for the operation of an eighteen (18) hole championship golf course, and retail golf shop, bar and restaurant, banquet facility, driving range and such other uses and amenities as may be approved by City and are compatible with the operation of an eighteen (18) hole championship golf course including, by way of illustration, a golf school, a health spa, a sports and entertainment facility and banquet facilities.
(b) Contractor agrees not to allow the use of the Facility for or carry on or permit any dangerous activity or nuisance. Further, Contractor agrees not to use the Facility for any purpose which would increase existing rates of insurance or cause cancellation of any insurance policy carried by City or Contractor. Contractor shall cause the Facility to comply with all Legal Requirements relating to the condition, use and occupancy of the Facility.
ARTICLE 4 - INSURANCE AND INDEMNIFICATION
4.1 Insurance Policies. Without limiting City’s right to indemnification, it is agreed that Contractor shall maintain in full force and effect, at the expense of the City in accordance with the Agreement, the minimum insurance coverage s set for in Exhibit C, attached hereto and incorporated herein by this reference.
4.2 City’s Insurance. City may, at its sole election, procure and maintain property insurance with respect to the Facility during the term of this Agreement.
4.3 Indemnification and Hold Harmless . Contractor shall fully defend, indemni fy, and hold harmless City and its elective and appointive boards, commissions, officers, agents, employees, volunteers , United States Army Corp of Engineers , at Contractor’s cost, from and against any and damages, liabilities, claims, costs or expenses, including but not limited to reasonable attorneys’ fees and costs, for economic damage to third parties, property damage or bodily injury, including, but not limited to death:
(a) Which results from any act or omission by Contractor or any officer, director, employee, or subcontractor of Contractor in connection with Contractor’s performance under this Agreement;
(b) Which result from any action taken by Contractor relating to the Facility (i) that is prohibited by this Agreement, or (ii) that is not within the scope of Contractor’s duties under this Agreement, or (iii) that is not within Contractor's delegated authority under this Agreement; (c) Which result from Contractor’s violation o f Insurance Requirements or Legal Requirements; or
(d) Which City, by reason of any alleged breach of a “non-delegable duty, is subject to, because of the Contractor’s violation of any national, state, or local law, regulation or order which pertains to providing safe working conditions for Contractor’s employees, or because of Contractor’s employees; or
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(e) Which result from fines imposed by administrative or regulatory bodies for actions caused by Contractor or its officers, employees or agents;
(f) As respects acts, errors or omissions in the performance of professional services, Contractor to the extent arising directly out of Contractor’s (or Contractor’s contractors’ or subcontractors”, if any) negligent acts, errors or omissions in the performanc e of professional services under this Agreement but only to the extent such Claims are covered by valid and collectible insurance proceeds.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not City, Contractor, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) and shall survive the termination of this Agreement.
This section shall not apply to damages, liabilities, claims, costs, or expenses to the extent caused by City’s sole negligence or will misconduct. The provisions of this Section shall survive the expiration of this Agreement.
4.4 Responsibility for Damages or Injury
4.4.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing work at the Facility or for injury to or death of any person as a result of Contractor’s performance of the services required hereunder; or for damage to property from any cause arising from the performance under this Agreement by Contractor, or its subcontractors, or its workers, or anyone employed by either of them.
4.4.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor’s work under this Agreement, or the work of any subcontractor or supplier selected by Contractor.
4.4.3 Contractor shall perform all work under this Agreement in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property.
Contractor shall be liable for any private or public property damaged during the performance of work under this Agreement.
4.4.4 The rights an d obligations set forth in this Section shall survive the termination of this Agreement.
4.5 Handling of Claims . Contractor shall be responsible for handling all claims for any losses, damages, liability, and expenses (including without limitation persona l injury and property damage claims) arising out of the operation, maintenance, repair, or improvement of the Facility, whether or not such claims are covered by the insurance required under this Article 4.
Handling such claims shall include without limitation responding to such claims, investigating
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such claims, and retaining legal counsel or experts to defend such claims. All claims handling responsibilities shall be in accordance with Contractor and insurance company requirements, and shall be sub ject to City ’s prior written approval, which shall not be unreasonably withheld or delayed, and paying any losses, damages, and expenses relating to such claims and obtaining fully executed settlement releases on behalf of the City. Contractor shall provide City with monthly and annual reports of claims activities on a schedule and in a format reasonably acceptable to the City.
City understands and agrees that with respect to all policies of insurance required under this Article 4 (whether such policies are maintained by City or Contractor), the portion of any losses, damages, and expenses paid with respect to such claims which is subject to a deductible amount or a self - insurance or a self-assumption amount shall be the sole responsibility of City. If at any time during the term of this Agreement, City desires to assume responsibility for handling of claims, the parties may amend this provision as provided in Section 1 2.6 Modifications and Changes, subject to (i) the approval of the applicable insurance c ompanies; and (ii) the reasonable approval of the Contractor.
ARTICLE 5 - MANAGEMENT FEES
In addition to the costs and expenses to be reimbursed to Contractor pursuant to this Agreement, City shall pay Contractor the Management Fee computed and payable as follows:
5.1 Management Fee. In consideration of Contractor’s services during the Operating Period, City shall pay to Contractor a “Management Fee.” For the first twelve (12) months of the term of this Agreement, the Management Fee shall equal Ninety-five Thousand Dollars ($95,000) per annum (i.e., ($7,917) per month). The Management Fee shall increase on each anniversary of the Effective Date (until termination of this Agreement) by three percent (3%) of the Management Fee in effect prior to the applicable increase. The Base Management Fee shall be paid to Contractor, in equal monthly installments . The Parties agree to renegotiate, in good faith, the terms of the Incentive Management Fee no later than ninety (90) days prior to expiration of the Initial Term and expiration of the first Renewal Term.
5.2 Incentive Management Fee. In addition to the Management Fee set forth in Section 5.1, Contractor shall be entitled to an Incentive Management Fee. The Incentiv e Management Fee shall be calculated as 10% of Gross Revenues in excess of $4.0 million actually received by City in the preceding fiscal year not to exceed an amount equal to 50% of the Management Fee.
5.3 Payment Schedule. Contractor shall be paid monthly and in accordance with the process set forth in Section 6.1.1 below.
5.4 Payment of Incentive Management Fee. Contractor shall submit to City a written statement detailing Net Operating Income received for each fiscal year (or portion thereof in the event of termination prior to the end of an Operating Year) no later than 21 days following the end of such period, including a calculation of any Incentive Management Fee due. Subject to City ’s approval, which shall not be unreasonably withheld, Contractor shall withdraw its Incentive Management Fee from the Operating Account no later than thirty (30) days following receipt of the statement and such supporting documents as City may reasonably request.
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5.5 Accounting Services. In addition to management services herein, Contractor shall provide accounting services to the City, including services pertaining to payment disbursement and financial reporting. Contractor may provide these services or may employ accountants or outside services to provide some or all of such services. For these accounting and administrative services City shall pay Contractor, in addition to the Fixed Management Fee and Incent ive Management Fee, a separate “Accounting Fee” in the amount of Twenty-one Thousand Dollars ($ 21,000) per annum (i.e., ($ 1,750) per month), to be adjusted annually by 3% beginning in year two.
5.6 City Council Appropriation . All Parties recognize that the continuation of this Agreement after the close of any fiscal year of City, which fiscal year ends on June 30, of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. City does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty should accrue to City in the event this pro vision shall be exercised.
Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties on items delivered, services provided, monies paid and monies due.
5.7 Renewal Term Fees. For any Renewal Term, the City Manager or their designee and Contractor shall negotiate and agree upon any adjustment to the Fees ninety (90) days prior to the commencement of the Renewal Term.
ARTICLE 6 - ACCOUNTS; WORKING FUNDS; RECORDS AND REPORTS
6.1 Bank Account. In connection with the operation and management of the Facility, the following bank account shall be provided by City and Contractor in a bank or banks approved by City, and shall be subject to City’s audit and inspection (the “Bank Account”):
6.1.1 Operating Account. Contractor will supply a separate bank account (at a bank approved by the City) for Contractor to deposit all Gross Revenue and pay related expenses derived in connection with the operation and management of the Golf Course. City will initia lly fund the bank account with funds necessary for operations.
Contractor will deposit revenue immediately. Contractor shall deposit daily into the account, no later than the next business day following receipt, all gross revenues collected. If an armored transport service is utilized, Contractor shall provide daily pick up of deposits on the next business day following r eceipt of gross revenues. Under no circumstances will Contractor permit funds collected to be taken anywhere off -site by any employee. Contractor will follow all other procedures established by City for depositing daily cash receipts.
Contractor shall use the golf course revenue generated to pay Operating Expenses and to collect Contractor’s monthly Management and Accounting Fee. Contractor shall then submit payments to City for the remaining net income generated on a monthly basis. If funds are needed beyond the amount of revenue generated in a month and the initial bank account funds are used, Contractor shall replenish the initial bank account funds first from the succeeding month’s revenue.
Contractor shall also provide monthly reports and supporting documentation to City reflecting gross revenues collected by Contractor and total operating expenses incurred by
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Contractor. Contractor shall provide a bank reconciliation report for the month. Reports shall be provided 21 days after the end of the preceding month.
Until such monies or other things of value have been deposited into the City' s account and verified by the bank in accordance with this Agreement, Contractor bears all risk of loss, therefore, including, but not limited to, damage, destruction, disappearance, theft, fraud, or any dishonest, or unlawful act, or other hazard, irrespective of location caused by Contractor' s employees or any other person or entity within Contractor' s control. Should such an event or act occur, Contractor shall i mmediately notify the City' s Executive Director of Parks, Recreation and Community Services Agency and the Santa Ana Police Department, and Contractor shall prepare a report of such incident. Contractor shall notify the City of any operational changes dee med necessary by Contractor to safeguard the City' s monies or things of value. Contractor will retain copies of daily bank -endorsed deposit slips for the above deposits for a period of not less than five (5) years from the date each deposit is made. Contractor will follow all other procedures established by City for depositing daily cash/ credit card receipts.
6.2 Expenditures. Contractor is authorized to pay such amounts at such times as are required in connection with the operation, maintenance, repair, and improvement of the Facility and related facilities in accordance with any approved Annual Budget Plan and/or budget, subject to the provisions of this Agreement, including but not limited to all amounts specifically payable to or reimbursable to the Contractor as follows: the Compensation and expenses of the management staff and other employees of the Facility; and (a) all costs and expend itures incurred or made in connection with the items described in Section 3.3 and all other expenditures which Contractor is permitted or required to make under any other provision of this Agreement;
(b) reimbursements and other amounts due to Contractor and Affiliates of Contractor under any provision of this Agreement;
(c) premiums for any insurance maintained by City or Contractor in accordance with the provisions of Article 4 (Insurance Requirements); (d) the Management Fe e, Incentive Management Fee, and Accounting Fee, computed in accordance with the provisions of Article 5. Upon request of City from time to time, Contractor shall distribute from the Operating Account to accounts controlled solely by City such funds which are in excess of the amounts required to maintain working capital needs of the Facility and for Contractor to perform pursuant to this Agreement.
6.2.1 Excluded Expenditures . The following costs are not considered Expenditures and shall not be reimbursed or included in the Annual Budget. (a) Any penalties or fines imposed by any governmental agency, except for those penalties or fines caused by the act of omission of City or not reasonably related to the acts or omissions of Contractor.
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(b) Expense of Contractor’s corporate office, except for the Accounting Fee. (c) Employee salaries or any compensation of any corporate or regional employee of Contractor.
(d) Employee claims, fines, lawsuits, etc. resulting from Contractor ’s breach of the Agreement; any costs and expenses not author ized by this Agreement or approved by the Santa Ana City Manager; any costs, claims covered by Contractor’s indemnity obligations hereunder, any costs incurred by Contractor to repair or replace any Facilities to the extent of damage resulting from the intentional misconduct or negligence of Contractor.
6.3 Insufficient Funds. Contractor shall monitor the Facility ’s cash flow and shall provide to City a report detailing projected cash flow in the event that Contractor projects an Operating Deficit, which e xceed Operating Account funds available, to occur within thirty (60) days of providing such report. If at any time funds in the Operating Account shall be projected to be or are insufficient to pay the Facility ’s Expenses for the following 60 days, Contr actor shall notify City and request a sufficient amount (“Additional Working Capital”) to satisfy same so that Contractor will have sufficient funds in the Operating Account to prevent any delinquency in payment for such expenses, and City agrees to provid e such funds within thirty (30) days after Contractor notifies City. Contractor shall not be obligated to advance any of its own funds to or for the account of the Facility or City, nor to incur any liability unless City has furnished Contractor with funds necessary for the discharge thereof. In the event City fails to timely provide Contractor sufficient Additional Working Capital to pay expenses, Contractor shall be under no obligation to pay any bill if there are insufficient funds in the Operating Acc ount. Notwithstanding the foregoing, if Contractor advances any funds in payment of an expense authorized by any Annual Budget Plan or budget, or an emergency expenditure, Contractor may reimburse itself from the Operating Account.
6.4 Accounting Procedures/City’s Right to Audit
6.4.1 Books and Records . Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs i ncurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. City shall have the right to audit Contractor’s accounting procedures and internal controls of Contractor’s financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any transaction s under this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement.
Contractor shall provide an audit report to the City on or before December 1 st of each year, beginning December 1, 2027.
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6.5 No Default Due to Lack of Funds . If Contractor is unable to perform any of its Services or covenants under this Agreement because of the failure on the part of the City to provide the funds pursuant to Article 6, such failure of performance on the part of Contractor shall not be deemed a default on the part of Contractor and shall not give rise to any right of termination, damages, or any other remedy against Contractor, unless the failure to provide the funds is due to the occurrence of a breach of this Agreement by Contractor or the gross negligence, willful misconduct or fraud by Contractor.
6.6 Reports to City. Contractor will deliver, or will cause to be delivered, to City the following forecasts and statements:
(a) within twenty (20) days after the end of each calendar month, an update to any approved plans and/or budgets with monthly and year -to-date financial statemen ts which shall include a balance sheet, a profit and loss statement showing the results of operation of the Facility for such month and for the year to date; and
(b) within sixty (60) days after the end of each Operating Year (as defined herein), financial statements, including a balance sheet, a profit and loss statement and actual versus budget comparison showing the results of operation of the Facility for such year (it being understood and agreed that such annual statement will reflect the annual Bas e Management Fee paid to Contractor). If requested by City, and at City ’s expense, the financial statements shall be accompanied by an opinion rendered by an independent certified public accounting firm. (c) at least sixty (60) days in advance of each Operating Year (except the first Operating Year), an estimated profit and loss statement and an estimated cash flow projection for the ensuring Operating Year.
(d) upon reasonable request made by City, Con tractor shall provide inventory list of equipment with corresponding hours of use.
6.7 Contractor Accounting Software; Other Personal Property Owned by Contractor. The parties acknowledge and understand that the accounting software used at the Facility is owned by Contractor, and City shall have no rights or interests in such software. Upon the expiration or earlier termination of this Agreement, the accounting software and other personal property located at the Facility owned by Contractor shall be removed from the Facility by Contractor; provided, however, the financial data of and related to the Facility shall remain the property of City.
6.8 Payroll. The parties acknowledge and agree that a payroll processing company will be processing the payroll for the Facility employees. Prior to the date of a payroll payment, Contractor will be notified by the payroll processing company of the amount of the pay roll payment. On the date of the payroll payment, the payroll processing company will automatically withdraw the amount of the payroll payment from the Operating Account and deposit such amount in a central payroll account on which payroll checks will be drawn.
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6.9 Accounting Firm. Contractor shall, if requested by City and at City ’s expense, hire an independent certified public accounting firm selected by City to audit the financial statements required under this Agreement. Contractor shall train the accounting firm with respect to the use and application of Contractor’s accounting software at the Facility, and Contractor shall supervise the work of the accounting firm. All fees and charges of the accounting firm shall be an expense of the Facility payable from the Operating Account.
ARTICLE 7 – MANAGEMENT – ADMINISTRATION - PERFORMANCE
7.1 GENERAL MANAGER. Contractor shall designate a General Manager, who shall coordinate the Services. This General Manager shall be available to City at all reasonable times during the Term of this Agreement. It is expressly understood that the experience, knowledge, capability, and reputation of the General Manager is a substantial inducement for City to enter into this Agreement. Therefore, the General Manager shall be responsible during the Term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the provision of Services hereunder.
7.2 ADMINISTRATION. The following employees of City shall be authorized to take the following actions pursuant to this Agreement:
(a) The Director of Parks, Recreation, and Community Services Agency shall be authorized to take any and all actions on behalf of City set forth herein, including, but not limited to Budget approval and termination of Services in accordance with the terms of Section 8 of this Agreement (Termination Rights).
(b) The City Manager or their designee is authorized to take those specific actions set forth herein and to review and approve all Services performed by Contractor under this Agreement. The City Manager or their designee shall be authorized to approve Extra Work, change prices or billing rates, or terminate Services under this Agreement.
7.3 PERFORMANCE
7.3.1 Standard of Services. Contractor and his entire staff shall provide all of its services in a professional and workmanlike manner and shall conduct themselves whenever on City’s property such that they shall, at all times, be able to deal effectively and properly with the golfing public as managers of a public facility. All staff shall wear uniforms in a manner approved by City at all times with name tags. All staff shall complete training as prescribed by the City Manager or their designee upon hiring. The quality and range of the products and services offered must be approved by City.
7.3.2 Presence of General Manager. Contractor’s General Manager is expected to be on site at the Facility during the days and hours normally expected of a working General Manager attending diligently to his duties and responsibilities personally. At such times as the General Manager is not on site, the General Manager shall specifically designate a Manager o n Duty and shall provide, from time to time, City with the names of those employees qualified for
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this position. One of the so-named parties shall be on duty at all times that the General Manager is absent.
7.3.3 Professional Standards. As a material ind ucement to City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such stat us and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first -class firms performing work under similar circumstances.
7.3.4 Contract Administrators for Facility. Contractor is responsible for keeping the City Manager or their designee informed of on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired. Contractor agrees to work closely and cooperate fully with the City Manager or their designee and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Contractor at the Facility.
7.3.5 Debris. Contractor shall keep City ’s property free from undue accumulation of waste and rubbish caused by Contractor’s performance of the Services, and Contractor shall remove all debris resulting from the work on City’s property at the end of each day’s work. Contractor shall limit its storage of materials and equipment on City ’s property to areas designated by City.
7.3.6 Familiarity with Work. By executing this Agreement, Contractor represents and warrants that Contractor: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by City, Contractor shall immediately inform City of such fact and shall not perform any Extra Work without the approval of the City Manager or their designee and written amendment of this Agreement.
7.3.7 City Ownership of Equipment. Contractor acknowledges that the City owns all furniture, fixtures, and equipment (“Equipment”). Contractor agrees to maintain, repair or cause to be repaired all of City ’s equipment and furnishings, and to maintain such Equipment in good condition consistent with manufacturer recommendations and industry standards.
Contractor will obtain City ’s prior written consent for any modifications to the type, location, quality, replacement, or disposal of all City -owned Equipment or furnishings. Contractor shall provide the City with annual inventory list of all City-owned Equipment, including serial numbers, estimated remaining useful life, and hours of use, if applicable. Contractor shall keep , in its ordinary course of business, detailed maintenance logs for all of City’s equipment. City shall have the right to audit all such maintenance logs on a quarterly basis, without prior notice.
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If any piece of City owned equipment is damaged and/or rendered a total loss through the negligence or willful misconduct of Contractor, its agents, employees, subcontractors, or its assigns, then Contractor shall be responsible for 100% of the repair costs (parts an d labor) or replacement costs for any such City owned equipment.
7.3.8 Alcoholic Beverages. Contractor is not restricted by this Agreement as to the selection of brands of alcoholic beverages to be sold at Facility. Contractor expressly agrees to observe and comply with all federal, state, and city laws and ordinances and with all rules promulgated by City with respect to alcohol sales at the Facility and to maintain in effect all licenses and permits required for sale of alcoh olic beverages at Contractor’s sole expense. The current contractor Riverview Golf LLC will relinquish the existing on-sale general liquor license issued by the State of California to Contractor and in Contractor’s name permitting the sale of alcoholic beverages (including beer, wine and liquor) at the Facility at no expense, except for transfer fees to be paid by Contractor as an Operating Expense. Contractor, as City’s agent, shall be solely responsible for the alcoholic beverage sales at the Facility. As an Operating Expense of the Facility, Contractor shall maintain in its name or in the name of an Affiliate (and City shall reasonably cooperate with Contractor in maintaining) the liquor license(s) in good standing, pay all required fees in connection therewith, and otherwise ensure that the proper right and permission to sell alcoholic beverages at the Facility. Contractor agrees that, in the event Contractor is succeeded by another contractor after termination of this Agreement, Contractor shall, without charge to City, relinquish said license at no expense to such successor, except for transfer fees to be paid by the successor. From and after the termination date and continuing until the date of transition, Contractor shall cooperate with City in City’s efforts to obtain its own liquor license(s) (or a transfer of Contractor’s liquor licenses) to serve alcoholic beverages at the Facility.
7.3.9 Independent Contractor. Except as expressly provided herein, City, nor any of its employees, shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein. Except as expressly provided herein, City shal l have no voice in the selection, discharge, supervision or control of Contractor’s employees, servants, representatives, or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an i ndependent contractor of City and shall remain at all times to City a wholly independent contractor with only such obligations as are c onsistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise a joint venturer or a member of any joint enterprise with Contractor. In consideration for the compensation paid to Contractor by City, Contractor agrees that City shall not be obligated to provide, and instead agrees that Contractor shall provide on City ’s behalf, any benefits, including, but not limited to, workers' compensation , disability, retirement, life, unemployment, health or any other benefit and Contractor agrees that it shall not sue or file a claim, petition, or application therefor against City or any of its officers, employees, agents, volunteers, representatives or sureties.
7.3.10 Public Records . Any and all written information created, submitted to, and/or obtained by Contractor from City or any other person or entity having to do with or related
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to this Agreement and/or the Facility, either pursuant to this Agreement or othe rwise, may be subject to disclosure pursuant to the California Public Records Act (Government Code § 6250 et seq.) as now in force or hereafter amended, or any act in substitution thereof, or otherwise made available to the public. Contractor hereby agrees to notify City within 10 days of any claim that a requested records is not a public record or that the same is a trade secret, or confidential, or not subject to inspection by the public.
ARTICLE 8 - TERMINATION RIGHTS
8.1 Termination by City. City shall have the right to terminate this Agreement upon the occurrence of any one of the following events:
(a) Contractor fails to keep, observe or perform any material covenant, agreement, term or provision of this Agreement to be kept, observed or performed by Contractor including, without limitation, Contractor’s failure to maintain, market, and promote the Facility in the manner required by this Agreement, and such default continues for a period of thirty (30) days after written notice of such default by City to Contractor; or (b) Contractor’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); (v) suffering or permitting to continue unstayed and in effect for thirty (30) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Contractor’s assets or of Contractor’s interests hereunder; or (vi) is formally charged with , or is convicted of, any criminal act or commits any act of fraud. (c) City’s right to terminate this Agreement pursuant to this Section 8.1 shall be exercised upon thirty (30) days’ additional written notice to Contractor given at any time after the applicable grace period has expired. City ’s termination notice shall specify the effective date of such termination, which date shall not be more than sixty (60) days after the date of City ’s termination notice.
(d) Should the Facility operate at a negative Net Operating Income for two (2) or more consecutive Operating Years, City many terminate this Agreement upon written notice of such termination specifying the effective date of such termination, which shall not be less than sixty (60) days after the date of any such termination notice. (e) Notwithstanding anything else herein to the contrary, the parties agree that should this Agreement be terminated pursuant to Section 5.6 (City Council Appropriation), City must provide Contractor with written notice of such termination specifying the effective date of such termination, which shall not be less than ninety (90) days after the date of any such termination notice, and certifying that no golf course operation or activities will be cond ucted at the Facility for at least six (6) months after any such termination.
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(f) In the event City and District are unsuccessful in executing the operationally necessary lease agreement referenced in the recitals of this Agreement, City may terminate th is Agreement pursuant to the procedures set forth in this section. Contractor shall be compensated for any and all services rendered prior to such termination date at its monthly rate set forth in Article 5.
8.2 Termination by Contractor. Contractor shall have the right to terminate this Agreement upon the occurrence of any one of the following events:
(a) City fails to provide funds to be deposited in the Operating Account in accordance with Article 6 of this Agreement, and such failure shall continue for a period of thirty (30) days after written notice by Contractor requesting that such funds be so provided; or (b) City fails to keep, observe, or perform any other material covenant, agreement, term, or provision of this Agreement to be kept, observed or performed by City, and such default continues for a period of thirty (30) days after notice of such default by Contractor to City; or
(i) City applies for or consents to the appointment of a receiver, trustee or liquidator of City or of all or a substantial part of its assets;
(ii) City files a voluntary petition in bankruptcy or commences a proceeding seeking reorganization, liquidation, or an arrangement with creditors;
(iii) City files an answer admitting the material allegations of a bankruptcy petition, reorganization proceeding, or insolvency proceeding filed against City;
(iv) City admits in writing its inability to pay its debts as they come due;
(v) City makes a general assignment for the benefit of creditors; or
(vi) an order, judgment or decree is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating City a bankrupt or insolvent or approving a petition seeking reorganization of City or appointing a receiver, trustee or liquida tor of City or of all or a substantial part of the assets of City, and such order, judgment or decree continues unstayed and in effect for any period of sixty (60) consecutive days;
Contractor’s right to terminate this Agreement pursuant to this Section shall be exercised upon written notice to City given at any time after the applicable grace period has expired.
Contractor’s termination notice shall specify the effective date of such termination . which date shall not be less than thirty (30) days or mor e than sixty (60) days after the date of Contractor’s termination notice.
8.3 Curing Defaults. Any default by Contractor or City under the provisions of Article 8, as the case may be, which is susceptible of being cured shall not constitute a basis for termination of this Agreement if the nature of such default shall not permit it to be cured within the grace period
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allotted; provided that within such grace period the alleged party in default shall have given notice of its intent to cure, has commenced t o cure such default, and is proceeding to complete the cure in good faith and with reasonable diligence.
8.4 Effect of Termination. In the event the defaulting party fails to cure any default of this Agreement within the applicable cure period, the other party may terminate this Agreement upon ten (10) days’ written notice to the defaulting party (unless the default is stated to be not curable, in which case no such prior written notice shall be required. If City terminates this Agreement pursuant to this Section or pursuant to any other provision of this Agreement, or if this Agreement terminates by its terms, City shall have the following rights:
• to take sole possession of the Operating Bank Account; • to take sole possession of all Facilities, including all equipment and materials;
• to take assignment of any licenses, leases, contracts and other agreements; • to pursue any and all other appropriate civil and criminal remedies; • to collect from Contractor any and all monies owing City under this Agreement through the date of termination;
• to take any and all other reasonable actions to facilitate the transition of management of the Golf Course from Contractor to City or City’s designee; and • Termination by the City pursuant to this section shall in no way reliev e Contractor’s obligation to defend and indemnify the City, as set forth in section Article 4.
If Contractor terminates this Agreement pursuant to this Section, Contractor shall have the right to collect from City any and all monies owing Contractor under this Agreement.
Regardless of who terminates this Agreement, upon any such termination Contractor agrees to reasonably cooperate, but without material cost to Contractor, with City in connection with any all of the foregoing termination rights and also the termination procedures set forth in Article 8 in order to ensure a smooth management transition.
Upon termination of this Agreement:
• Contractor shall deliver to City all records and information related to tournaments, banquets and other events booked at the Golf Course for the Contract Transition Period or any time thereafter.
• Contractor shall deliver to City current copies of all contracts, permits and licenses affecting Golf Course operations, including without limitation, leases for golf carts and other Golf Course equipment.
• All real and personal property that is currently located at the Golf Course, together with any real or personal property purchased or leased in accordance with the Direct Cost Budget or otherwise with City funds is and shall rem ain the property of City. Contractor shall transfer possession of the Golf Course, Facilities, Furnishings and Equipment, supplies, software, databases, books, records and materials purchased, prepared or maintained under this Agreement to City or as City shall direct.
• Contractor shall transfer all keys, convey all alarm codes and vacate the Golf Course.
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• Contractor shall assign to City and City shall assume Contractor’s obligations and shall defend and indemnify Contractor for obligations arising or accruing after such assumption under any loans and leases incurred or entered into by Contractor with respect to Furnishings and Equipment or supplies then in use at the Golf Course, provided that the following conditions are met unless waived by City: (i) Contractor shall have delivered to City written documentation acceptable to CITY showing that Contractor has fully performed its obligations under such loans and leases through the date City assumes such obligations, and (ii) with respect to any agreements in excess of one year or whose term extended beyond the expiration date of this Agreement, City shall have given its written approval to the agreement. • Contractor shall cooperate with City to ensure that City receives the benefit of its termination rights set forth in Article 8.
8.5 Remedies Cumulative. Neither the right of termination, nor the right to sue for damages, nor any other remedy available to a party under this Agreement shall be exclusive of any other remedy given under this Agreement or now or hereafter existing at law or in equity.
In the event of Contractor’s default as described in Section 8.1, if Contractor fails to cure the default by the date specified, City may elect to undertake the work that Contractor has failed to do or any work necessary or appropriate to diligently maintain the G olf Course. Should City elect to undertake such work, it shall serve Contractor written notice of its intent to enter the Premises and the exact nature of the work or correction it intends to perform. Contractor may void the notice by performing the work set forth in the City’s notice and receiving City approval of said work. The performance of the foregoing work by City shall be at the sole expense of the Contractor and shall not be include as a Direct Cost.
If City undertakes work pursuant to these proce dures, City shall make a demand upon Contractor for payment of its costs. If Contractor failed to pay the costs incurred by City within thirty (30) days of the date the demand is made, City may bring legal action to collect the sums due and/or may deduct s uch costs from the Fixed Management Fee and Incentive Management Fee otherwise payable to Contractor. If legal action is necessary or appropriate to collect the amounts expended by City, Contractor shall pay City’s attorney's fees and costs, court costs, and staff costs together from the date which is thirty (30) days of the date the demand is made.
8.6 Indemnification re Future Business . City shall indemnify and hold harmless Contractor and its officers, directors, and employees from all costs, expenses , claims, damages, and liabilities arising or resulting from the failure of City following the expiration or earlier termination (for whatever cause) of this Agreement to provide any of the services contracted for under this Agreement (or contracted for pr ior to the Commencement Date) relating to the management and operation of the Facility, which services are to be provided after the expiration or termination of this Agreement, including without limitation tournaments, banquets, meetings, and other group functions to be held at the Facility.
ARTICLE 9 - TITLE MATTERS; ASSIGNMENT; SUBLETTING
9.1 Title to Facility. City covenants that, subject to the terms and conditions of this Article 9, throughout the term of this Agreement it will maintain full ownership interest in the
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portions of the Facility owned by the City and will maintain a full leasehold interest in the portions of the Facility owned by the District, and good title to the Furnishings and Equipment and all other personal property necessary for the operation and maintenance of the Facility.
9.2 Assignment/Subcontracting. . Contractor acknowledges that City is entering into this Agreement in reliance on the unique skill and experience of Contractor and its employees.
Contractor shall not subcontract or assign all or any part of its right or obligations under this Agreement, unless approved in writing by the Parks Director. Any change in the control of Contractor, including, without limitation, any transfer or acquisition of a controlling percentage of Contractor’s equity or stock, shall constitute an assignment for purposes of this Agreement.
9.3 Prohibited Assignments. The Parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, and competence of Contractor. Except as provided in this Section, neither party shall assign this Agreement without the prior written consent of the other party. Any such purported assignment, transfer, encumbrance, pledge, sub-use, or permission given without such consent shall be void as to City. Said consent shall not be unreasonably withheld, conditioned, or delayed. It is understood and agreed that any consent granted by a party to any such assignment shall not be deemed a waiver of any consent required under this Section as to any future assignment.
9.3.1 Permitted Assignment by Contractor. Contractor shall have the right, without the consent of City, to assign this Agreement to any Affiliate of Contractor or in connection with the sale of all or a substantial portion of Contractor’s assets provided that the key personnel at the Facility remains substantially intact.
9.3.2 Permitted Assignment by City. In connection with the sale or transfer of the Facility by City, City shall have the right, without the consent of Contractor, to assign this Agreement provided that the purchaser expressly assumes all of City’s obligations hereunder.
9.3.3 Remedies. Any assignment by either party of this Agreement in violation of the provisions of this Section shall be null and void and shall result in a termination of this Agreement. In addition to any other remedies available to the parties, the provisions of this Section
9.2 shall be enforceable by injunctive proceeding or by a suit for specific performance.
9.4 Successors and Assigns. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors, and assigns.
9.5 Subcontracting. Except for those subcontractors set forth in the Scope of Services, if any, Contractor shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the City Manager or their designee .
Contractor shall be fully responsible to City for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and City pursuant to this Agreement.
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ARTICLE 10 - DAMAGE OR DESTRUCTION; EMINENT DOMAIN
10.1 Damage or Destruction . Should the Facility be destroyed or substantially damaged by fire, flood or other casualty, City, by written notice to Contractor given within sixty (60) days following the occurrence of such event, shall have the right to terminate this Agreement, and in such event neither party shall have any further obligation to the other party under this Agreement, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination. For the purpose of this Section, the Facility shall be deemed to have been substantially damaged if, in the reasonable opinion of City, full and productive economic use of the Facility cannot be made and the estimated length of time required to restore the Facility substantially to its condition and character just prior to the occurrence of such casualty shall be in excess of six (6) months. If this Agreement is not terminated in the event of damage to the Facility because the damage does no t amount to substantial damage as described above, then City shall proceed with all due diligence to commence and complete restoration of the Facility to its condition and character just prior to the occurrence of such casualty.
ARTICLE 11 - CAPITAL IMPROVEMENTS
11.1 Capital Improvements . Any Major Capital Improvement performed by independent contractors in excess of $ 25,000 shall be subject to California prevailing wage law, codified at California Labor Code Section 1782, et seq., as it may be amended from time to time.
Any Major Capital Improvement project in excess of $25,000 shall be administered by City in accordance with City ’s procurement ordinances, City’s processes and procedures, and all applicable local, state, and/or federal laws. Contractor shall have no authority to enter into separate agreements with independent contractors for Major Capital Improvements (regardless of project cost). However, in the event City desires Contractor to become involved in any capacity in a Major Capital Improvement project (regardless of project cost), City shall notify Contractor in writing of its intent to utilize Contractor’s services as set forth in Section 3.6 of this Agreement.
Any non-Major Capital Improvement performed by independent contractors in excess of $15,000 shall be subject to California prevailing wage law, codified at California Labor Code Section 1782, et seq ., as it may be amended from time to time. Any non -Major Capital Improvement project in excess of $15,000 shall be administered by City in accordance with City’s procurement ordinances, City’s processes and procedures, and all applicable local, state, and/or federal state laws. Contractor shall have no authority to enter into separate agreements with independent contractors fo r non -Major Capital Improvements (regardless of project cost).
However, in the event City desires Contractor to become involved in any capacity in a non-Major Capital Improvement project (regardless of project cost), City shall notify Contractor in writing of its intent to utilize Contractor’s services as set forth in Section 3.6 of this Agreement.
Notwithstanding the above, C ontractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Cod e of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the services being performed are part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Contractor agrees to fully comply with such applicable
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Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
ARTICLE 12 - GENERAL PROVISIONS
12.1 Purchases by Contractor. Contractor shall use reasonable efforts to obtain the optimum combination of quality, price, and terms for all purchases for the Facility utilizing its extensive contacts and experience in purchasing golf course related items. Contractor shall not be entitled to an y additional compensation for this undertaking other than as set forth herein. In connection with any purchases made by Contractor or an Affiliate of Contractor for the account of City, it is understood that Contractor or such Affiliate may perform services as a representative of the manufacturer to secure the benefits of lower costs, and that any resulting savings shall be passed on to City, including representatives ’ fees. In addition, all trade discounts, rebates, and refunds pertaining directly to purc hases for the Facility (but excluding refunds and rebates received by Contractor in connection with purchasing or leasing related to all Other Contractor Facilities) shall accrue to the benefit of City.
12.2 Purchases from Contractor Affiliates. If any purchases of goods or services for the Facility are made from or through an Affiliate of Contractor, the charges to the Facility for such goods or services shall be on the same terms as those made to Other Contractor Facilities, and such charges shall not exceed the market prices for such goods and services. Contractor shall disclose to City the prices paid by its Affiliates for any such goods and services.
12.3 Notices. All notices and communications pursuant to this Agreement shall be addressed as set forth below or as either party may hereafter designate by written notice and may be delivered by any one of the following methods: (a) by personal delivery; (b) by deposit with the United States Postal Service as certified or registered mail, return r eceipt requested, postage prepaid to the addresses stated below; or (c) by deposit with an overnight express delivery service.
Such notices and communications shall be deemed effective when actually delivered.
CITY:
City Clerk
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, CA 92701
Parks and Recreation Department
City of Santa Ana
20 Civic Center Plaza
Santa Ana. CA 92701
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CONTRACTOR:
Santa Ana Golf, LLC
CourseCo, Inc.
5341 Old Redwood Hwy, Suite 201
Petaluma, CA 94952
Attention: Michael Sharp
(707) 763-0335
Each party shall have the right to designate a different address within the United States of America by the giving of notice in conformity.
12.4 Attachments. This Agreement includes the following, which are attached hereto and made a part hereof:
Exhibit A – Facility Map
Exhibit B – Standards of Maintenance and Other Responsibilities of Contractor Exhibit C – Insurance Requirements
12.5 No Partnership or Joint Venture. Nothing contained in this Agreement shall be construed to be or create a partnership or joint venture between City and its successors and assigns, on the one part, and Contractor and its successors and assigns, on the other part.
12.6 Modification and Changes . This Agreement may be amended or modified in writing approved as to fo rm by the City Attorney and any such amendment shall be properly executed by both parties.
12.7 Compliance with all Laws . In performing the Services, Contractor shall, as an Operating Expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Contractor shall conform to applicable local, county, state and federal laws, rules, regulations, and permit requirements and be subject to approval of the City Manager or their designee . Before providing any services under this Agreement, Contractor shall, as an Operating Expense of the Facility, obtain and maintain any certificates, licenses and permits which may be required to permit Contractor to do business in the City, including the City of Santa Ana. For clarity and the avoidance of doubt, nothing in this section shall require Contractor to expend its own funds to obtain all necessary licenses, permits and certificates required for the operation of the Facility and the business conducted at the Facility, the costs of which will be an Operating Expense of the Facility.
12.8 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits or any other attachments attached hereto, the terms o f this Agreement shall govern.
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12.9 Conflicts of Interest . The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the “Act”), which: (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement; and (2) prohibits such persons from m aking, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnity and hold harmless City for any and claims for damages resulti ng from Contractor's violation of this Section.
12.10 Understandings and Agreements . This Agreement and the Exhibits hereto, constitutes all of the understandings and agreements of whatever nature or kind existing between the parties with respect to Contractor’s management and operation of the Facility. No agreement, statement or promises made by either Contractor or City which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any su ch matter shall be effective for any purpose.
12.11 Interpretation. Each Party acknowledges that he/she/it has had the benefit of advice of competent legal counsel with respect to its decision to enter into this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
12.12 Headings. The Article, Section and Subsection headings contained in this Agreement are for convenience and reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement.
12.13 Consents. Each party agrees that it will not unreasonably withhold any consent or approval requested by the other party pursuant to the terms of the Agreement, and that any such consent or approval shall not be unreasonably delayed or qualified. Similarly, each party agrees that any provision of this Agreement which permits such party to make requests of the other party shall not be construed to permit the making of unreasonable requests.
12.14 Survival of Covenants. Any covenant, term, or provision of this Agreement which in order to be effective must survive the termination of this Agreement shall survive any such termination.
12.15 Third Parties. None of the obligations under this Agreement of either party shall run to or be enforceable by any party other than the party to this Agreement or by a party deriving rights under this Agreement as a result of an assignment permitted pursuant to the terms of this Agreement.
12.16 Waivers. No failure by Contractor or City to insist upon the strict performance of any covenant, agreement, term, or condition of this Agreement or to exercise any right or remedy consequent upon the breach of this Agreement shall constitute a waiver of any such breach or any subsequent breach of the same covenant, agreement, term or condition. No covenant, agreement, term or condition of this Agreement and no breach of this Agreement shall be waived, altered, or
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modified except by a written instrument. A waiver of any breach of this Agreement shall only affect this Agreement to the exten t of the specific waiver, and all covenants, agreements, terms, and conditions of this Agreement shall continue in full force and effect.
12.17 Applicable Law. This Agreement shall be construed and interpreted in accordance with, and shall be governed by, the laws of the State of California and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
12.18 No Presumption Regarding Drafter. City and Contractor acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between City and Contractor, and that this Agreement reflects their mutual agreement regarding the subject matter of this Agreement. Because of the nature of such negotiations and discussions, it would be inappropriate to deem either City or Contractor to be the drafter of this Agreement, and therefore no presumption for or against the drafter shall be applicable in interpreting or enforcing this Agreement.
12.19 Enforceability of Any Provision. If any term, condition, covenant, or obligation of this Agreement shall be determined to be unenforceable, invalid, or void, such determination shall not affect, impair, invalidate, or render unenforceable any other term, condition, covenant, or obligation of this Agreement , and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
12.20 Remedies Cumulative. The remedies given to City and Contractor herein shall be cumulative and are given without impairing any other rights given City or Contractor by statute or law now existing or hereafter enacted and the exercise of any one (1) remedy by City or Contractor shall not exclude the exercise of any other remedy.
12.21 Discrimination. Contractor agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin, or other prohibited basis in its provisions of Services or hiring of subcontractors or employees. To the extent this Agreement provides that Contractor offers accommodations or services to the public, such accommodations or services shall be offered by Contractor to the public on fair and reasonable terms.
12.22 United States Currency. All amounts payable pursuant to this Agreement shall be paid in lawful money of the United States of America.
12.23 Counterparts. This Agreement and any amendment may be executed in counterparts, and upon all counterparts being so executed each such counterpart shall be considered as an original of this Agreement or any amendment and all counterparts shall be considered together as one agreement.
12.24 Attorneys’ Fees. In the event of a dispute involving the non -performance by a party hereto of its obligations under this Agreement, the prevailing party shall be entitled to reasonable attorneys ’ fees and all other expenses reasonably incurred in connection with such dispute, whether or not litigation is commenced, in addition to all other relief to which the party is
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entitled. If the successful party recovers judgment in any legal action or proceeding, the attorneys’ fees and all other expenses of litigation shall be included in and made a part of any such judgment.
12.25 Gender and Number. Whenever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain gender shall be deemed to include either of both of the other genders.
12.26 Further Assurance. City an d Contractor agree that at any time or from time to time after the execution of this Agreement, each shall, upon the request of the other, execute and deliver such further documents and do such further acts and things as such party may reasonably request in order to fully effect the purpose of this Agreement.
12.27 Waiver of Jury Trial . The parties hereby waive trial by jury and any action, proceeding, or counterclaim brought by either of the parties hereto on any matter whatsoever arising out of or in any way connected with this Agreement.
12.28 Authority. Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants th at he or she is duly authorized to e xecute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms.
Contractor shall, at City’s request, deliver a certified copy of its governing board ’s resolution or certificate authorizing or evidencing such execution.
12.29 Effective Date . This Agreement shall be effective on the date on which this Agreement is executed by City (“Effective Date”).
[signatures appear on following page]
EXHIBIT A
Facility Maps
EXHIBIT B
Standards of Maintenance and Other Responsibilities of Contractor
I. Maintenance Responsibilities. Contractor shall undertake the following maintenance responsibilities in connection with its management of the Facility under the terms of this Agreement:
a) Contracts. Enter into such contracts for the furnishing of utilities and maintenance, and other services to the Facility in Contractor ’s name, provided however that (i) any such contract which is for a term greater than twelve (12) months and for an aggregate cost in excess of five thousand dollars ($5,000.00) and is not otherwise approved via the Annual Budget Plan shall be approved in advance by City, and (ii) in the event of a termination of this Agreement for any reason, City or City ’s designee shall assume any such contracts which are then in effect and unexpired at the time of such termination and indemnity and hold harmless Contractor from and against any additional obligations thereunder which may have accrued after termination of this Agreement;
b) Repairs a nd Improvements. Make all repairs, decorations, revisions, alterations, and improvements to the Facility as shall be reasonably necessary for maintenance of the Facility in good and sanitary order, condition and repair;
c) Operating Expenses. Incur such expenses, as Operating Expenses of the Project, as shall be necessary for the operation and maintenance of the Facility to the quality standards contemplated by this Agreement and the Annual Budget Plans, including without limitation incurring lease expenses for Furnishings and Equipment and costs for Operating Inventory; expenses for insurance premiums in accordance with insurance coverage required hereunder, and payment of attorneys’ fees and other costs of legal compliance and/or legal settlement as approved by City’s Contract Administrator in advance; d) Inventory. Maintain a level of Operating Inventory necessary to satisfy the quality standards contemplated by this Agreement and the Annual Budget Plans and to supply the needs of the Facility and its customers;
e) Facilities Maintenance Services. At all times, as a Direct Cost, Contractor shall maintain and operate the Facility, including cafe restrooms, on -course restrooms and cart barn and all other facilities and services offered. Contractor shall keep all fixtures, furnishings and equipment within the facilities clean, neat, safe, and sanitary, in good order and in a manner.
Contractor shall maintain and operate the facilities reasonably in accordance with the highest standards of cleanliness and shall keep clean and free from rubbish. Contractor shall, during the term of this Agreement maintain and keep in good order, condition and
repair the interior nonstructural portions of the facilities, including, but not limited to, the following: the interior surface of exterior walls; all windows, doors, door frames, and door closures; all plate glass, storefronts and showcases; all carpeting and other floor covering; HV AC, all electrical systems, and equipment; the grease trap; and all interior plumbing and sprinkler systems, doors, door locks, plate glass, display windows, window casements, exterior restaurant light fixtures, light bulbs, ballast transformers and electrical panel if any, installed therein. Contractor expressly agrees that the use of roof areas shall be limited to ingress for maintenance purposes only, and that said roof areas shall not be used for storage of inventory or for any other use. All reasonable costs associated with cleaning and maintenance of the facilities in accordance wi th this Agreement shall be Direct Costs.
Contractor agrees to enter into preventative and regular maintenance contracts, with providers approved by the City Representative, for services to include, but not be limited to, pest control, refrigeration, window cleaning, carpet cleaning, hood cleaning, and grease trap. All costs associated with these service contracts shall be Direct Costs. The Contractor shall inspect the perimeter fencing, gates, and netting weekly and make any repairs immediately. The Contractor shall be responsible for opening and closing the gates leading to the golf course.
f) Grounds Maintenance Services. At all times, as a Direct Cost, Contractor shall maintain and operate the Golf Course during the entire term of this agreement. Contractor shall provide grounds maintenance services to the Golf Course as set forth in the Minimum Grounds Maintenance Standards set forth in the attached Exhibit B, including, but not limited to, the obligation to mow, edge, trim, overseed, fertilize, aerate, sod , change cups, service tees, top -dress, raise divots, rake traps, spray, spot irrigate, syringe and renovate turf and shrub areas, as well as to provide weed, disease and pest control, litter control and rubbish removal, parking lot sweeping, tree maintena nce, maintenance of irrigation systems including mainlines, pumps, boosters and controllers, to keep swales in good repair and to provide the necessary and appropriate maintenance of any appurtenant structures and equipment, and to maintain the lakes Contractor shall replace or change any supplies, materials, or procedures used by Contractor that are found reasonably objectionable by the CITY Representative, within 5 days ’ notice after receipt of the CITY Representative's written request for such replacement or change. Contractor shall comply with all applicable local, state and federal clean water regulatory requirements, including but not limited to all federal EPA and National Pollutant Discharge Elimination System requirements.
g) Chemical Herbicides and Pesticides. Contractor shall ensure that employees are trained and knowledgeable about best management practices for using fertilizers, herbicides and
pesticides to prevent any Hazardous Materials release and how to handle any such accidental release. Contr actor shall obtain any required federal, state or local pesticide applicator licensing, permits and submit any required reports related to the use of permitted biocides, defoliants, chemical fertilizers, pesticides, herbicides or other agrichemicals.
Contractor to apply for a Restricted Materials Permit from Orange County.
h) Trees and Other Plant Materials. Contractor shall maintain all trees and other plant materials on the Golf Course in a manner equal to or better than other golf courses in California with comparable green fees during the entire term of this agreement. All pruning and removal shall comply with the Santa Ana Municipal Code, with all removals approved by City Representative prior to commencement.
i) Parking Lot Maintenance Services. Contractor shall keep all parking lots on the Facility in a clean and good condition, and shall provide normal (non -capital) parking lot maintenance services. All reasonable costs of such parking lot maintenance will be Direct Costs.
j) Equipment, Supplies and Materials. Contractor shall procure and maintain (as a Direct Cost) all necessary and appropriate equipment, supplies and materials of good quality and in sufficient number to fulfill the maintenance requirements of this Agreement, but expenditures shall not exceed the amounts allocated in the Direct Cost Budget without the prior consent of the CITY Representative. The required equipment, supplies and materials shall include, but not be limited to:
• All equipment necessary and appropriate to operate the Golf Course; • All necessary and appropriate gas, oil, maintenance and operating supplies, and spare and replacement parts for all equipment used at the Golf Course; • All necessary and appropriate topdressing, seed, fertilizers, pesticides, fungicides, insecticides and herbicides for maintenance of the Golf Course and other landscaped areas on the Golf Course and in compliance with Section 3.05; • Parts, supplies and equipment necessary for the repair and maintenance of all Golf Course irrigation systems;
• Tee towels, soa ps, ball washers, putting green cups and flags, benches, trap rakes, tee markers, tee mats, trash receptacles, trash receptacle liners, cleat brushes, distance markers on sprinkler heads and all other pertinent golf course equipment;
• Materials for the installation and maintenance of French drains; • Sand for traps on an as-needed basis; and
• Procurement of all necessary retail and concession inventory and consumable supplies such as janitorial cleaning supplies, paper products, soap, etc.
In the event that C ontractor desires to use City owned equipment it shall lease such equipment from CITY at a nominal fee of $1.00 per year. City will provide said lease to Contractor at the commencement of each year of this Agreement. Existing employees. To the extent reasonably possible, Contract shall offer employment at the Golf Course to all employees employed prior to the effective date of this agreement
k) Driving Range. Contractor shall operate and manage all driving range operations, and procure and maintain all equipm ent and facilities necessary and appropriate to meet the goal set forth in Section 3.1. Driving range balls shall be of high quality and flight limited, and all cracked and worn range balls shall be removed in a timely manner. Driving range mats and teaching areas to be maintained to very high standard and replaced when needed.
l) Solid Waste Management & Recycling. To ensure full compliance with California Senate Bill (SB) 1383 regulations, the facility shall operate in full accordance with the organic waste generator, recycling requirements and food recovery mandates set forth in 14 CCR Division 7, Chapter 12 Short-Lived Climate Pollutants (SB 1383) and Chapter 16 Garage, Trash, and Weeds of the City’s Municipal Code.
Contractor shall be responsible for the proper handling, collection, storage, and segregation of all solid waste, organic waste and recyclable materials generated by the operation of the Golf Course, including but not limited to waste from clubhouse and administrative offices, food and b everage operations, maintenance facilities and restrooms, on -course trash receptacles, special events, tournaments, or outings. Contractor shall ensure that waste is placed in approved containers for collection and is managed in a manner that maintains cleanliness and safety. Contractor shall not dispose of solid waste outside of designated containers nor dispose of hazardous waste except in compliance with applicable law and City guidelines. Contractor shall promptly notify the City of any issues with coll ection, overflow, or missed pickups.
Contractor shall keep City's property free from undue accumulation of waste and rubbish caused by Contractor's performance of the Services, and Contractor shall remove all debris resulting from the work on City's property at the end of each day's work. Contractor shall limit its storage of materials and equipment on City's property to areas designated by City.
City reserves the right to inspect waste handling practices at reasonable times. Contractor shall promptly correct any deficiencies identified by City or a regulatory authority.
II. Other Responsibilities. Contractor shall undertake the following responsibilities in connection with its management of the Facility under the terms of this Agreement:
a) Licenses and Permi ts. Apply for, and use its commercially reasonable best efforts to obtain and maintain, all licenses and permits reasonably required by City (or by applicable Legal Requirements, as defined herein) in connection with the operation and management of the Facility in the Contractor ’s name or in the name of an Affiliate of Contractor; and City agrees to execute any and all applications and such other documents as shall be reasonably required and to otherwise cooperate, in all reasonable respects, with Contractor in the application for, and obtaining and maintenance of, such licenses and permits; and Contractor agrees that it shall maintain a City of Santa Ana business license during the Term of this Agreement;
b) Insurance and Legal Requirements. Use best efforts to do, or cause to be done, all such acts and things in and about the Facility as shall be reasonably necessary to comply with all Insurance requirements and Legal Requirements, and to discharge any lien, encumbrance, or other charge on the Facility; including, with City’s prior written consent, hiring legal representation and paying attorneys ’ fees, as an Operating Expense of the Facility, as necessary to comply with any Legal Requirements and defend the Facility against legal claims and pay all Impositio ns and insurance premiums when due, if City requests in writing that Contractor assume responsibility on City’s behalf for the payment of such Impositions and insurance premiums;
c) Accounting. Maintain a method of accounting in accordance with generally a ccepted accounting principles consistently applied (“GAAP”) which accurately reflects the Gross Revenues and Operating Expenses and disbursements of Contractor in connection with the Facility’s operations.
d) Golf Professional Services. Provide golf starter services; sell and rent golf equipment; sell golf-related clothing and supplies; provide instructional services in the playing of golf; rent golf carts; and operate the driving range.
e) Pro Shop and Merchandise. The Pro Shop shall be open during the normal operating hours of the golf course as provided in the Golf Course Manual. • Inventory. Contractor shall procure and maintain in the Pro Shop such inventory of golf merchandise as reasonably necessary or appropriate to adequately meet public demand and consistent with the goal in Section 3.1.
Contractor shall receive approval from City before increasing inventory levels to $40,000 or over in any given month.
• Mark Down of Merchandise. Merchandise that can reasonably be classified as "stal e" or "unsellable" may be marked down. After six (6) months, if Contractor reasonably determines that any aged merchandise in the Pro Shop cannot be sold or should not be sold because of the reputation or image of the Pro Shop, then Contractor may sell the merchandise to third parties at less than cost and include the payment for the merchandise in the Golf Revenues. Contractor may not sell or transfer Pro Shop merchandise to any entity owned or operated by an affiliate of Contractor without prior written City Representative approval.
f) Golf Instruction. Contractor shall provide for golf instruction by qualified instructors supervised by the Golf Professional. All instructors shall be PGA or LPGA Class A golf professionals or apprentices, unless otherwise app roved by The City Representative. All golf instructors shall be employees of Contractor or independent contractors with agreements directly with the Contractor, unless Contractor proposes an alternative plan that is approved by the City Representative. Contractor shall cause all golf instructors to comply with the rules and regulations consistent with the goal in Section 3.1. It is expected that the Golf Professional and instructors will provide tips and mini-lessons at no cost to golfers as appropriate.
i. Availability. There shall be a PGA or LPGA Class A golf professional or apprentice available on the Premises to answer questions and address customer concerns.
ii. City Recreation Classes. The Contractor shall work in conjunction with the City Representative to provide services for City golf programs at the driving range, putting greens and Course.
iii. Junior Golf Programs. As provided in the Golf Course Manual, City shall encourage and facilitate junior golf programs.
g) Golf Carts. Subject to the Existing Golf Cart L ease (defined below), Contractor shall procure by lease on behalf of City and maintain in good condition power-driven golf carts in sufficient numbers to reasonably meet the public demand. City shall increase or decrease the applicable annual budget line i tems reasonably to account for resulting increased or decreased direct costs. Prior to procuring golf carts, Contractor shall give the City Representative information identifying the type of golf cart, features of golf carts, and proposed lease terms and s hall obtain City Representative approval. The golf cart lease shall provide that it is assignable to City should this Agreement terminate for any reason.
Contractor shall lease golf carts in accordance with the City Representative's approval.
Contractor ma y prohibit the use of golf carts on the Golf Course whenever weather conditions expose the user to danger or the Golf Course to damage. Contractor shall employ an on-site mechanic who is able to repair and maintain golf carts.
If any golf cart is damaged and/or rendered a total loss through the negligence or willful misconduct of Contractor, its agents, employees, subcontractors, or its assigns, then Contractor shall be responsible for 100% of the repair costs (parts and labor) or replacement costs for any such golf cart.
h) Special Events. Contractor shall use reasonable efforts to obtain and maintain appropriate exposure for and usage of the Golf Course, including without limitation, as appropriate, conducting golf tournaments, clinics, exhibitions and other special events. Contractor will hold a minimum of three (3) community events annually provided at no cost to the public.
i) Technology Systems. Contractor, as a Direct Cost, shall procure and maintain telephones, wiring, computers, software, dat a circuits, voice circuits, Internet circuits, security cameras, and all equipment necessary and appropriate to operate and support telephone communications to and within the Golf Course, automated tee sheet and starter functions, Point-of-Sale for all Pro Shop operations, Social Media and a website which provides public, on-line access to golf reservations. Contractor shall use such systems to market, record all Golf Course and Pro Shop, retain customer and sales transaction data and produce all documents and reports necessary to effectively operate the Golf Course and comply with CITY's reporting and auditing requirements. Technology systems shall satisfy CITY's and other government requirements for security and internal controls, including but not limited to, security of credit card and other customer data.
j) Security of Data. Contractor shall notify CITY immediately upon any known or suspected loss, theft or disclosure of CITY data, including but not limited to loss of customer personal or credit data.
k) Golf Course Manual. Contractor shall establish and maintain a Golf Course Manual that establishes expectations, uniform rules, procedures and operating policies for the City's Municipal Golf Course and Facility. The Golf Course Manual will establish requirements for the maintenance of the Golf Course in alignment with City standards. The Contractor shall operate the golf operations in accordance with the requirements of the Golf Course Manual. The Contractor shall maintain the Golf Course in accordance wi th the requirements of the Maintenance Standards and other requirements outlined in the Golf Course Manual. Contractor shall submit to the City on an annual basis at least sixty (60) days in advance of each Operating Year an updated Golf Course Manual (ex cept for the first Operating Year for which the initial Golf Course Manual shall be submitted thirty (30) days prior to the Commencement Date). The initial Golf Course Manual and all subsequent Golf Course Manuals shall be subject to City’s final approval.
EXHIBIT C
Insurance Requirements
Insurance Requirements
Contractor shall procure and maintain for the duration of the agreement, the following insurance coverages:
MINIMUM SCOPE AND LIMIT OF INSURANCE
Contractor shall maintain limits of insurance coverage in the following minimum amounts and shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence and $10,000,000 aggregate.
2. Liquor Liability (LL): with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury and property damage arising from selling, serving, distributing, storing, or furnishing of any alcoholic beverage by Licensee or any of Licensee’s employees, representatives, agents or subcontractors under this agreement
3. Automobile Liability (AL): Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with combined single limits of $2,000,000. Primary and umbrella/excess policies can be combined to meet required policy limit.
4. Workers’ Compensation (WC): as required by the State of California, with statutory limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident, per employee, per policy for bodily injury or disease. This requirement can be waived if Contractor has no employees.
5. Pollution Legal Liability (PLL). With limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
6. Commercial Crime Liability Insurance: which includes, without limitation, a blanket bond for all employee dishonesty in the amount of $1,000,000 per occurrence or claim:
coverage for theft, forgery or alteration, funds transfer fraud, safe burglary, counterfeit paper currency, disappearance and destruction of monies and securities in or on the Facility Premises or outside the Facility Premises in an amount no less than $35,000; and depositor’s forgery in the amount of $250.000.
7. If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. CGL and AL policies: City of Santa Ana, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds with respect
to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, equipment, and personnel furnished in connection with such work or operations.
2. CGL, AL, and WC policies: Insurance company(ies) agrees to waive all rights of subrogation against City, its City Council, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by Contractor for City.
3. All required insurance policies: For any claims related to this contract, Contractor’s insurance coverage shall be primary and any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it.
4. All required insurance policies: A severability of interest provision must apply for all the additional insureds, ensuring that Contractor’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer’s limits of liability.
5. Each insurance policy required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non-renewed by the carrier, or materially changed except after thirty (30) days prior written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment.
6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: (Name of Department Staff Responsible for Agreement), Address of Department Responsible for Agreement, M-XX, Santa Ana, CA 92701. The name and location of event should be included in the Description of Operations section of each certificate.
Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City. City may require Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City.
Verification of Coverage. Contractor shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Entity before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Contractor’s obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Claims Made Policies. If any of the required policies provide coverage on a claims-made basis:
1. The retroactive date must be shown and must be before the date of the contract or the beginning of work.
2. Insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, Contractor must purchase “extended reporting” coverage for a minimum of three (3) years after completion of work.
Subcontractors. Contractor shall require and verify that all sub-contractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from sub-contractors.
Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.