Agreement with BJG Glendale
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75781 characters
C- 3569
OFFICIAL
RECORDS
OF
MARICOPA
COUNTY
RECORDER
HELEN
PURCELL
WHEN RECORDED, PLEASE RETURN TO:
97- 0277560
04/
28/
97
12: 03
CHRISTINA
3
OF
3
City Clerk
City of Glendale
5850 West Glendale Avenue
Glendale, AZ 85301
LEASE AGREEMENT
FOR DEVELOPMENT
AND
OPERATION
OF PUBLIC
GOLF COURSE
This
Lease
Agreement ( this " Agreement")
is
executed
to
be
effective
the
22nd day of
April , 1997, between the City of Glendale, an Arizona municipal corporation ( the
City") and Par Golf, L. L. C., an Arizona limited liability company("
Lessee").
WHEREAS, the City is the owner of seven adjacent parcels of real property located near
87th Avenue and Maryland Avenue in the City, which are more particularly
described in
Exhibits A- G attached
hereto. ( Hereinafter, the five parcels described in Exhibits A, C, E,
F and G will be referred to collectively as the " Property" and the two parcels described in
Exhibits
B and D will be referred to collectively
as the " Right- of-Way"); and
WHEREAS, the Salt River Project ("
S. R. P.") or its customers presently own or operate, or
claim to have the right to own or operate, the following real property or improvements
thereon which affect the use of the Property:
1.
One underground drainage pipe and water delivery gate located near the middle
of the Property;
2. One dirt- lined, crosscut lateral used for irrigation and/ or drainage purposes;
3.
One dirt- lined tailwater ditch used for drainage and/ or irrigation purposes; and
4. Two concrete- lined delivery ditches used for purposes of irrigation
and/ or
drainage.
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EXHIBIT A
xd'
Hereinafter, said drainage pipe, water delivery gate, crosscut lateral, tailwater ditch and
delivery ditches will be referred to collectively
as the " S. R.P. Improvements";
and
WHEREAS, Lessee desires to lease the Property for purposes of constructing and operating
a nine-hole golf course and driving range open to the public; and
WHEREAS, the City is willing to lease the Property to Lessee on the terms and conditions
set forth below.
THEREFORE, in consideration of the premises and the following mutual covenants and
conditions, the parties agree as follows:
1.
LEASE OF THE PROPERTY; RESTRICTIONS.
The City hereby leases the Property to Lessee for its use solely as a nine- hole golf course and
driving range open to the public, to be known as " Desert Mirage Golf Course". In addition,
the City leases a portion of the Right-of-Way to Lessee for its use solely as a part of the
Desert Mirage Golf Course, such property to consist of any portion of the Right- of-Way
which is located to the north of the fence to be constructed on the south of the Desert Mirage
Golf Course
as
a part of the City' s Improvements ( defined below). As
a part of its
operations, Lessee shall, at its own cost, design, construct, maintain and operate such golf
course and driving range and shall offer or provide to the public golf lessons from a qualified
professional, a clubhouse and pro shop, food and beverages, and other services customary
to a nine- hole metropolitan public golf course. Lessee may provide food and beverages from
a snack bar and shall not be required to operate a sit- down restaurant on the Property. Lessee
shall not use any portion of the Property or the Right- of-Way for any purpose other than as
a public golf course and driving range, except to the extent the S. R.P. Improvements may be
used by S. R.P. or S. R.P' s customers for irrigation and drainage purposes and that portions
of the golf course are used for drainage and water retention areas pursuant to Section 6( D).
Lessee shall not change the name of the golf course from Desert Mirage Golf Course without
the written consent of the City. Lessee shall not provide or knowingly allow any alcoholic
beverages on the Property or the Right- of-Way except as allowed by law and in accordance
with a liquor license issued by the State.
2.
TERM.
A. The term of this Agreement shall be for a period of 35 years, commencing on
April
22, 1997
and expiring
on April
21, 2032, unless
sooner
terminated
pursuant
to the provisions
contained
herein.
2
B. The City grants to Lessee options to extend this Agreement for two successive
10- year periods, subject to the same terms and conditions
as are contained in this
Agreement, provided that Lessee is not in default of any of its obligations under
this Agreement at the time of each extension. Lessee may exercise said options
by providing the City with written notice of its intention to do so at least 120
days prior to the expiration of the original term of this Agreement or, if
applicable, the first 10- year extension
period.
3.
RENT.
A. As rent for its right to use the Property, Lessee shall pay, without notice and free
from all claims, deductions or set- offs against the City except for such credits
as may be allowed under Section 27, the following amounts:
1.
From the effective date of this Agreement through December 31, 2003, no
rent shall be due;
2. From January
1, 2004 through December 31, 2008, 3% of Lessee' s Gross
Revenues;
3.
From January
1, 2009 through December 31, 2013, 4% of Lessee' s Gross
Revenues;
4. From January
1, 2014 through the end of this Agreement, including any
option
years, 5% of Lessee' s Gross Revenues.
B. No later than the 20th day of each month, Lessee shall furnish the City with a
written statement stating Lessee' s Gross Revenues for the preceding calendar
month. Such reports shall include such information
as the City deems
reasonably necessary and shall be accompanied by Lessee' s payment in full of
any
rent due for the preceding month based on the percentages
specified in
Section
3( A). No later than 30 days after the end of each calendar year, Lessee
shall furnish the City with an annual statement of Gross Revenues as defined in
Section
3( C), prepared
in accordance
with generally
accepted
accounting
principles, and an audit report on the statement from an independent certified
public accountant.
3
C. For
purposes of this Agreement, the term " Gross Revenues"
shall
mean
all
amounts
actually
received
from all of Lessee' s operations
on or from the
Property, including
all
greens
fees, tournament fees, league fees, cart fees
electric,
gas or pull), driving range fees, club- rental fees, sales of food and
beverages,
and sales from the pro shop ( whether for goods or services), whether
made by Lessee or any of its agents, representatives or affiliates and regardless
of: ( 1)
when or where the orders therefor are received; and ( 2) whether such
sales are paid for with money, by barter or through any other form of property
or
consideration
actually
received by Lessee. For any non-cash sales, the
reasonable value of the consideration received shall be deemed to be the sale
price. The following
shall be excluded
or deducted
from Lessee' s Gross
Revenues:
1.
All transaction privilege taxes, excise taxes or similar taxes collected by
Lessee from its customers;
2. All fees received by Lessee' s qualified golf professionals
for golf lessons,
provided that such fees are deemed to be solely the income of such golf
professionals as between the golf professionals and Lessee and are not
remitted, in whole or in part, by the golf professionals to Lessee;
3.
Receipts from any sale for which Lessee issues a partial or total refund to
the extent of the refund actually made, whether by cash or credit; provided
that Lessee shall not be allowed to claim any exclusion or deduction from
Gross Revenues resulting from any arrangements for a hidden rebate,
kickback or credit given or allowed to any customer;
4. Receipts
attributable
to
discount
coupons, but
Gross
Revenues
shall
include any consideration received for goods and services in excess of the
amounts
of the coupons;
5.
Receipts attributable to exchanges of merchandise, but Gross Revenues
shall include any additional consideration received by Lessee in connection
with exchanges;
6. Non- retail sales of equipment, fixtures and other items of property that are
not part of Lessee' s normal stock in trade;
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7. Deposits made by customers to the extent such deposits are returned to the
customers;
8. Receipts from credit card sales which are attributable to service charges
payable to credit card companies;
9.
Insurance
proceeds.
D. If Lessee fails to pay any rent in full on or before the due date, Lessee shall be
responsible for interest
on the unpaid principal
balance at the rate of 10% per
annum from the due date until payment in full is made.
E. The acceptance by the City of any monies paid by Lessee as percentage rent
pursuant to this Agreement shall not be an admission of the accuracy of Lessee' s
figures or of the sufficiency of the amount of such payment. The City reserves
all of its rights set forth herein to question the accuracy of Lessee' s statements
and the sufficiency of Lessee' s payments.
4.
BOOKS AND RECORDS.
A. At all times during the term of this Agreement and until all claims by the City
for payments hereunder have been fully ascertained and paid, Lessee shall keep,
in
accordance with generally
accepted
accounting
principles, separate
and
accurate records of Lessee' s Gross Revenues, showing in detail all business
transacted
on or from the Property. Lessee shall enter all receipts arising from
such business in regular books of account, and all entries in such records shall
be made at or about the time of the underlying transactions.
B. The City shall have the right to inspect, audit and copy the books and records of
Lessee with respect to Lessee' s operations under this Agreement
at any time
during
normal business hours. Information acquired by the City concerning
Lessee' s financial records shall not be made public except as required by law.
Lessee
shall maintain
all such books and records
at a mutually
agreeable
location
in the
metropolitan
Phoenix
area. Within
the Examination
Period
defined
in Section
4( D), the City may employ, at its sole cost, a certified public
accountant to examine Lessee'
s books and records. If, pursuant to such audit,
a discrepancy
of more than a 2% deficiency exists between the rent reported and
paid to the City and the rent actually due, Lessee shall reimburse the City for the
costs of the City' s audit and any resulting deficiencies within thirty ( 30) days of
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billing by the City. The City' s billing shall be accompanied by a complete copy
of the
auditor' s
report. If the
audit
reveals
an
overpayment
of rent, any
overpayment
shall be deducted from future rents due after a credit memorandum
from the City is issued. If no future rents will be due, the overpayment shall be
promptly refunded to Lessee.
C. Lessee shall provide the City with a written description of Lessee' s cash and
sales record system and shall install such system, including equipment upon
which Lessee
shall record each transaction
made on or from the Property. Each
cash register shall have locking totals and shall be accessible to and subject to
inspection by the City.
D. Records relevant to Lessee' s Gross Revenues for any particular calendar year
shall be kept by Lessee and made available to the City for a period of at least
three (
3)
years
after the
end
of
such
calendar
year. For purposes
of this
Agreement, the term " Examination Period" shall mean the period during which
Lessee is required to keep records pursuant to this subsection.
5.
UTILITIES.
Lessee shall pay before delinquency all charges for all utilities used in its operations on the
Property, including all charges for telephones, water, sewer, gas, electricity and cable
television services.
6.
LESSEE' S IMPROVEMENTS.
A. Lessee shall make no improvements
or modifications
to the Property or the
Right-of-Way without the prior written consent of the City, which consent shall
not
be
unreasonably
withheld
or
delayed. Before
commencing
any
improvements or modifications, Lessee shall submit detailed construction plans
and
specifications
of the
work
as
completed. Prior to the
start of any
construction of improvements or modifications to the Property or Right-of-Way,
Lessee shall secure all applicable building permits and approvals from the City,
which shall not be unreasonably withheld or delayed. Lessee shall furnish any
additional information concerning any proposed improvements or modifications
which the City may reasonably deem necessary.
B. Lessee shall pay all site development
costs and development
impact
fees,
including
water
and
sewer
development
fees, as Lessee' s construction
of
6
Lessee'
s Improvements, as defined below, proceeds. At such time as the golf
course and driving range are open for public play on a permanent basis, the City
shall rebate to Lessee all of Lessee' s building permit fees, inspection fees,
development review fees, plan check fees and development impact fees for the
construction of the golf course, except that the rebates shall not include any
portion of the water and sewer development fees paid in connection with the
development of the Property. Lessee shall bill the City for all fees included in
the fee rebates required by this subsection, and the City' s payment of such fee
rebates shall be due within 30 days after the City receives such billing.
C. Lessee shall, at its own cost, design and construct the following improvements
Lessee'
s Improvements")
on the Property
and the Right- of-Way: A golf
course
comprising
nine
holes
and
lighted driving
range, constructed
in
substantial conformity to the conceptual routing plan contained in Exhibit H
attached hereto, including a paved parking lot for automobiles; a clubhouse
comprising a pro shop, restaurant and/ or snack bar at least 3000 sq. ft in size and
with an appearance consistent with said design plans ( the City acknowledges
that the
clubhouse
may be a modular
structure); any necessary maintenance
buildings
and
structures
for Lessee' s
operations
on the Property; lakes or
retention basins with at least 15 acre feet of storage capacity for drainage and
water retention from properties located to the north of the Property, as are
approved by the City Engineer; and an irrigation system for the golf course and
driving range as is approved by the City.
D. As a part of constructing Lessee' s Improvements, Lessee shall provide for pipe
in Maryland Avenue for S. R.P. water to be delivered to the Property from the
turnout structure east of the intersection of Maryland Avenue and 85th Avenue.
Such construction
shall be deemed to be a part of Lessee' s Improvements,
provided that the City shall reimburse Lessee for the costs of constructing such
pipe at such time as the golf course and driving range are open for public play
on
a permanent basis. Lessee shall bill the City for such costs and provide the
City with such documentation as is reasonably necessary to verify the amount
of such costs. The City' s payment of such costs shall be due within 30 days
after the City receives such billing.
E. All improvements to the Property and the Right- of-Way shall be constructed
pursuant to the plans and specifications which have been approved by the City,
which
approval
shall
not
be
unreasonably
withheld
or
delayed. All
7
improvements and modifications made by Lessee shall be constructed in a good
workmanlike
manner.
F. Prior to the commencement of any construction on the Property or the Right- of-
Way, Lessee shall provide the City with payment and performance bonds in
amounts equal to the full amount of the written construction contract pursuant
to which such construction
is to be done. The payment bond shall be solely for
the protection
of claimants
supplying
labor
or materials
for the required
construction work, and the performance bond shall be solely for the protection
of
the
City, conditioned
upon
the
faithful
performance
of the
required
construction work. Each bond shall include a provision allowing the prevailing
party in a suit on such bond to recover as a part of its judgment such reasonable
attorney' s fees as may be fixed by the court. Each bond shall be executed by a
surety company duly authorized to do business in Arizona and acceptable to the
City. Each bond shall be filed with the City Clerk immediately upon execution
thereof.
G. Lessee shall keep the Property and all improvements thereon ( excluding the
S.R.P. Improvements) free of any mechanic' s or materialmen' s liens or liens of
any kind or nature for any work done, labor performed or materials furnished on
or to the Property. If any such lien is filed, Lessee shall, at its own cost, either:
1) initiate necessary action to remove such lien from the Property within thirty
days of notice thereof, and diligently proceed with such action until the lien is
removed;
or ( 2) provide the City with security that such lien will not be
foreclosed, which security must be acceptable to the City.
H. Lessee shall begin construction of any improvements and modifications to the
Property and the Right-of-Way within a reasonable period oftime following the
approval of the City and the issuance of building permits, if necessary, for the
construction.
Lessee shall diligently pursue construction of the improvements
or modifications
and shall complete construction in accordance with the
schedule for completion
to be agreed upon by the City. Except as set forth in
Section 24 below, all improvements
and modifications
made by Lessee which
become fixtures to the Property or the Right-of-Way shall become the property
of the City, at no cost to the City, upon the expiration or termination of this
Agreement, free of any security interest or claims of any kind from or through
Lessee.
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1.
Lessee shall complete Lessee' s Improvements and open the golf course and
driving range on a permanent basis for public play no later than December 31,
1998. Not-withstanding anything herein to the contrary, however, if Lessee is
delayed in completing Lessee' s Improvements by December 31, 1998 as a result
of circumstances beyond Lessee' s control or the negligence, misconduct or
unreasonable withholding
of consent( s) by the City, Lessee
shall complete
Lessee' s Improvements and open the golf course and driving range for public
play as expeditiously
as possible under the circumstances.
6. 5
MODIFICATIONS
TO S. R.P. IMPROVEMENTS.
A. The parties acknowledge that certain modifications to the S. R.P. Improvements
will be required and/ or may be desired as a part of the construction of the golf
course. The parties further acknowledge
that such modifications
require the
approval of S.R.P., that certain modifications will have to be done by S. R.P. in
order
to
qualify
for
the
use
of
S. R.P. "
aesthetic
funds," and
that
other
modifications
may be done by Lessee as a part of its construction of the golf
course. The parties shall cooperate in good faith in seeking to obtain any
necessary approvals from S. R.P. for any changes to the S.R.P. Improvements
which the City and Lessee deem to be beneficial to the design of the golf course.
B. S. R.P. shall be responsible for piping the crosscut lateral underneath the driving
range on the Property and for constructing a new delivery structure at or near the
west end of the Property. The City shall be responsible for all costs of such
modifications to the S. R.P. Improvements.
C. Except for the piping
specified in Section
6. 5( B), Lessee shall be responsible
for
all costs of relocating the crosscut lateral, if Lessee desires such relocation and
S.R.P. approves ofthe same. The City shall, ifnecessary, cooperate with Lessee
in relocating the crosscut lateral by granting S. R.P. an easement across the
Property for such relocation, provided that the City does not incur any out- of-
pocket costs in granting such easement.
D. All other proposed modifications
to the S. R.P. Improvements
which may affect
the Property are subject to the written approval of the City and Lessee.
9
ibLt
7.
CITY' S IMPROVEMENTS.
A. The City shall, at its own cost, design and construct the following improvements
the " City' s Improvements") on the Right- of-Way and/ or the Property:
1.
A fence at least six ( 6) feet high on a portion of the Right- of-Way on the
south side of the golf course from 85th Avenue to 87th Avenue, excluding
the entry ways to the golf course;
2. A sidewalk on a portion of the Right-of-Way south of the fence required
by Section
7( A)( 1);
3.
Finishing all improvements
to Maryland Avenue in the Right- of-Way.
B. The City will submit to Lessee detailed construction plans and specifications for
the City' s Improvements as completed and shall cooperate with Lessee to ensure
that the City' s Improvements are within the same overall design and engineering
framework
as Lessee'
s Improvements.
The City' s Improvements
shall
be
constructed in a good and workmanlike manner.
C. The City shall diligently pursue construction of the City' s Improvements so that
the City' s Improvements are completed on or before the date on which the golf
course
and driving
range are open to the public. Notwithstanding
anything
herein to the contrary, however, if the City is delayed in completing the City' s
Improvements by the date on which the golf course and driving range are open
to the public as a result of circumstances beyond the City' s control or the
negligence
or
misconduct
of
Lessee, the City shall complete the City' s
Improvements as expeditiously as possible under the circumstances.
8.
PERFORMANCE
BOND.
In addition to any other bond required by this Agreement, Lessee shall, on or before the date
on which the golf course or driving range opens for public play, provide the City with a
performance bond in the amount of$ 25, 000. The performance bond shall be conditioned
upon Lessee' s faithful performance of all of its obligations under this Agreement. The bond
shall include a provision allowing the prevailing party in any litigation or arbitration on such
bond to recover as part of its judgment an award of such party' s reasonable attorney' s fees
incurred in the litigation or arbitration. The bond shall be executed by a surety company duly
authorized to do business in Arizona and acceptable to the City' s Risk Manager.
10
9.
ACCEPTANCE;
MAINTENANCE;
REPAIRS.
A. Lessee acknowledges that it has inspected the Property and, except as expressly
provided
otherwise herein, accepts possession of the same " as is" in its present
condition. Except as may otherwise be specifically provided for herein, the City
shall not be required to maintain or to make any improvements, repairs or
modifications
to
the Property, or
any
improvements
thereon. Under
no
circumstances shall the City have any obligation to repair, maintain or restore
any improvements placed upon the Property by Lessee.
B. The City shall provide Lessee with a current Phase 1 environmental assessment
of the Property and the Right- of-Way and a current archeological
assessment of
the
Property
and
the
Right- of-Way ( hereafter, such
environmental
and
archeological assessments will be referred to collectively as the" Assessments").
The City shall order the Assessments within 15 days of the effective date of this
Agreement and proceed diligently to obtain the Assessments and provide the
same to Lessee. Lessee shall have 15 days from its receipt of the last of the two
Assessments (
the " Assessment Review
Period")
within which to object in
writing to any matters shown on the Assessments and related documents ( the
Assessment Objections"). IfLessee makes any Assessment Objections within
the Assessment Review Period, the City shall attempt in good faith and using
due diligence to remove the Assessment
Objections within 20 days after notice
thereof. If despite such attempt, the Assessment Objections cannot be removed,
Lessee
shall, in its sole discretion, elect to: ( 1) waive in writing the curing of the
Assessment
Objections
which the City could not cure; or ( 2) terminate this
Agreement by written notice to the City, whereupon neither the City nor Lessee
shall have any further liability or obligation to each other under this Agreement.
Lessee' s failure to give either such a written waiver or notice of termination
shall be deemed
an election by Lessee to waive such uncured
Assessment
Objections.
C. Lessee
shall
be
solely
responsible,
at
its
own
cost, for
all
repairs
and
maintenance whatsoever on the Property and shall maintain all improvements
thereon in a good, workmanlike
manner, whether such repair or maintenance
be
ordinary or extraordinary, structural or otherwise. Lessee shall, without limiting
the generality hereof:
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1.
Keep at all times in a clean and orderly condition and appearance, the
Property, all improvements thereon, and all of Lessee' s fixtures, equipment
and personal
property;
2. Be responsible for the maintenance and repair of all utility service lines
placed on the Property and used exclusively by Lessee;
3.
Repair
any damage
to the Property
caused
by Lessee
or its
agents,
employees or invitees;
4. At a minimum, maintain the Property according to the standards set forth
in Exhibit
I attached
hereto.
D. After the completion of the City' s Improvements to the Right- of-Way, Lessee
shall be responsible, at its own cost, for maintaining all landscaped areas on the
portion
of the Right- of-Way leased to Lessee. Lessee
shall
have
no other
maintenance or repair obligations concerning the Right-of-Way. The City shall
be responsible, at its own cost, for all other repairs and maintenance whatsoever
on the Right- of-Way and, except for the landscaped areas on the portion of the
Right- of-Way
leased
to
Lessee, shall
maintain
the Right- of-Way
and all
improvements thereon, including the fence to be constructed by the City, in a
clean, orderly appearance and condition and in a good and workmanlike manner,
whether such repair or maintenance be ordinary or extraordinary, structural or
otherwise.
E. Lessee' s on- site manager shall meet at least monthly with the Parks and
Recreation Director to review the condition of the Property. If the Parks and
Recreation
Director determines
that Lessee
is not maintaining
the Property
according to objective standards for the maintenance of municipal golf courses
in the metropolitan
Phoenix area established
by the Arizona Association of
Greenskeepers, Lessee shall promptly cure any defaults in its maintenance
responsibilities. If Lessee fails to initiate necessary action to maintain, clean,
repair, resurface, replace, rebuild or repaint, within 30 days after written notice
from the City to do any necessary maintenance or repairs, and to diligently
proceed
with
such
action
until
completion, the City may terminate this
Agreement or, at its option, enter the Property, without such entering causing or
constituting a termination of this Agreement or any interference with the
possession of the Property, and repair, replace, rebuild, resurface, repaint or
otherwise maintain any part of the Property or the improvements thereon, and
12
do all things reasonably necessary to accomplish the work required, and all costs
thereof shall
be payable to the City by Lessee on demand. If in the reasonable
opinion ofthe City, Lessee' s failure to perform any such maintenance endangers
the safety of the public, the employees or the property of the City or others, and
the City so states in its notice to Lessee, the City may, in its sole discretion, elect
to perform such maintenance at any time after the giving of such notice, and
Lessee shall pay to the City all costs of such work on demand. If the City or any
of its elected or appointed officials, employees, or agents undertake any work
hereunder, Lessee hereby waives any claims for damages, consequential
or
otherwise, resulting therefrom except for claims for damages arising from the
sole negligence or fault of the City or its employees, agents or contractors.
10.
HOURS OF OPERATION; USE OF FACILITIES.
A. Unless otherwise agreed to in writing by the City and except for closures,
interruptions
or delays resulting from natural disasters, fires, water shortages,
riot, war, the
negligence
or
fault
of the City
or its
employees, agents
or
contractors, or other events or circumstances beyond Lessee' s reasonable
control, Lessee shall keep the golf course and driving range open for business
each and every day during daylight hours; provided that Lessee may, in its
discretion, close the golf course and driving range for up to thirty ( 30) days each
fall
for
purposes
of overseeding
the Property. Lessee shall not operate the
driving range between the hours of 10: 00 p.m. and sunrise without the written
consent of the City, which the City may withhold in its sole discretion.
B. The golf course and driving range shall be used for tournaments, leagues and
lessons in such a manner as to provide the general public with a substantial
opportunity to use the same.
11.
GOLF
CARTS.
Lessee shall not require any golfer to use or rent golf carts ( electrical, gas or pull) in order
to
use
the
golf course. At all times that the golf course is open for play, Lessee shall
maintain at least 15 riding golf carts available for rental to the public.
12.
FEES.
Lessee shall have the right to set all fees charged to customers of the golf course and driving
range, which fees may be comparable to or more than those fees charged by competing
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metropolitan Phoenix- area public golf courses and driving ranges providing similar services.
Lessee shall not increase any greens fees, cart fees, driving range fees or club-rental fees
without first giving the City 30 days written notice of such increases, but such increases shall
not require the approval of the City. Notwithstanding any provision herein to the contrary,
Lessee may, in its discretion, offer discounts to junior or senior golfers and/ or to Glendale
residents using the golf course or driving range.
13.
ADDITIONAL
OPERATIONAL
OBLIGATIONS.
A. Lessee shall operate and manage the golf course and driving range in a safe and
first- class manner comparable to other publicly owned golf courses providing
similar
facilities
and
services. Lessee shall maintain a high standard of service
at least equal to that of other competing public golf courses in the metropolitan
Phoenix area.
B. Lessee shall operate a restaurant or snack bar from its clubhouse, offering coffee
and
a reasonable
selection
of soft drinks
and
snacks. At a minimum, such
restaurant or snack bar shall be open to sell beverages during all hours that the
golf course is open for play from April
1 through October
31 of each year.
Lessee
shall
at all times
maintain
the proper
Maricopa
County
Health
Department inspection ratings required for its food and beverage sales.
C. Lessee shall perform all of the following services, at its own cost, in connection
with its operations on the Property:
1.
Provide
and maintain
all equipment
and machinery
necessary
for the
proper maintenance of the Property.
2. Accept telephone and walk- in reservations for tee times in a manner and
number which Lessee determines will maximize the use and enjoyment of
the golf course.
3.
Supervise and control all play on and use of the Property.
4. Provide the services of an adult on- site manager at all times that the golf
course or driving range is open for play.
5. Provide golf lessons and instruction to persons of all skill levels wanting
them.
14
bf.,
6. Render the customary
and usual services of a golf professional
in the
promotion
and conduct
of tournaments,
exhibitions
and clinics.
7. Represent the golf course and driving range in accordance with standards
accepted by golf professionals.
8.
Provide an adequate supply of golf clubs and pull carts for rental to the
public.
9. Use its best reasonable
efforts to control the conduct
and demeanor of
Lessee' s employees, agents and invitees and, upon objection from the City
concerning the conduct or demeanor of any such person, immediately take
all lawful steps necessary to remove the cause of the objection.
10. Use its best reasonable efforts to conduct its operations in an orderly and
proper manner so as not to unreasonably annoy, disturb, endanger or be
offensive to others.
11. Use generally accepted security procedures.
12. Do nothing which may result in the commission of a nuisance, waste or
injury on the Property.
14.
ASSIGNMENT.
A. Subject to subsection ( B), Lessee shall not assign or sublease any of its interest
under
this Agreement
without the
prior
written
consent
of the
City, which
consent shall not be unreasonably
withheld
or delayed. The City may, as a
condition of assignment approval, require that any potential assignee submit
such biographical and financial information to the City as the City reasonably
deems necessary.
B. Lessee may mortgage, encumber or assign any portion of its right, title and
interest in the leasehold estate created by this Agreement to lenders for purposes
of financing the
capital
improvements required by this Agreement. Any such
mortgage,
encumbrance
or assignment
shall be subject to all of Lessee' s
obligations
under
this Agreement. No person or entity shall have the right to
place any mortgage, deed of trust, lien or encumbrance of any nature on the
15
City' s title to the Property, nor shall any permitted
assignment
result
in a
subordination, in whole or in part, of the City' s rights under this Agreement.
15.
ADVERTISING SIGNS.
Lessee may install on the Property, subject to the City' s sign ordinance, signs identifying its
business. The number, general type, size and location of signs must be approved in writing
by the City prior to installation.
16.
DEFAULT; TERMINATION BY CITY.
A. The City may terminate this Agreement by giving Lessee 30 days written notice
after the happening of any of the following events:
1.
The failure of Lessee to materially perform any of its obligations under this
Agreement, if Lessee fails to cure its default within said 30- day notice
period; or if a cure is not reasonably possible within 30 days and such
default has not been caused by Lessee' s gross negligence or intentional
misconduct, the failure of Lessee to initiate action necessary to cure the
default and to diligently proceed with such action until the default is cured.
2. The taking of possession for a period of 10 days or more of substantially
all of the personal property used on the Property belonging to Lessee by or
pursuant to lawful authority of any legislative act, resolution, rule, order or
decree, or
any
act, resolution, rule, order or decree of any court or
governmental board, agency, officer, receiver, trustee or liquidator.
3.
The filing of any lien against the Property because of any act or omission
of Lessee which is not discharged within 30 days of receipt of actual notice
by Lessee, unless Lessee initiates necessary action to remove such lien
within 30 days and diligently proceeds with such action until the lien is
removed.
B. The City may place Lessee in default of this Agreement by giving Lessee
10
days written notice of Lessee' s failure to timely pay the rent provided for in this
Agreement or any other charges required to be paid by Lessee pursuant to this
Agreement. During said 10- day notice period, Lessee shall cure said default,
otherwise
the
City
may
elect
to
terminate
this
Agreement, exercise
the
16
Remedies of Landlord" as set forth in Arizona Revised Statutes, Title 33, or
exercise any other remedy allowed by law or equity.
C. The City may terminate this Agreement immediately, upon written notice to
Lessee, if Lessee
abandons
its operations
on the Property. For purposes of this
Agreement, Lessee
shall
be conclusively
deemed
to have
abandoned
its
operations at any time that Lessee fails to offer or provide the services required
by this Agreement
for
a period of thirty ( 30) consecutive
days without
the
written consent of the City, unless such failure is because of circumstances
beyond Lessee' s control such as, but not limited to, weather, infestation of or
fungus in the grass, or lack of water.
D. If Lessee at any time fails to maintain any insurance required by this Agreement
through any fault or negligence of its own, the City shall have the right, upon
written notice to Lessee, to immediately terminate this Agreement or to secure
the required insurance at Lessee' s expense.
E. Upon termination of this Agreement for any reason, all rights of Lessee shall
terminate including all rights of Lessee' s creditors, trustees and assigns and all
others similarly situated as to the Property.
F. Failure by the City to take any authorized action upon default by Lessee of any
of its obligations
hereunder shall not constitute
a waiver of said default nor of
any subsequent default by Lessee.
17.
TERMINATION
BY LESSEE.
Lessee may terminate this Agreement at any time that it is not in default in its obligations by
giving the City 30 days written notice after the happening of any of the following events:
A. The failure of the City to materially perform any of its obligations under this
Agreement, if the City fails to cure its default within said 30- day notice period;
or if a cure is not reasonably possible within 30 days and such default has not
been caused by the City' s gross negligence or intentional misconduct, the failure
of the City to initiate necessary
action to cure the default and to diligently
proceed with such action until the default is cured.
17
B. Issuance by a court of competent jurisdiction of an injunction in any way
preventing or restraining Lessee' s use of any substantial portion of the Property
and the remaining in force of such injunction for a period of 30 consecutive
days.
C. The inability of Lessee to use any substantial portion of the Property for a period
of 30 consecutive days, due to the enactment or enforcement of any law or
regulation or because of fire, earthquake or similar casualty, or Acts of God or
the public enemy.
D. The material breach of any of the City' s representations and warranties set forth
in this Agreement.
18.
INDEMNIFICATION
BY LESSEE.
Subject to Section 20, to the extent permitted by law, Lessee shall defend, indemnify and
hold the City harmless from and against all fines, claims, damages, obligations, liabilities and
suits of every description, including
attorney' s fees and court costs, arising from any
negligence or fault on the part of Lessee, its employees, subcontractors or agents in the use
of the Property or the portion of the Right- of-Way leased to Lessee, whether caused in part
by any act, mistake, error or omission of the City or anyone for whose acts, mistakes, errors
or omissions the City may be liable, and regardless of whether it is caused in part by the City,
or from any failure to fully, faithfully and timely comply with all of Lessee' s obligations
under this Agreement. This Section applies, without limitation, to claims of personal injury,
bodily injury, property damage including without limitation loss of use, or other claims,
liability, harm or damages which may arise out of any use of the Property or the portion of
the Right- of-Way leased to Lessee. Lessee' s indemnification obligations shall include all
claims resulting from errant golf balls or equipment leaving the Property. This indemnity
does not apply to claims arising from the sole negligence or fault of the City. The City shall
give Lessee prompt notice of any claim made or suit instituted which may subject Lessee to
liability under this Section, and Lessee shall have the right to compromise
and defend the
same
to the extent
of its
own
interests. Lessee' s obligations hereunder shall survive any
termination of this Agreement or Lessee' s activities on the Property.
19.
INSURANCE.
Unless such insurance is not commercially available, Lessee shall procure and at all times
maintain the following types and amounts of insurance for their operations on the Property:
18
I' 9';
3
A. Commercial general liability insurance in the amount of$ 1, 000, 000 combined
single
limit
for bodily injury
and
property
damage
per
occurrence.
Such
insurance must include broad form contractual coverage, broad form property
damage
and personal injury coverage, products liability and food service
coverage, premises
operations
coverage, independent
contractors
and
subcontractors coverage and, if applicable, liquor liability coverage.
B. Comprehensive automobile liability insurance for all owned, leased and hired
vehicles in the amount of$ 1, 000, 000 combined single limit for bodily injury and
property damage per occurrence.
C. Fire and extended casualty coverage for all improvements
and fixtures on the
Property, in an amount not less that the full replacement value thereof, to the
extent such coverage is available to Lessee.
E. Worker' s compensation
and employer' s liability
coverage
in the amounts
required by law.
F. Such other types and amounts of insurance as the City' s Risk Manager may
reasonably determine to be necessary for Lessee' s operations.
Such insurance shall be in a form satisfactory to and from a company acceptable to the City' s
Risk Manager, shall name the City as an additional insured and shall require 30 days written
notice to the City before
modification
or termination. The insurance must also include
contractual liability coverage for the obligation of indemnity assumed in this Agreement.
20. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION BY CITY.
A. The City hereby warrants and represents ( with the understanding that Lessee is
relying on said warranties
and representations) that:
1.
The transactions contemplated by this Agreement and the execution and
delivery of all documents required herein and their performance hereunder
have been duly authorized. The execution and delivery of this Agreement
and any other document required herein and the consummation
of the
transactions contemplated hereby and thereby will not result in any
violations of or default under any term or provision of any agreement,
instrument, mortgage, loan or similar documents to which the City is a
party or by which it is bound.
19
2. Except
as set forth in Section 20( B), there is no litigation, investigation or
proceeding pending or to its knowledge contemplated or threatened against
the
City, the Property
or the Right- of-Way which would impair or
adversely affect the City' s ability to perform its obligations under this
Agreement or under any contract, instrument or document related hereto.
3.
To
its
knowledge,
there
is
no
existing, pending
or
anticipated
condemnation or similar proceeding against or involving the Property or
the Right- of-Way.
4. The City has not entered into any leases, options, contracts or rights of first
refusal, recorded or unrecorded, affecting the Property or the Right- of-Way
which have not been disclosed to Lessee in writing, in the Title Report
defined below), or otherwise.
5.
To its knowledge, there are no uncured violations of any federal, state or
local laws, rules, regulations, ordinances, codes, covenants, conditions,
restrictions or agreements applicable to the Property or the Right- of-Way.
The City has not received
any notices from insurance
companies,
governmental
agencies
or any other parties with respect to any such
violations or alleged violations or other matters affecting the Property.
6. The individuals executing this Agreement on behalf of the City are
authorized
and empowered
to enter into this Agreement.
7. To its knowledge, the City is not prohibited from consummating the
transaction
contemplated
in
this
Agreement by
any
law, regulation,
agreement, instrument, restriction, order or judgment.
8. No work has been performed or is in progress at or on the Property or the
Right-of-Way and no materials have been furnished to the Property or the
Right- of-Way which might give rise to mechanic' s, materialman' s or other
liens against the Property or the Right- of-Way or any portion thereof.
9. Neither the City, nor to its knowledge, any other person has ever caused or
permitted any Hazardous Material, as defined below, to be placed, held,
located or disposed of on, under or at the Property or the Right- of-Way or
any portion thereof or from the Property or the Right- of-Way or any
portion thereof into the atmosphere or any watercourse, body of water or
20
wetlands. To the City' s knowledge, neither the Property nor the Right- of-
Way or any portion thereof have ever been used as a treatment, storage or
disposal site for any Hazardous Material. For purposes of this Agreement,
the term " Hazardous Material" shall mean any petroleum product and any
hazardous substance or any pollutant or contaminant defined as such in ( or
for
purposes
of) in
any
existing
federal, state
or local
statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning ahy hazardous, toxic
or
dangerous
waste,
substance
or
material (
collectively
referred to as
Environmental
Law"). To the City' s knowledge, the Property does not
contain and never has contained any underground tanks and is not now
used
and
never
has
been
used
as
a landfill. The City shall
defend,
indemnify and hold Lessee, its successors and assigns, their respective
directors, officers, members, shareholders, employees, agents, contractors,
sub- contractors
and
invitees
harmless
from
and
against
all
claims,
judgments, damages, losses, penalties, fines, liabilities, costs and expenses
of whatever
kind
or
nature, including without
limitation
reasonable
attorney' s fees, any of which are incurred at any time as a result of the
existence ofHazardous Materials upon, about or beneath the Property prior
to the effective date of this Agreement.
10. To the City' s knowledge, neither the Property nor the Right-of-Way or any
portion thereof constitute
an archeological
or cemetery site.
B. The City acknowledges that claims could be made to the Property by the
stockholders
of Blue Valley Mortgage, Inc., a defunct Arizona corporation ( the
Blue Valley Claims").
The City shall defend, indemnify
and hold harmless
Lessee
and its employees,
agents, representatives,
lenders
and joint venture
partners ( hereinafter referred to collectively as " Lessee" in this subsection) from
all losses, damages or claims of whatever nature, including attorney' s fees,
expert witness fees and costs of litigation, which arise out of or in connection
with
the Blue Valley Claims. Lessee shall give the City prompt notice of any
actual claim made or suit instituted which may subject the City to liability under
this
subsection. The City' s obligations hereunder shall survive any termination
of this Agreement or Lessee' s activities on the Property.
C. As used in this Section, " to the knowledge of' and like phrases shall mean actual
knowledge
and the knowledge
which
a prudent business person would have
obtained
in the
management
of his, her
or
its business affairs. All of the
21
representations
and warranties contained in this Section will be true and correct
as of the effective date of this Agreement and shall survive any termination of
this Agreement or Lessee' s activities on the Property.
21.
TITLE INSURANCE.
A. The City shall deliver to Lessee within fifteen ( 15) days from the effective date
of this Agreement a current preliminary title report or commitment ( including
matters revealed by an inspection of the Property) issued by Transnation Title
Insurance Company ( the " Title Company") leading to the issuance of an ALTA
leasehold policy of title insurance with respect to the Property and the Right-of-
Way (the " Title Report"). The Title Report shall be accompanied by readable
copies of all instruments of record referred to therein.
B. Lessee shall have fifteen(
15) days from its receipt of the Title Report( the " Title
Review Period") within which to object, in writing, to the legal description, any
matters affecting title shown on the Title Report and related documents ( except
for the Blue Valley Claims), or matters that would be disclosed by an inspection
of the Property
or
the
Right- of-Way ( collectively
referred
to
as
the " Title
Objections").
The transaction
contemplated
herein is based upon free and clear
title subject
to: ( a) the usual printed exceptions contained in an ALTA Leasehold
Title Insurance Policy; ( b) all matters which could reasonably be disclosed by
an inspection of the Property and the Right- of-Way and not objected to within
the
Title Review Period; ( c) the
Blue
Valley
Claims; and ( d) such
other
exceptions
to title as may be approved by Lessee in its sole and absolute
discretion.
C. If Lessee makes any Title Objections within the Title Review Period, the City
shall
attempt, in good faith
and using
due diligence, to remove
the Title
Objections within twenty ( 20) days after notice thereof. If despite such attempts,
the Title Objections cannot be removed, Lessee shall, in its sole discretion, elect:
1) to waive in writing the curing of the Title Objections which the City could
not
cure; or ( 2) to terminate this Agreement by written notice to the City
whereupon
neither party shall have any further liability or obligations
to the
other party under this Agreement. Lessee' s failure either to give such a written
waiver or notice oftermination shall be deemed an election by Lessee to waive
such uncured
Title Objections.
22
D. Lessee'
s
obligations
under
this
Agreement
are
conditioned
upon
the
commitment of the Title Company to issue to Lessee, promptly following
Lessee' s acceptance of the title as set forth in this Section, an ALTA leasehold
policy insuring title to the Property and the Right-of-Way in the City in the
amount
of the loan for the golf course development ( the " Policy"). The Policy
shall be subject only to the usual printed exceptions, conditions and stipulations
in the form of policy, matters affecting title shown on the Title Report not
objected to by Lessee in accordance with the procedures set forth in this Section,
and the Blue Valley Claims. The City shall bear the cost of the Title Policy.
Both parties shall comply with all reasonable requirements
imposed by the title
insurer as a condition to issuance of the Policy.
22. QUIET ENJOYMENT.
So long as Lessee shall perform all of its obligations under this Agreement, Lessee shall
peaceably have and enjoy the exclusive use of the Property.
23. SURRENDER OF POSSESSION.
Upon the expiration or termination of this Agreement, Lessee' s right to occupy the Property
and exercise the privileges and rights herein granted shall cease, and Lessee shall surrender
the same, and leave the Property in good condition, normal wear and tear excepted. Unless
otherwise provided herein, all trade fixtures, equipment and other personal property installed
or placed by Lessee on the Property shall remain the property of Lessee, and Lessee shall
have the right at any time during the term of this Agreement, and for an additional period of
twenty ( 20) days after its expiration, to remove the same from the Property; provided that
Lessee is not in default of any of its obligations hereunder, that Lessee repairs at its sole cost
any damage caused by such removal, and that under no circumstances
shall Lessee remove
any of the capital improvements required hereunder. Any property not removed by Lessee
within said 20- day period shall become a part of the Property and ownership thereto shall
vest in the City.
24. CONDEMNATION.
In the event any portion of the Property, the portion of the Right- of-Way leased to Lessee or
any property affixed thereto is condemned by the City or by any other entity pursuant to
lawful authority, Lessee shall receive the fair market value of Lessee' s interest in the Desert
Mirage Golf Course, or portion thereof, as constituted
under the terms of this Agreement.
Such fair market value shall be determined in the same way that fair market value would be
23
determined in a condemnation action affecting the Property by an unrelated condemnor
possessing and having in all ways properly exercised proper condemnation powers.
Determination of fair market value shall take into account all interests which any person,
including the City, owns or may own in the Property.
25.
NOTICE.
All notices required or permitted to be given under this Agreement may be personally
delivered or mailed by certified mail, return receipt requested, postage prepaid, to the
following addresses:
TO THE CITY:
City of Glendale
Attention: Parks and Recreation
Director
5850 West Glendale
Avenue
Glendale, Arizona
85301
WITH A COPY TO: City of Glendale
Attention: City Attorney
5850 West Glendale Avenue
Glendale, Arizona
85301
TO LESSEE:
Par Golf, L.L. C.
Attention: Sid White
7539 East Indian School Road
Scottsdale, Arizona
85251
WITH A COPY TO: Stephen L. West
Udall, Shumway, Blackhurst, Allen
Lyons, P. C.
30 West First Street
Mesa, Arizona
85201- 6695
Any notice given by certified mail shall be deemed to be received on the next business day
after the date of mailing. Either party may designate in writing a different address for notice
purposes pursuant to this Section.
24
26.
SEVERABILITY.
Should any provision of this Agreement be declared to be invalid by a court of competent
jurisdiction, the remaining terms shall remain effective, provided that elimination of the
invalid provision does not materially prejudice any party with regard to its respective rights
and obligations.
27. TAXES AND LICENSES.
A. Lessee shall pay any leasehold tax, possessory interest tax, sales tax, property
tax, transaction privilege tax or other exaction assessed or assessable as a result
of its occupancy of the Property, or its conduct of business on the Property under
authority of this Agreement, including any tax assessable on the City; provided
that Lessee shall be entitled to a credit against any accruing rent payments for
all taxes which are assessable on the City and are paid by Lessee pursuant to this
subsection.
B. Lessee acknowledges that it may be a" prime lessee," as defined in A.R. S. § 42-
1901, and that it may be subject to excise tax liability under this Agreement
pursuant
to A.R. S., Title 42, Chapter
13
as a prime
lessee of a government
property improvement. Lessee further acknowledges that any failure by Lessee
to
pay
taxes
due
under A.R. S. Title
42, Chapter
13
after
notice
and
an
opportunity to cure shall constitute a default that could result in divesting Lessee
of any interest in or right to occupancy of the Property.
C. Lessee shall, at its own cost, obtain and maintain in full force and effect during
the term of this Agreement all licenses and permits required for the operations
authorized by this Agreement;
provided that if such operating licenses and
permits are issued by the City, Lessee shall be entitled to a credit against any
accruing rent payments for all fees for such licenses and permits.
28. COMPLIANCE WITH LAWS.
Lessee shall at all times comply with all federal, state and local laws, rules and regulations
which
are
applicable
to
its
operations
on
the Property, including
all laws, rules
and
regulations adopted after the effective date of this Agreement.
25
29.
DISCRIMINATION PROHIBITED.
Lessee shall not discriminate against any employee or applicant for employment because of
race, color, religion, sex, age, disability, political affiliation or national origin. Lessee shall
at all times operate the golf course, driving range and related facilities as public facilities and
shall not, on grounds of race, color, religion, sex, age, disability, political affiliation
or
national origin, deny any services, furnish any benefit which is different from that provided
to others, subject any person to segregated or separate treatment in any facility, or in any
manner or process related to receipt of any service or benefit, restrict the enjoyment of any
privilege enjoyed by others receiving such service or benefit.
30.
LITIGATION.
This Agreement shall be governed by the laws of the State of Arizona. In the event of any
litigation
or arbitration
between the City and Lessee arising under this Agreement, the
successful party shall be entitled to recover its own attorney' s fees ( whether in- house or
outside
counsel
is used), expert witness fees and other costs incurred in connection with such
litigation or arbitration. Both parties hereby waive any right to a jury trial which they may
otherwise have in the event of litigation arising under this Agreement and hereby consent to
a trial to the court.
31.
RIGHT OF ENTRY RESERVED.
The City shall have the right at all reasonable times to enter upon the Property for any lawful
purpose, provided that such action does not unreasonably interfere with Lessee' s use,
occupancy or security of the Property.
32. REMEDIES TO BE NONEXCLUSIVE.
All remedies provided in this Agreement shall be deemed to be cumulative and additional,
not in lieu of or exclusive of each other, or of any other remedy available to the City or
Lessee at law or in equity, and the exercise of any remedy, or the existence herein of other
remedies, shall not prevent the exercise of any other remedy.
33. TIME IS OF THE ESSENCE.
Time is of the essence with regard to the performance of all of the parties' obligations under
this Agreement.
26
34. MISCELLANEOUS.
This Agreement constitutes the entire agreement between the parties concerning the matters
contained
herein and supersedes
all prior negotiations, understandings
and agreements
concerning such matters. This Agreement shall be interpreted and enforced according to the
fair meaning of its terms and shall not be construed strictly in favor of or against either party,
regardless of which
party may
have drafted any
of its provisions. No provision of this
Agreement may be waived or modified except by a writing signed by the party against whom
such waiver or modification
is sought to be enforced. The terms of this Agreement
shall be
binding upon and inure to the benefit of the parties' successors and assigns.
35. SHORT FORM MEMORANDUM.
Upon the request of either party, the parties shall execute, acknowledge and deliver a short
form
or memorandum
of this Agreement
in recordable form. Such memorandum
shall state
that this Agreement expires automatically
at the end of the term set forth in this Agreement,
and the recorder of such memorandum
shall pay the cost of recordation.
EXECUTED
to be effective on the date specified above.
CITY OF GLENDALE
Its:
1.97
ice n) lying T, ltd
A,TT__
rtY Clerk
APPROVED
AS TO FORM:
City Attorney
27
riSLg
LESSEE
By: R;,
1
1
Its: Yupool, ti: G- c
i G- VLtGw1 062f
STATE
OF ARIZONA
ss.
COUNTY
OF MARICOPA )
The
foregoing
instrument
was
acknowledged
before
me
this
023
day of
1997, by `!
t, in
his
or
her
capacity
as
ea, ,
1 '
j0_
the Cit
lendale, an Arizona municipal corporation.
of /C/3
Notary Publi
My Commission
Expires:
r
OFFICIAL
IRCO
iota
STATE OF ARIZONA
ss.
COUNTY
OF MARICOPA )
The
foregoing
instrument
was
acknowledged
before
me
this /
e
dayday of
1997, by
L/
L it
in his or her capacity as
bf Par Golf, L. L.C., an Arizona limited liability company.
P
Notary Public
i...%
OFFICIAL
UANEPMULL
My Commission
Expires:
Notary Pablo.
N ib ofAtzcna
MAR
AcouNrr
ate'
Yy
t A
Ue$ Oec. 9, 1999
28
q 71 f
7; 11- "°
EXHIBIT
A
k
4n :GOLF COURSE PROPERTY)
PARCEL
NO.
1
That
portion
of
the
North
half
of
the
Southeast
quarter
of
Section.
10, Township
2
North, Range
1
East
of
the
Gila
and
Salt
River
Base
and
Meridian,
Maricopa
County, Arizona, described
as
follows:
BEGINNING
at
the
Northwest
corner
of
the
North
half
of
the
Southeast
quarter,
from
which
the
East
quarter
corner
bears
North
89
degrees
49 minutes
58 seconds East;
Thence
South
00
degrees
04
minutes
30
seconds
East, a
distance
of
839. 15
feet
to
a
point
on
a
non- tangent
curve, from
which
the
radius
point
of
said
curve
bears
North
00
degrees
04
minutes
30
seconds
West;
Thence
Northeasterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
1092 . 09
feet, a
central
angle
of
20
degrees
14
minutes
52
seconds,
and
an
arc
length
of
385.
93
feet, to
a
point
of
compound
curvature
from
which
the
radius
points
bear
North
20
degrees
19 minutes
22
seconds
West;
Thence
Northeasterly
along
said
curve, concave
to
the
Northwest,
having
a
radius
of
1875.
41
feet, a
central
angle
of
18
degrees
16
minutes
07
seconds,
and
an
arc
length
of
597. 97
feet, to
a point on the East line of the West 896. 80 feet of the
North
half
of
the
Southeast
quarter;
Thence
North
00
degrees
04
minutes
30
seconds.
West,
along
the
East
line
of
the
West
896. 80
feet
of
the North half
of
the
Southeast
quarter, a
distance
of
480.
97
feet
to
a
point
on
the
North line of the North half of the Southeast quarter;
Thence
South
89
degrees
49
minutes
58
seconds
West,
a
distance of
896. 80 feet to the
POINT
OF
BEGINNING;
EXCEPT
that
portion
lying
within
that
certain
ditch
known
as
sub- lateral
to
Lateral
20
of
the
Arizona
Canal
as
the
said
sub- lateral
is
located
and
constructed
as
of
October
22 ,
1915,
thru, over
and
across
the
South
half
of
the
Northeast
quarter
and
the
North
half
of
the
Southeast
quarter
of
Section
10,
Township
2
North, Range
1
East
of
the
Gila
and
Salt
River
Base
and
Meridian, Maricopa
County,
Arizona,
the
centerline
of
the
said
sub- lateral
described
as
follows:
BEGINNING
at the
East
quarter
corner
of
said
Section
10
and
using
as
a
base
the
East
and
West
mid-
section
line
of
said
Section, ( the
said
East
and
West
mid- section
line
having
a
bearing
of
North
89
degrees
58
minutes
West, based
on
a magnetic
bearing
of
South
75
degrees
40
minutes
West) ;
DESCRIPTION
CONTINUED
FOR
PARCEL
NO.
1
Thence
North
0
degrees
02
minutes
East
a
distance
of
15. 5
feet;
Thence
North
89
degrees
58
minutes
West,
a
distance
of
10.
5
feet to the
TRUE
POINT
OF
BEGINNING;
Thence
North
89
degrees
58
minutes
West,
a
distance
of
704. 5 feet;
Thence
South
0
degrees
02
minutes
West, a
distance
of
11. 5
feet;
Thence
North
89
degrees
58
minutes
West, a
distance
of
560
feet;
Thence
South
0
degrees
02
minutes
West, a
distance
of
10.
5
feet;
Thence
North
89
degrees
50
minutes
West, a
distance
of
1375.
3
feet
to
a
point
in
the
North
and
South
mid- section
line
of
the
said
Section
10,. from
which
point
the
mid- section
corner
of
the
said
Section
bears
North
0
degrees
02
minutes
East,
a
distance
of
3
feet.
t
E -
iIBIT
B
7 -^
ti> (
RIGHT-
OF-
WAY)
PARCEL
NO.
2
That
portion
of
the
North
half
of
the
Southeast
quarter
of
Section
10, Township
2
North, Range
1
East
of
the
Gila
and
Salt
River
Base
and
Meridian, Maricopa
County, Arizona, described
as
follows:
COMMENCING
at the
Northwest
corner
of
the North
half
of the
Southeast
quarter,
from
which
the
East
quarter
corner
bears
North
89 degrees
49 minutes
58
seconds East;
Thence
South
00
degrees
04
minutes
30
seconds
East,
a
distance
of
839. 15
feet
to
the
POINT
OF
BEGINNING,
said
point
being
on
a
nontangent
curve, from which the radius
point
of
said
curve
bears
North
0.0 degrees
04 minutes
30
seconds
West;
Thence
Northeasterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
1092 .
09
feet, a
central
angle
of
20
degrees
14
minutes
52
seconds, an
arc
length
of
385. 93
feet,
to
a
point
of
compound
curvature
from
which
the
radius
points
bear North
20 degrees
19 minutes
22
seconds
West;
Thence, Northeasterly
along
said
curve, concave
to
the
Northwest,
having
a
radius
of
1875. 41
feet, a
central
angle
of
18
degrees
16
minutes
07
seconds, and
an
arc
length
of
597. 97
feet, to
a point
on' the
East
line
of the
West
896. 80
feet
of the
North half of the
Southeast
quarter;
Thence
South
00
degrees
04
minutes
30
seconds
East, along
the
East
line
of
the
West
896.
80
feet
of
the
North
half
of
the
Southeast
quarter, ' a
distance
of
50. 79
feet, to
a
point
on
a
non- tangent
curve, ' from
which
the
radius
point
of
said
curve
bears
North
37
degrees
38
minutes
43
seconds
West;
Thence
Southwesterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
1915.
41
feet, a
central
angle
of
17
degrees
19
minutes
21
seconds, and
an
arc
length
of
579 . 10
feet, to
a
point
of
compound
curvature
from
which
the
radius
points bear North
20 degrees
19 minutes
22
seconds
West;
Thence
Southwesterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
1132 .
09
feet, a
central
angle
of
20
degrees
14
minutes
52
seconds, and
an
arc
length
of
400. 07
feet, to
a
point
on
the
West
line
of
the
North
half
of
the
Southeast
quarter;
Thence
North
00
degrees
04
minutes
30
seconds
West,
along
the
West
line
of
the
North
half
of
the
Southeast
quarter, a
distance
of
40. 009
feet, to
the
POINT
OF
BEGINNING.
EXHIBIT
C
7'
r '( c3OLF
COURSE
PROPERTY)
PARCEL
NO.
3
That
portion
of
the
North
half
of
the
Southeast
quarter
of
Section
10, Township
2
North,
Range
1
East
of
the
Gila
and
Salt
River
Base
and
Meridian, Maricopa
County, Arizona, described
as
follows:
BEGINNING
at
the
Northeast
corner
of
the
West
896.
80
feet
of
the
North
half
of
the
Southeast
quarter
from
which
the
East
quarter
corner
bears
North
89
degrees
49
minutes
58
seconds
East;
Thence
South
00
degrees
04
minutes
30
seconds
East
along
the
East
line
of
the
West
896. 80
feet
of
the
North
half
of
the
Southeast
quarter,
a
distance
of
480. 97
feet, to
a
point
on
a
non- tangent
curve, from
which
the
radius
point
of
said
curve
bears
North
38
degrees
35
minutes
29
seconds
West;
Thence
Northeasterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
1875.
41
feet, a
central
angle
of
05degrees
59
minutes
12
seconds, and
an
arc
length
of
195. 96
feet, to
a
point
of
compound
curvature
from
which
the
radius
points
bear
North
44
degrees
34
minutes
41
seconds
West;
Thence
Northeasterly
along
said
curve, concave
to
the
Northwest,
having
a
radius
of
491. 91
feet, a central
angle
of
45
degrees
35
minutes
21
seconds,
and
an arc
length of
391. 40
feet,
toa point
on
the
North
line
of the North
half
of
the
Southeast
quarter;
Thence
South
89
degrees
49
minutes
58
seconds
West, along
the
North
line
of
the
North
half
of
the
Southeast
quarter,
a
distance
of
293 . 68
feet, to the
POINT
OF
BEGINNING.
EXCEPT
that
portion
lying within that certain ditch known
as
sub- lateral
to
Lateral
20
of
the
Arizona
Canal
as
the
said
sub- lateral
is
located
and
constructed
as
of
October
22,
1915,
thru, over
and
across
the
South
half
of
the
Northeast
quarter
and
the
North
half
of
the
Southeast
quarter
of
Section
10,
Township
2
North,
Range
1
East
of
the
Gila
and
Salt
River
Base
and
Meridian,
Maricopa
County, Arizona,
the
centerline
of
the
said
sub- lateral
described
as follows:
BEGINNING
at the
East quarter
corner
of said Section
10
and
using
as
a
base
the
East
and
West
mid- section
line
of
said
section, (the
said
East
and
West
mid-
section
line
having
a
bearing
of
North
89
degrees
58
minutes
West, based
on
a
magnetic
bearing
of
South
75
degrees
40
minutes
West) ;
rpI
7
p
F:-
DESCRIPTION
CONTINUED
FOR
PARCEL
NO.
3
Thence
North
0
degrees
02
minutes
East
a
distance
of
15. 5
feet;
Thence
North
89
degrees
58
minutes
West, a
distance
of
10.
5
feet to
the
TRUE
POINT
OF
BEGINNING;
Thence
North
89
degrees
58
minutes
West, a
distance
of
704. 5
feet;
Thence
South
0
degrees ,
02
minutes
West, a distance
of
11. 5
feet;
Thence
North
89
degrees
58
minutes
West, a
distance
of
560
feet;
Thence
South
0
degrees
02
minutes
West, a
distance
of
10.
5
feet;
Thence
North
89
degrees
50
minutes
West, a
distance
of
1375.
3
feet to
a point, in the North
and
South mid- section line
of
the
said
Section
10, from
which
point
the
mid- section
corner
of
the
said
Section
bears
North
0
degrees
02
minutes
East, '
a
distance' of
3
feet.
EXHIBIT
D
RIGHT- OF- WAY)
PARCEL
NO.
4
That
portion
of
the
North
half
of
the
Southeast
quarter
of
Section
10, Township
2
North,
Range
1
East
of
the
Gila
and
Salt
River
Base
and
Meridian,
Maricopa
County, Arizona, described
as
follows:
COMMENCING
at
the
Northeast
corner
of
the
West
896.
80
feet
of
the
North
half
of. the
Southeast
quarter, from
which
the
East
quarter
corner
bears
North
89
degrees
49
minutes
58
seconds
East;
Thence
South
00
degrees
04
minutes
30
seconds
East, along
the
East
line
of
the
West
896.
80
feet
of
the
North
half
of
the
Southeast
quarter,
a
distance
of
480.
97
feet, to
the
POINT
OF
BEGINNING,
said
point
being
on
a
non- tangent
curve, from
which
the
radius
point
of
said
curve
bears
North
38
degrees
35
minutes
29
seconds
West;
Thence
Northeasterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
1875.
41
feet; a
central
angle
of
05
degrees
59
minutes
12
seconds,
and
an
arc
length
of
195.
96
feet; to
a
point
of
compound
curvature
from
which
the
radius
points
bear
North
44
degrees
34
minutes
41
seconds
West;
Thence
Northeasterly
along
said
curve,
concave
to
the
Northwest,
having
a
radius
of
491.
91
feet, a
central
angle
of
45
degrees
35
minutes
21
seconds, and
an arc
length of
391. 40
feet;
to
a point
on
the
North
line
of
the
North
half
of
the
Southeast
quarter;
Thence
North
89
degrees
49
minutes
58
seconds
East,
along
the
North
line
of
the
North
half
of
the
Southeast
quarter,
a
distance
of
40. 00
feet, to
a
point
on
a
non- tangent
curve, from
which
the
radius
point
bears
South
89
degrees
49
minutes
58
seconds
West;
Thence
Southwesterly
along
said
curve,
concave
to
the
Northwest, having
a
radius
of
531. 91
feet, a central
angle
of
45
degrees
35
minutes
21
seconds,
and
an
arc
length
of
423 . 23
feet,
to
a
point
of
compound
curvature
from
which
the
radius
points
bear
North
44
degrees
34
minutes
41
seconds
West;
Thence
Southwesterly
along
said
curve, concave
to
the
Northwest,
having
a
radius
of
1915.
41
feet, a
central
angle
of
06
degrees
55
minutes
58
seconds,
and
an
arc
length
of
231. 76
feet, to a point on the East line of the West 896. 80 feet of the
North
half
of
the
Southeast
quarter;
0.
DESCRIPTION
CONTIRUED
POR
PARCEL
NO.
4
Thence
North
00
degrees
04
minutes
30
seconds
West, along
the East line of the West
896. 80 feet of the North half of the
Southeast
quarter,
a
distance
of
50. 79
feet
to
the
POINT
OF
BEGINNING.
11 [
1
y
EXHIBIT
E
Golf Course Property)
Tract" A", AMENDED PLAT OF WEST PLAZA 31 and 32, according to Book 297
of Maps, page 34, amended in Book 313 of Maps, page 22 and in Book 317 of Maps, page
13 and Affidavit of Correction recorded May 23, 1988, in Document No. 88247176, records
of Maricopa County, Arizona.
EXHIBIT F
Golf Course Property)
Tract" A", LA BUENA VIDA PHASE I, according to Book 313
of Maps, page
32, records of Maricopa County, Arizona.
EXHIBIT
G
Golf
Course
Property)
That portion of Section 10, Township 2 North, Range 1 East, of the Gila
and Salt River Base and Meridian, Maricopa County, Arizona, more particularly
described
as follows:
BEGINNING
at the Westerly most
corner
of TRACT " A", LA BUENA
VIDA PHASE I, as recorded in Book 313, of Maps, page 32, Records of Maricopa
County, Arizona, said corner being on the East- West mid- section line of said Section
10, and from which the center of said Section 10 bears North 89 degrees 50 minutes
00 seconds East, a distance of 959. 41 feet;
THENCE Northwesterly, along a curve concave to the Southwest, having
a radius of 790. 00 feet, a central angle of 04 degrees 32 minutes 15 seconds, and an
arc length of 62. 56 feet, said curve being a Northwesterly projection of the curved
Southwesterly boundary of said TRACT " A", LA BUENA VIDA PHASE I, to a
point on the Southerly projection of the Easterly line of LOT 589, WEST PLAZA 31
32, as recorded in Book 297 of Maps, page 34, records of Maricopa County,
Arizona;
THENCE North 10 degrees 05 minutes 36 seconds East, along said
projection, a distance of 5. 85 feet, to the Southeasterly corner of said LOT 589;
THENCE Southeasterly, along a curve concave to the Southwest, having a
radius of 1065. 00 feet, a central angle of 05 degrees 30 minutes 49 seconds, and an
arc length of 102. 10 feet, said curve being a Southwesterly boundary of TRACT
A", of said WEST PLAZA
31 &
32, to a point on the East- West mid- section line of
said Section 10, and from which the center of said Section 10 bears North 89 degrees
50 minutes 00 seconds East, a distance of 918. 65 feet, said point being on the South
line
of said TRACT " A", WEST PLAZA 31 & 32, and said point also being on the
North line of said TRACT " A", LA BUENA VIDA PHASE I;
THENCE South 89 degrees 50 minutes 00 seconds West, along the East-
West mid-section line of said Section 10, a distance of 40.76 feet, to the POINT OF
BEGINNING.
8
9/ K77ibD
EXHIBIT
H
Conceptual
Routing Plan
of Golf Course)
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i ,
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ta
C1J
AC
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p
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8
m
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14
rr: og _,,.
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asU
a
m
V
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d
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i
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r..............
1001,... _ .-.
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yln*t
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fie
ill
EXHIBIT I
Maintenance Standards
In entering into this Agreement, the City and Lessee have foremost in mind providing
public access to enjoyable first- class golf course services and facilities of the highest quality.
To accomplish
this end, Lessee shall maintain
and operate the Desert Mirage Golf Course
the " Course") according to standards equal to or higher than those maintained at other
similar facilities in Maricopa County, Arizona all as reasonably determined by the City. For
purposes of this Agreement, the golf courses listed below (the " Comparison Courses")
shall
be deemed to be similar facilities. The City shall have the right by written notice from time
to time in its reasonable discretion to designate other comparable public golf courses in
Maricopa County as additional or new Comparison Courses. Without limitation, Lessee shall
operate the Course in a first- class manner; shall furnish prompt and courteous service; and
shall keep the Course attractively maintained, orderly, clean, sanitary and in an inviting
condition at all times, all to the reasonable satisfaction of the City. Lessee shall not employ
any person in or about the Course who shall fail to be courteous, efficient and neat in
appearance or who shall use improper, obnoxious or rude language or act in a loud or
boisterous or otherwise improper manner. No nudity or adult entertainment of any sort is
permitted at the Course.
Comparison Courses
Name
Address
Glen Lakes Municipal
Golf Course
5450 W. Northern Avenue, Glendale, AZ
Rolling Hills Golf Course
1415 N. Mill Avenue, Tempe, AZ
Villa De Paz Golf Course
4220 N. 103rd Avenue, Phoenix, AZ