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2002-410
riLE REFERENCE FORM I 2002-410 I X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Amendment to Lease - Ordinance No. 2005-018 01/18/05 J I~ S:\Our Documents\Ordinanees\02\Golf Range amendment.doe AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A GOLF DRIVING RANGE LEASE CONTRACT FOR NORTH LAKES PARK IN THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton and The Fundamentals Program, Inc. dba ONCourse USA (the "Lessee") had previously entered into a lease agreement to provide golf range operations, said lease having expired; and WHEREAS, the City and Lessee desire to enter into a new lease for such operations; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to enter into the Lease to operate a golf driving range operation for the per/od herein stated in the Lease, which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the /t~~ dayof ~,/~,/~,~_J ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: S:\Our Documents\Contracts\02\GOLF DRIVING RANGE LEASE CONTRACT.doc GOLF DRIVING RANGE LEASE CONTRACT NORTH LAKES PARK, CITY OF DENTON THIS AGREEMENT made this /0~-- day of ff(~ff~j ,2002 between the City of Denton (herein referred to as the "City"), and residing at 321 E. McKinney, Denton, Texas, and The Ftmdamentals Program, Inc. dba ONCourse USA (hereinafter referred to as the "Lessee"), and residing at 2509 E. Windsor, Denton, Texas 76201. WITNESSETH: WHEREAS, the City and the Lessee have previously entered into a lease agreement to provide golf range operations, said lease having expired; and WHEREAS, the City and the Lessee desire to enter into a new lease for such operations; and NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. The City hereby grants to Lessee and Lessee hereby accepts from the City a lease to operate a golf driving range operation for the period herein stated and subject to all of the terms and conditions herein contained, the following described property: A portion of North Lakes Park in the City of Denton, Texas, designated on Exhibit "A", a copy of which is attached hereto and incorporated by reference herein. 2. The initial term of the Lease shall commence on the 1st day of January, 2003 and shall terminate on the 31st day of December, 2006, unless sooner terminated as herein provided, or unless City by thirty (30) days' notice in writing shall terminate the Lease, when, in its judgment, it is deemed that such termination is necessary by the operation of law, or pursuant to the terms of this agreement, or it is deemed that the leased premises are required for other City purpose or purposes. The lease may be renewed and extended upon mutual agreement of the City and the Lessee for three (3) additional five (5) year periods. 3. Hours of Operation. The Lessee shall post the hours of operation of the Golf Driving Range in a conspicuous place in the leased area. The Lessee shall have the right to make written application to the Director of Parks and Recreation for a change in the hours of operation of the Golf Driving Range, which, upon the approval of the Director, shall become the temporary hours of operation of the Golf Driving Range. The Director reserves the right to revole the contract of the Lessee if the Lessee does not adhere to the schedule of operations. Lessee agrees to operate such Lease for the accommodation of the public using the said facility during such seasons and such times and in such manner as the City may reasonably prescribe. 4. Rental. The Lessee agrees to pay to the City rental payments in monthly installments on the fa-st day of each month in the amounts set forth on Exhibit "B" attached hereto and made a part hereof by reference. 5. Utilities. The Cost of water, gas, electricity, and telephone service used in the operations will be paid by the Lessee. If no water, electric or gas meters are installed, the amount of water, gas, and electricity may be estimated by the Director of Parks and Recreation and the cost of such use will be paid by the Lessee. Should the Lessee neglect to pay any charges for electricity or other services supplied by the City when the same shall become due and payable, then the amount of said charges shall forthwith beceme a part of and be added to the Lease fee and shall under all circumstances and conditions be considered and be collectible with the next Lease fee then due. Failure to pay shall result in termination of this contract. The Lessee may have a telephone installed for private use, at the Lessee's own expense, and shall pay the monthly bill for same. 6. Fixed Equipment. It is understood and agreed that the Lessee shall have the use of all fixed equipment now on the leased promises belonging to the City, listed on the schedule of fixed equipment on file in the office of the Department of Parks and Recreation. The Lessee agrees to supply, maintain, and replace at the sole cost and expense of the Lessee all expendable equipment such as tractors, office equipment, ball-cleaning machines, and other equipment required for the proper operation of this license. Title to all equipment provided by the Lessee, except fixed equipment belonging to the City and listed on the schedule of fixed equipment, shall remain with the Lessee, and such equipment shall be removed by the Lessee at the termination of this Lease except as hereinafter provided in clause "Violations." Should any such property remain in demised premises after such expiration or termination, the Directcr may deal with such as though same had been abandoned and charge all cost and expense incurred in the removal thereof to the Lessee. The Lessee's obligation to observe and perform all of the terms and covenants of this Lease shall survive the expiration or other termination thereof. Should the Director determine that any equipment installed by the Lessee not appearing on the schedule of equipment belonging to the City may be removed without injury or damage, the Lessee shall remove such equipment and deal therewith as Lessee's own personal property. 7. Maintenance of Facility or Operation. and Improvements to Leased Premises. The Lessee, with the knowledge and approval of the Director, may install future structures, buildings, and equipment deemed mcessary for the proper operation of this Lease and shall be responsible for full payment for same, and shall maintain all structures, buildings, and equipment, fixed and expendable, in good order and repair at the Lessee's sole cost and expense during the term of the Lease. Plans and specifications for all additional and fixed structures, buildings and equipment shall be submitted to the Director for approval before being placed, built, delivered to or installed in the leased premises, and the building or installation shall be subject to inspection and approval by the Director. Title to all fixed structures, buildings or equipment shall vest in the City immediately upon its being built or brought into the leased -2- premises. Bills of sale or other evidence of purchase shall be delivered to the City within ninety (90) days aRer construction or delivery as hereinabove mentioned, and the schedule of fixed structures, buildings or equipment shall also list and include the exact construction or articles, which have become the property of the City during the term of this Lease. The Lessee, at the sole cost and expense of the Lessee, shall maintain that portion of the North Lakes Park assigned to Lessee in full and complete repair to the satisfaction of the Director during the term of this Lease. The North Lakes Driving Range area of the North Lakes Park, together with all structures, buildings, and equipment, shall be returned to said City in good order, condition, and repair. 8. Sanitation. The Lessee shall keep the North Lakes Driving Range tee boxes, admission/concession facility, and the surronnding area for a distance of fifteen (15) feet clean and neat at all times. Mowing and gronnd maintenance of the range away from these specified m'eas will be the sole responsibility of the City. Removal of refuse shall be the responsibility of the Lessee who shall see that refuse pickups are made as often as required without accumulation. 9 Memhandise for sale. The Lessee shall post in a conspicuous place inside he concession area a price list of all articles offered for sale. This price list shall be submitted to the Director each season before the beginning of operation with a schedule of articles to be offered for sale only as such articles and at such prices above cost as have been approved by the Director. Such prices may be changed from time to time by agreement between the parties hereto. The schedule of prices approved by the Director shall be printed, framed, and displayed at the expense of the Lessee. 10. Personnel. The Lessee will personally operate said personnel satisfactory to the Director, and the Lessee agrees to replace said personnel or any employee, whenever demanded by the Director, upon due cause being shown. The Lessee agrees to have a sufficient number of personnel on duty at such leased areas for the proper operation of this Lease. Lessee must comply with all State and Federal regulations, including the American Disabilities Act, and must practice Affirmative Action in compliance with the City of Denton's policies. 11. Permits. The Lessee shall procure at its own cost and expense all permits or licenses necessary for the legal operation of this Lease. 12. Lease. It is expressly understood and agreed that during the term of the Lease, the Lessee shall have the use of the leased premises as herein provided; and the Lessee has the right to occupy the space assigned to it and to operate the Lease hereby granted to it and to continue in possession thereof only so long as each and every provision and condition herein contained is properly complied with. 13. Assignability. The Lessee shall not sell, mortgage, rent, assign or parcel out the Lease granted, or any interest therein, or allow or permit any other person or party to use or -3- occupy any part of the pr~nise covered by this Lease for any purpose whatsoever without first obtaining written consent of the Director, nor shall the Lease be transferred by operation of law, it being the purpose and spirit of this instrmnent to grant this lease and privilege personally and solely to the Lessee herein named. 14. Advertising. The Lessee agrees not to employ callers, criers, or use signs or any other means of soliciting business without the approval of the Director, and agrees not to advertise said Lease in any manner or form on or about the premises leased to it, or elsewhere, or in any newspaper or otherwise, without such approval. 15. Alterations. Any such repairs, alterations, decorations, additions, or improvements shall be made at the sole cost and expense of the Lessee, and shall become the property of the City irnmediately upon their annexation to the demised premises. 16. Damages to Premises. If buildings or structures are damaged in any way whatsoever by mason of any act or omission of Lessee or its employees, then the Lessee shall repair at its own cost and expense the building or structure so damaged. Upon the failure of the Lessee to make such repairs, the Director may repair such damage at the cost and expense of the Lessee. 17. Inspection. The Lessee agrees that at all times free access will be given to Representatives of the Director, the Department of Health and other city, county, state, or federal officials having jurisdiction for inspection purposes. The Lessee further agrees that if notified by the Director or the Director's representatives that any part of the leased premises or the facilities thereof is unsatisfactory, the Lessee will remedy the same at once. 18. Waiver of Damage. The Lessee hereby expressly waives any and all claims for compensation for any and all loss or damage sustained by reason of any defects, deficiency or impairment of the electrical apparatus or wire furnished for the leased premises, or by mason of any loss of any gas supply, water supply, heat or current which may occur from time to time from any cause, or for any loss resulting from fire, water, tornado, explosion, civil commotion or riot, or any act of God, and the Lessee hereby expressly releases and discharges the City, its agents, officers, and employees from any of the causes aforesaid and agrees to hold them harmless therefore, including attorney fees, if any. 19. Public Interference. The Lessee hereby expressly waives any and all claims for compensation for any and ali damage or loss sustained by reason of any interference by any public official or agency, in the operation of this Lease. 20. Risk of Operation. The Lessee assmnes all risks of operation of the North Lakes Driving Range and agrees to comply with all federal, state, andlocal laws and regulations and orders of the City of Denton affecting the leased promises in regard to all matters. The Lessee expressly agrees to hold the City, its agents, officers and employees harmless frmn any and all claims arising out of any violation of any law, rule, regulations, or order, and from any and all claims for loss, drayage, or injury to persons or property of whatever kind or nature arising from the operation of this Lease, whether the same are caused by the sole negligence of Lessee or the joint negligence of the City and the Lessee, and the Lessee expressly -4- agrees to indemnify the City, its agents, officers, and employees to the extent of any recoveries against them individually or jointly arising from same. 21. Insurance Standard Provisions. All insurance policies obtained shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Lease, or longer, if so noted: - Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. Any deductibles or self-insured retentions declared in the submitted proposal shall be met. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. - Liability policies shall be endorsed to provide the following: 1) Name as additional insured the City of Denton, its officials, agents, employees, and volunteers. 2) That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. - All policies shall be endorsed to provide thirty- (30) days' prior written notice of cancellation, non-renewal or reduction in coverage. Should any of the required insurance be provided under a claims-made form, Lessee shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term, which give rise to claims made after expiration of the contract shall be covered. - Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. - Should any required insurance lapse dur'mg the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. -5- Specific Additional Insurance Requirements All insurance policies proposed or obtained in satisfaction of this Lease shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: A. General Liability Insurance General Liability insurance with combined single limits of not less than $1,000,000 shall be provided and maintained by the Lessee. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Cotumercial General Liability form (ISO Form CG 0001 Current Edition) is used: - Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. - Coverage B shall include personal injury. - Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: - Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. - Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. B. Automobile Liability Insurance Comprehensive or business Automobile Liability insurance shall be provided by the Lessee with limits of not less than $500,000 per occurrence either in a single policy or in a combination of underlying and umbrella or excess policies. This policy will include bodily injury and property damage liability arising out of operation, maintenance or use of any auto, including owned, non-owned and hired automobiles and employee non-ownership use. (ISO Form CA 0001 Current Edition) C. Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in -6- addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $i00,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees, and volunteers for any work performed for the City by the Named Insured. 22. Violations. Should the Lessee breach or fail to comply with any of the provisions of this agreement, or federal, state, or local laws or any role, regulation or order of the Department of Parks and Recreation affecting the Lease or the leased premises in regard to any and all matters, the Director may, in writing, order the Lessee to remedy such breach or to comply with such provisions, laws, rules, regulations, or order, and in the event that the Lessee fails to comply with such written order within fort~-eight (48) hours fi.om the receipt thereof, then this Lease shall immediately terminate and end as though it were the time provided for tl~ termination thereof. If said breach or failure to comply is corrected, and a second or repeated violation of the same rule, provision, law, regulation or order follows thereafter, the Director by notice in writing may revoke or terminate this Lease, such revocation and termination to immediately become effective on the mailing thereof, the Lease to terminate as though it were the time provided for the termination thereof. Should the Lessee be convicted of a crime related to or affecting the operation cf the Golf Driving Range, the Director may terminate this Lease by notice in writing immediately effective on mailing, the Lease to terminate as though it were the time provided for the termination thereof. Should the Director, in his/her sole judgment, decide that the Lessee is not operating the Lease herein granted in a satisfactory manner, then the Director may terminate this Lease by notice in writing immediately effective on mailing, the Lease to terminate as though it were the time provided above for the temaination thereof. In the event the Lease terminates as aforesaid, or for any reason whatsoever as elsewhere provided in this Lease, all tights of the Lessee therein shall be forfeited without any claims for damage, compensation, refund of its investment, if any, or any other payment whatsoever against the Director or the City. In the event this Lease terminates as aforesaid, any property of Lessee within said Lease area may be held and used by the City in order to operate said Lease during the bahnce of the calendar year and may be held and used thereafter until all indebtedness of Lessee hereunder at any time of termination of this license is paid in full. 23. Notice. Where provision is made herein for notice to be given in writing, the same may be given by mailing a copy of such notice to the Lessee by registered mail, addressed to the address hereinabove or any such other address as shall be filed with the Director, or by delivering a copy of said notice to the Lessee or any other person in charge of the leased premises. 24. Surrender. The Lessee, at the expiration or sooner termination of this Lease, shall quit and surrender the leased premises and all property listed on the schedule of fixed equipment on file at the office of the Director of Parks and Recreation, belonging to the City in as good -7- condition as when taking possession thereof, reasonable wear and tear and damage by the elements expected. The Lessee shall be held responsible for all fixed equipment listed on the aforesaid schedule of timed equipment belonging to the City and shall surrender the quantities listed on said schedule of fixed equipment, which belongs to the City and which should be at the leased premises by virtue of the premises of this Lease. 25. Security Deposit. The Lessee shall provide the City with a security deposit in the amount of Five Hundred Dollm's ($500), prior to the opening of the Golf Driving Range to the public. 26. Relief. The Lessee may, in the discretion of thc Director of Parks and Recreation, h~ relieved in whole or in pm't of any or all obligations of this agreement for such stated periods of time as the Director may deem proper upon written application showing circumstances beyond the Lessee's control warranting such relief. 27. Director. Wherever the term "Director is used in this agreement, it shall also be construed to include the City Manager as well as the Director of Parks and Recreation, or any other assigned agents as the Director deems necessary. /0"~'~ IN W}~l~ ~E~S~S.V~;E ,REOF, the parties hereto have executed this Lease this day of /~L ttSf~/'/'b~M~ 2002. CITY OF DENTON, TEXAS ~l-i~ael A. C~nduf~, C~r APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: THE FUNDAMENTALS PROGRAM, INC. dba ONCourse USA Titl .~' ~'~'d -8- Exhibit AII North Lakes Park 639 Golf Driving Range Area Tennis Center Recreation Center BONNIE 91,' EXHIBIT B Golf Driving Range Lease Agreement for 2003-2006 INCLUDES THREE (3) FIVE YEAR EXTENSIONS FROM 2007-2021 IF DEPARTMENT ELECTS TO RENEW LEASE YEAR MONTHS PAYMENT ANNUAL AMOUNT 2003 12 $708.33 $8,500.00 2004 12 $791.66 $9,500.00 2005 12 $875.00 $10,500.00 2006 12 $958.33 $11,500.00 TOTAL $40,000.00 First Five (5) Year Extension, If Approved YEAR MONTHS PAYMENT ANNUAL AMOUNT 2007 12 $1,041.66 $12,500.00 2008 12 $1,041.66 $12,500.00 2009 12 $1,125.00 $13,500.00 2010 12 $1,208.33 $14,500.00 2011 12 $1,375.00 $16,500.00 TOTAL $69,500.00 Second Five (5) Year Extension, If Approved YEAR MONTHS PAYMENT ANNUAL AMOUNT 2012 12 $1,375.00 $16,500.00 2013 12 $1,375.00 $16,500.00 2014 12 $1,375.00 $16,500.00 2015 12 $1,375.00 $16,500.00 2016 12 $1,375.00 $16,500.00 TOTAL $82,500.00 Third Five (5) Year Extension, If Approved YEAR MONTHS PAYMENT ANNUAL AMOUNT 2017 12 $1,375.00 $16,500.00 2018 . 12 $1,375.00 $16,500.00 2019 12 $1,512.50 $18,I50.00 2020 12 $1,512.50 $18,150.00 2021 12 $1,512.50 $18,150.00 TOTAL $87,450.00 Date: 12/&/02 Time: 9:07 AM To: Avery, Kathy ~ ~0-~-~ Page: 001-006 ACORD. CERTIFICATE OF LIABILITY INSURANCE 12/04/2002 pRODUCER (940)382-9691 Ramey & K~ng Insurance 510 North 1-35 E Denton, TX 76205 FAX (940) 243-1050 ~NSU~D ]OEL HAYS DBA ONCOURSE USA 2509 E, WINDSOR DENTON, TX 7620! THiS CERTIFICATE IS iSSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDEO BY THE POLiC{ES BELOW. iNSURERS AFFORDING COVERAGE Hartford Lloyds ][ns. Co. I INSURER E: COVERAGES THE POLICIES OF INSURANCE LIbel'ED BELOW P,6.VE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WiTH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL "~IE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH GENERALL~A~[LI[TY ~.DSDAKE4661-- BOP 09/25/2002 09/25/2003 E~CHOCCURREHCE $ 1~000,000 A PErson- ~ ADV INJURY ~ 1 ~ 000,000 ~E~EP~L A~EC, ATE ~ 2,000,000 CERTIFICATE HOLDER I I AOOmON~ rasuaEo; ri~sueER~.~"ree: __ CANCELLATION CJty Of Denton Kathy Avery 321 East McKJnney Denton, TX 76205 ACORD 25-8 (7~97) FAX: (940) 349-8384 ©ACORD CORPORATION 1988 Date: 12/4102 Time: 9:07 A~ To: Avery, Kathy ~ 940-349-63~ Page: 002-006 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certi[icate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of lesurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25-S (?/97) Date: 12/4/02 Time: 9:07 AM To: Avery, Kathy Page: 003-006 Add~tlona] Coverages and Factors 12/04/2002 Line of Business Coverages for General L~abil~ty Coverage Limits General Aggregate 2,000,000 Products/Completed Ops 2,000,000 Aggregate Personal & Advertising 1,000,000 Injury Each Occurrence 1,000,000 Fire Damage 300,000 Med~ca] Expense 10,000 Ded/Ded Type Rate Premium Factor