Req. #6619
RESOLUTION NO. -13906
WHEREAS the Tacoma Landfill Consent Decree required the City of
2 Tacoma to develop a Land Use Master Plan to develop potential uses for the
3
Landfill after closure, and
4
5 WHEREAS, during the plan development, the citizens of Tacoma were
6 afforded the opportunity to express ideas concerning activities they would like
7 to see on the Landfill and its adjacent property; the results of the public
8 involvement process indicated that Tacoma citizens desired golfing facilities at
9
the site, and
10
WHEREAS, with the closure of the Metropolitan Park District facility,
I 1
12 Golf Land, across the street from the Landfill, the Solid Waste Utility ("SWU")
13 believed it was an ideal opportunity to locate a golf facility on the property
14 adjacent to the Landfill, which, except for the northerly 200 feet, is surplus to
15 the needs of SWU, and
16
WHEREAS, in 1995, the City commissioned a Market Demand Study by
17
18 National Golf Foundation Consulting, Inc. (NGF) to evaluate the economics
19 and demographics of various types of golf facilities for the site; the NGF
20 considered several facilities for the site, including a 9-hole or 18-hole golf
21 course, and a driving range and practice facility, and
22 WHEREAS, based upon their recommendation and understanding of the
23
market, NGF believes the development of a first-class golf driving range and
24
25 learning center would be ideal for our location; the NGF believes that the
26
res661 9.doc-LCWAmhrJ1d 0@i
LEG 004 (11/89)
1, - W., @ @
I 28-acre piece of land owned by SWU in the southeastern portion of the Landfill
2 site appears to be the most stable area for the development of this project, and
3 WHEREAS, in May 1997, the City issued a Request for Proposals to
4 enter into a publiciprivate partnership with a firm who desired to design,
5
construct, and operate a first-class, regional golf driving range and learning
6
7 center on this land adjacent to the Tacoma Landfill, and
8 WHEREAS Eaglequest Golf Centers, Inc. (EGCI), a Vancouver, B.C.
9 based company with local offices in Kent, was determined to be the only
10 responsive proposer for the project, and
1 1
WHEREAS the Public Works Department established a Selection Team
12
13 to evaluate EGC1's qualification for this project. Because the Selection Team
14 was impressed with the quality of the EGCI team and the overall facility plan,
15 the Selection Team recommended the Public Works Department proceed with
16 negotiations for an operation agreement for the proposed facilities, and
17 WHEREAS EGCI proposes to construct a 5,000-square-foot pro shop
18
with a small deli, a 240-yard driving range with target greens and sand
19
20 hazards, 60 tee stations on two levels, a 10,500-square foot natural grass
21 chipping and puffing green area, a designated area for teaching and video
22 taping customers, and, possibly, an 18-hole, landscaped putting course, and
23 WHEREAS the proposed operation agreement and its attachments
24
outline the specific terms of the agreement with EGCI including, among other
25
items, a financial payment obligation to the City for the use of the property, and
26
res661 9.doc-LCWAmh/JW
LEG 004 (11/89)
the City's reservation of an easement to continue to operate the Landfill; this
2 easement reservation is similar to the one obtained in the sale of the Apartment
3 properties, and
4 WHEREAS staff recommends that the City enter into an operation
5
agreement with EGCI; Now, Therefore,
6
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF TACOMA:
7
8 That, except for the northerly 200 feet, the parcel of land adjacent to the
9 Landfill is surplus to the needs of the City's Solid Waste Utility and should be
10 developed and operated as a golf driving range and learning center.
I I
BE IT FURTHER RESOLVED that the proper officers of the City of
12
13 Tacoma are authorized to execute an Operation Agreement and its
14 attachments with Eaglequest Golf Centers, Inc. to design, construct, and
15 operate a first-class, regional golf learning center, said Agreement to be
16 substantially in the form of that docu with the City Clerk.
17 Adopted DEC 0 9 1qq7
Mayor
19
20 Attest: City Clerk
21 Approved as to form and legality:
22
23 Assistant City Attorney
24
25
26
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res661 9.doc-LCWAmhrj1d
LEG 004 (11/89)
CITY CLERK USE
REQUEST FOR O"INANCE Request
bcoma OR RESOLUTION Ordinance
@m
Resolution
1. DATE: September 23, 1997
2. REQUESTING DEPARTMENT/DIVISION/PROGRAM 3. CONTACT PERSON (for questions): PHONE/EXTENSION
Public Works/Solid Waste Utility Karen J. Larkin, P.E. 5525
4. PREPARATION OF THIS REQUEST FOR RESOLUTION IS REQUESTED FOR THE CITY COUNCIL MEETING OF
TUESDAY
5. SUMMARY TITLE/RECOMMENDATION: (A concise sentence, as it will appear on the Council Agenda)
Authorize the proper City officials to execute a 30-year Operations Agreement and Development Agreement with
Eaglequest Golf Centers, Inc., of Vancouver, British Columbia to design, construct and operate a first-class, regional
Golf Learning Center on property owned by the City adjacent to the Tacoma Landfill.
6. BACKGROUND INFORMATION/GENERAL DISCUSSION: (Why is this request necessary? Are there legal
requirements? What are the viable alternatives? Who has been involved in the process?)
The Tacoma Landfill Consent Decree required the City to develop a Land Use Master Plan. The purpose of the plan
was to develop potential uses for the landfill after closure. During the plan development the citizens of Tacoma were
afforded the opportunity to express what activities they would like to see on the property. The results of the public
involvement process indicated that Tacoma citizens desired golfing facilities at the site.
With the closure of the Metropolitan Park District facility, Golf Land, across the street from the landfill, the Solid
Waste Utility believed it was an ideal opportunity to relocate the facility to the landfill. In 1995, the City
commissioned a Market Demand Study by National Golf Foundation Consulting, Inc. (NGF) to evaluate the
economics and demographics of various types of golf facilties for our site. The NGF looked at a range of facilties for
the site including a 9 or 18-hole golf course, and a driving range and practice facility. Based upon their
recommendation and understanding of the market, NGF believes the development of a first class golf practice and
learning center would be ideal for our location. The NGF believes that the land owned by the SWU in the
southeastern portion of the landfill site appears to be the most stable area for the development of this project.
In May 1997, the City issued a Request for Proposals to enter into a Public/Private partnership with a firm who
desired to design, construct and operate a first class, regional golf driving range and learning center on this land
adjacent to the Tacoma Landfill. Eag1equest Golf Centers, Inc., a Vancouver B.C. based company with local offices
in Seattle and Kent was determined to be the only responsive proposer for the project. The Public Works
Department established a Selection Team to evaluate Eaglequest's qualification for this project. The Selection
Team was impressed with the quality of the Eaglequest team and the overal facility plan. The Selection Team
recommended the Public Works Department proceed with negotiations for an Operations Agreement for the
proposed facilities.
Eaglequest proposes to construct a 5,000 square foot pro shop with a small cafe, a 240 yard driving range with
target greens, water and sand hazards, 51 artificial mat tee stations, 12 natural grass tee stations, a 10,500 square
foot natural grass chipping and putting green area, a designated area for teaching and video taping customers, and
a 18-hole naturally landscaped putting course. The attached Operations Agreement prepared by our Legal
Department outlines the specific terms of the property lease to Eaglequest. The two major elements of this
Agreement include a financial payment obligation to the City for the use of the property, and the City's reservation of
an easement to operate the landfill. This easement reservation is similar to the one obtained in the sale of the
Apartment properties.
7. FINANCIAL IMPACT: (Future impact on the budget.)
This Agreement contains provisions for minimum lease payments plus a percentage of the gross revenues to be
paid annually to the Solid Waste Utility.
C: 11-p1m /-Ldot Office SystetnsS
8. LISTALLMATERIALAVAILABLEASBACKUPINFORMATIONFORTHEREQUESTANDINDICATEWHEREFILED:
Source Documents/Backup Material Location of Document
Tacoma Landfill Land Use Plan Public Works Department
Operations Agreement C I i-4 Cler'k' S a-VP cf@
Development Agreement C14L( C-lQ-rlC'S convince_
Request for Proposal Public Works Department
9. FUNDING SOURCE: (Enter amount of funding from each source)
Fund Number & Name: State $ city Other S Total Amount
4200 - SWU Operating Fund $0 $0 $0 $0
If an expenditure, is it budgeted? F-1 Yes F1 No Where? Org Acct N
App of Funds 411@
10. A
,:1temp1re-h,-1.dw Offi@ Systems13
TACOMA FIRS GOLF CENTER
OPERATION AGREEMENT
Between
The City of Tacoma
and
Eaglequest Golf Centers, Inc.
fA1cw\agmt\eag1op8.doc
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS1
ARTICLE 11
GRANT OF RIGHTS TO EGCI4
A. Surface Rights4
B. Title4
C. License5
ARTICLE III
TERM5
A. Term5
B. Option5
ARTICLE IV
DEVELOPMENT OBLIGATIONS OF EGCI6
A. Due Diligence6
B. Construction of Facility6
C. Contingencies7
ARTICLE V
FINANCIAL OBLIGATIONS OF EGCI7
A. Deposit7
B. Rent7
C. Utilities 1 1
D. Maintenance 1 1
E. Leasehold Excise Tax 1 1
ARTICLE VI
FINANCIAL OBLIGATIONS OF EGCI 1 1
A. General Obligations 1 1
B. Limitation on EGCI's Use 12
C. Programs for the General Public 1 2
D. Operation of the Tacoma Firs Golf Center 1 2
E. Personnel 1 3
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F. Maintenance Standards 13
G. Capital Improvements 15
H. Public Involvement 15
ARTICLE VII
OBLIGATIONS PERFORMABLE BY CONCESSIONAIRES 15
ARTICLE VIII
OBLIGATIONS OF THE CITY 16
A. Expeditious Review 16
B. Maintenance Inspections 16
C. Performance Evaluation 16
D. Air Monitoring 1 7
E. Maintenance of Buffer Area 1 7
ARTICLE IX
COMPLIANCE WITH LAW 17
A. General Requirements 17
B. Licenses and Other Authorizations 19
C. Special Use Permit 19
D. Equality of Treatment 19
ARTICLE X
DAMAGE OR DESTRUCTION 1 9
A. Destruction; Restoration by EGCI 1 9
B. EGCI's Right to Terminate 20
C. Lenders Claim on Insurance Proceeds 20
D. Abatement or Reduction of Payments 20
E. Insurance Proceeds 21
F. Agreement to Govern EGCI's Rights 21
ARTICLE XI
INSURANCE AND INDEMNIFICATION 21
A. Liability Insurance 21
B. Builder's Risk Insurance 23
C. Fire and Extended Coverage Insurance 24
D. Insurance Generally 25
E. Indemnification 25
F. Mutual Waiver of Subrogation Rights 25
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ARTICLE XII
DEFAULT AND REMEDIES 25
A. Notice of Breach and Termination 25
B. Immediate Termination by the City 26
C. Termination by EGCI 27
D. Termination Plan 27
ARTICLE XIII
ASSIGNMENT OF AGREEMENT 28
ARTICLE XIV
AUTHORITY TO ENTER INTO THE AGREEMENT 29
ARTICLE XV
NOTICE ADDRESSES 29
A. EGC1 30
B. The City 30
ARTICLE XVI
WAIVER 31
ARTICLE XVII
NO THIRD PARTY RIGHTS OR PARTNERSHIP CREATED 31
A. No Third Party Rights 31
B. No Partnership or Joint Venture 31
ARTICLE XVIII
GOVERNING LAW 32
ARTICLE XIX
DISPUTE RESOLUTION 32
A. Arbitration 32
ARTICLE XX
TABLE OF CONTENTS AND ARTICLE CAPTIONS 33
ARTICLE XXI
AMENDMENT 33
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ARTICLE XXII
COUNTERPARTS 34
ARTICLE XXIII
SEVERABILITY 34
ARTICLE XXIV
FORCE MAJEURE 34
ARTICLE XXV
EFFECTIVE DATE 35
ARTICLE XXVI
MISCELLANEOUS 35
A. Entire Agreement 35
B. Enforceability 35
C. Time 35
D. Conflict 35
E. Plan Review and Approval/Signage 35
F. Right to Construct and Operate Golf Center 36
G. Environmental Hold Harmless 36
H. Liquor License 36
1. Additional Golf Facilities 36
J. Gas Monitoring 37
K. Debris and Waste Material 37
L. Landfill Expansion 37
LIST OF EXHIBITS:
Exhibit A - Development Agreement
LIST OF ATTACHMENTS:
Attachment A - Legal Description of Property and Map
Attachment B - Legal Description of Landfill
Attachment C - Special Leasehold
Attachment D - Environmental Hold Harmless
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TACOMA FIRS GOLF CENTER OPERATION AGREEMENT
THIS TACOMA FIRS GOLF CENTER OPERATION AGREEMENT (the
"Agreemenr), dated as of I is by and between THE CITY
OF TACOMA (the "Cityw), a municipal corporation of the State of Washington,
acting by and through the Public Works Department Solid Waste Utility (uSWUN),
and EAGLEQUEST GOLF CENTERS, INC. ('EGCI"), a Washington corporation.
RECITALS
Pursuant to Specification No. G 030-97, the City issued a Request for
Proposals ('RFP') to determine the most qualified operator of a driving range at
the Property. EGCI issued a proposal dated June 24, 1997, (the uProposal"), and
EGCI was selected as a result of the RFP. Such RFP and EGCI's Proposal are
incorporated by reference except as modified herein. In accordance with
Section 4.6 of the City Charter, the Property upon which the project is to be
constructed and operated is surplus to the needs of the City, is adjacent to the
Tacoma Landfill, and is not necessary for the effective delivery of solid waste
disposal services.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises made herein,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
The following words and terms shall have the following meanings for the
purposes of this Agreement. Terms otherwise not defined herein shall be given
their usual and customary meaning.
uA_qreemenf means this Tacoma Firs Golf Center Operation Agreement,
including all attachments, appendices, schedules, and exhibits attached hereto
and any amendments hereto, between the City and Eaglequest Golf Centers, Inc.
"Approved" or "Approval' shall mean such review and/or approval that shall
not be unnecessarily or unreasonably withheld by the City.
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"Assistant Director" means the Assistant Director of the Public Works
Department.
"Available Revenues" of the Solid Waste Utility means those revenues not
otherwise obligated in the pledge of revenues set forth in Ordinance No. 26046.
"Build Out Period" means the period commencing with the Effective Date
and ending on the Opening Date of the Tacoma Firs Golf Center or the Project
Completion Date as defi ned in the Development Agreement, whichever is earlier.
"City" means The City of Tacoma.
'Clubhouse Sales Receipts" shall mean the receipts from the sale of golf
lessons and merchandise in the pro shop, the sale of food and beverages in the
deli, and all other operations of the Golf Center Facilities as limited by
Article VB2.
"Consent Decree" means that certain Consent Decree, as it has been or
may be in the future amended, originally entered into between the United States
of America, on behalf of the United States Environmental Protection Agency
("EPK) and the State of Washington Department of Ecology ('DOE'), et al. v. City
of Tacoma, dated March 25, 1991, U.S. District Court for the Western District of
Washington Case No. C 89-583T, including all attachments thereto.
"Departmenr means the Public Works Department of the City.
"Development Agreement' means the Tacoma Firs Golf Center
Development Agreement, attached hereto as Exhibit "A,' including all schedules
and exhibits attached thereto and all amendments thereto, which govern the terms
and conditions of development of the improvements constituting the Tacoma Firs
Golf Center between the City and EGCL
'Driving Range' means the golf driving range that will be constructed by
EGCI on the Property.
"Effective Date" shall have the meaning set forth in Article XXV below.
"EGCI" means Eaglequest Golf Centers, Inc.
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"Force Maieure" shall have the meaning as described to such term in
Article XXIV, below.
'Golf Center Gross Receipts" means all receipts received for buckets of
driving range balls sold or charges for the driving range, mini-puff course, and any
potential green fees as limited by Article V132.
"Golf Center Facilities' means those improvements, structures, and
facilities constructed by EGCI that are part of the Tacoma Firs Golf Center, but
exclusive of the real property that comprises the Driving Range.
"Lender" means that financial institution or corporate entity which loans
funds to EGCI to construct the Tacoma Firs Golf Center.
"Maintenance Standard' shall mean the maintenance standards set forth in
Section VI. F.
'NOI' is defined as Net Operating Income per Generally Accepted
Accounting Principles (GAAP) compliant financial statements before taxes,
interest, and depreciation for the Tacoma Firs Learning Center as required per
Article X11 Section C of this Agreement.
"Opening Date" shall mean the date the Tacoma Firs Golf Center opens for
business to the public.
"Property" means the real property upon which the Tacoma Firs Golf
Center shall be located. The Property is described in Attachment "A7 hereto.
'Tacoma Firs Golf Center" means the Driving Range and the Golf Center
Facilities to be constructed and operated by EGCI on the Property as further
legally described and identified in the map attached hereto as Attachment uA."
"Term" shall have the meaning set forth in Article III below.
'Term Yeae' means the period from January 1 through December 31 of
any calendar year; provided, however, for the first Term Year, if any portion of the
Golf Center Facilities opens for business on a day other than January 1 of any
calendar year, then the first Term Year shall be from such opening date through
December 31 of such year, and if the Term ends on a date other than the last day
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--------------------
of a calendar year, the last Term Year shall be the period beginning on January I
of such year and ending on the last day of the Term.
"TMC" means the Tacoma Municipal Code.
'Unamortized Cost" (current book value) is the original acquisition cost (the
$2,700,000 minimum investment or the actual cost to be provided to the City after
construction), adjusted for subsequent additional capital investments for physical
improvements and utility installations, less life to date accumulated depreciation
at a straight line rate based on an initial 30-year term.
ARTICLE 11
GRANT OF RIGHTS TO EGCI
A. Surface Rights. The City hereby grants to EGCl for the Term, and
upon the terms and conditions hereof, the exclusive right and privilege to use the
surface of the Property (and such subsurface portions of the Property as are
necessary to develop, construct, and operate the Tacoma Firs Golf Center on the
Property, including distribution of utilities, and footings and foundations for
improvements), and to construct and operate the Driving Range and the Golf
Center Facilities.
B. Title. The City warrants and represents that the City holds fee
simple title to the Property free and clear of all liens, encroachments,
encumbrances, easements, covenants, conditions, restrictions, rights-of-way, and
other exceptions to title. During the Term, the City shall not convey or transfer the
Property or create or allow to be created any leases, liens, encroachments,
encumbrances, easements, covenants, conditions, restrictions, rights-of-way, or
other exceptions to title; provided, however, the City may: (i) with EGCl's prior
written consent, which consent shall not unreasonably be withheld, grant
easements that do not adversely affect EGCl's use or operation of the Tacoma
Firs Golf Center or the Property, (fi) with reasonable advance notice to EGCI or
pursuant to schedules provided to EGCl, but without the requirement of obtaining
EGCl's prior written consent, have the right of access to the Property to monitor
methane gas conditions on the Property and to inspect, maintain and/or locate
and/or relocate facilities remediating or correcting same, provided that such
relocation shall be at the City's sole cost and expense. The City shall use its best
efforts to minimize any adverse effect upon EGC1's use or operation of the
Tacoma Firs Golf Center by reason of any such relocation or access, and the City
agrees to use reasonable efforts to undertake such relocation or related activities
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in a fashion so as to minimize interference to EGCI's operation of the Tacoma Firs
Golf Center or the Property. The City shall use reasonable efforts to cooperate
with EGCI in minimizing any adverse impact that may result from such relocation
of facilities remediating methane gas. By this grant, the City shall provide to EGCI
the exclusive possessory right to use of the Tacoma Firs Golf Center, subject to
the City's reasonable rights of access described herein, and throughout the Term,
EGCI shall enjoy the quiet possession of the Tacoma Firs Golf Center.
Notwithstanding the foregoing, the City reserves all rights to the Property below
the surface to the extent such subsurface use of the Property does not impact
EGCI's use or operation of the Tacoma Firs Golf Center and provided that such
subsurface use is reasonable. Subject to assets and Available Revenues of the
Solid Waste Utility, the City shall indemnify, defend, and hold harmless EGCI from
any activities conducted on the Property by the City or the City's use of the
Property (including easements granted by the City to third parties), and shall keep
the Property free from any mechanic's liens that may result from the City's use of
the Property. The City shall, at the City's sole cost and expense, correct any
damage to the Property or the improvements thereon caused by the City's use of
or activities on the Property (including from any easements granted by the City to
third parties).
C. License. The City hereby grants to EGCI for the Term, and upon
the terms and conditions hereof, the exclusive right to operate a ball rental
operation, a clothing sales operation, a golf equipment sales and rental operation,
and a food and beverage sales operation (hereinafter "Concession Operation").
ARTICLE III
TERM
A. Term. The rights granted to EGCI under this Agreement shall be in
effect from the date of execution of this Agreement until December 31, 2027 (the
"Term"), unless terminated earlier pursuant to the provisions hereof. For all
purposes herein, the anniversary date of this Agreement shall be January 1.
B. Option. EGCI shall have the right to extend the term of this
Agreement for an additional five (5) years upon delivering to the City a written
notice of such election to extend the Term, which election shall be made at least
twelve (1 2) months prior to the expiration of the Term of the Agreement.
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ARTICLE IV
DEVELOPMENT OBLIGATIONS OF EGCI
A. Due Diligence. Commencing with the Effective Date of this
Agreement, EGCI shall have the right, until December 3, 1997, to conduct a due
diligence inspection of the Property. During this period, EGCI shall have the right
to investigate the soils and other physical condition of the Property, to perform a
survey of the Property, and to study other aspects required for development of the
Property. Such investigation may include test borings into the soil. The City shall
provide to EGCI the right to copy all non-privileged information in the Solid Waste
Utility's possession concerning the Property, including actions taken to remediate
any conditions at the adjacent Tacoma landfill. At or prior to the expiration of due
diligence, EGCI shall notify the City as provided in Article XV of its approval or
disapproval of the physical condition of the Property. Failure to notify the City
shall be deemed approval of the physical condition of the property. If EGCI
disapproves the physical condition of the Property, then EGCI agrees to provide
the City with the right to copy any data concerning the Property EGCI obtained
pursuant to such investigation, and this Agreement shall be terminated and of no
further force and effect, and the City shall then promptly refund to EGCI the
$20,000 initial payment made by EGCI pursuant to Section V.A. 1 hereof. If EGCI
approves the physical condition of the Property, then, subject to certain specific
obligations of the City described herein and in the Tacoma Firs Golf Center
Development Agreement, EGCI shall construct the Golf Center Facilities in
accordance with the terms and conditions of the Tacoma Firs Golf Center
Development Agreement attached hereto as Exhibit uA" and incorporated by
reference herein. EGCI's acceptance of the physical condition of the Property
shall not be construed as a waiver of EGCI's rights and the City's obligations
described in Article IX Section A.3.
B. Construction of Facility. The RFP and the Proposal establish the
basic intent for design and development except as altered by specific provisions
of this Agreement. EGCI will construct a golf driving range and learning center in
accordance with designs to be approved by the Public Works Department no later
than January 5, 1998. The Driving Range will consist of a lighted 60-station,
two-tiered golf driving range (of which a minimum of 20 stations shall be heated)
and an attached golf center containing a minimum of 5,000 square feet of floor
area and incorporating a full service pro shop with demo clubs, Eaglequest
Learning Academy including video tape analysis, and a food and beverage
operation. Also included are natural grass short game practice areas with sand
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bunkers, and chipping and putting greens of a minimum I 0,000 square feet.
Parking will be provided for at least a minimum of 1.25 stalls for each tee station.
C. Contingencies. This lease is contingent upon EGCI obtaining the
necessary governmental permits to build the Golf Center Facilities and Driving
Range and contingent upon receipt of financing for the construction of such
improvements on or before February 28, 1998. For these contingencies to be
effective, EGCI must commence permit and loan application processes by
December 21, 1997. Proof of said permit and loan applications must be provided
to the Department.
ARTICLE V
FINANCIAL OBLIGATIONS OF EGCI
A. Deposit. Upon the Effective Date of this Agreement, EGCI will make
a refundable deposit to the City in the sum of $20,000. Such deposit shall be
credited to the first months' rent.
B. Rent. During the term hereof, Lessee shall pay to Lessor for the
right to use the Property and operate the Concession Operation the Minimum
Rent as defined in paragraph I below, or the Percentage Rent as defined in
paragraph 2 below, whichever is greater.
1 . Minimum Rent.
(a) During the Build Out Period, EGCI shall not be
obligated to pay any consideration or rent to the City.
(b) After the Opening Date, in annual installments as
provided below, EGCI shall pay to the City a minimum rental payment (the
"Minimum Rent") of $70,000 (which shall be pro-rated for any partial calendar
year period). At the end of every five (5) year period of the term of the Lease, the
minimum payment shall be adjusted upwards by any increase in the
Seattle-Tacoma Consumer Price Index for All Urban Consumers ("CPI") since the
beginning of the lease, not to exceed four (4) percent for each year. For instance,
if the CPl increased 2% in year one, 3% in year two, 4% in years three and four,
and 5% in year five, the minimum rent for the sixth through tenth year of the lease
would increase by 17%. The same process repeats itself every five years. The
beginning CPI shall be the CPI published nearest the Opening Date. If the United
States Department of Labor, Bureau of Labor Statistics, at any time during the
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f-Vcw\agmt\eag1ap8.doc
term of this Lease ceases to publish the Consumer Price Index for All Consumers
for All Items for Seattle-Tacoma, then the Consumer Price Index for All Urban
Consumers for All Items for cities with a population of 1,250,000 or more in the
Western United States, designated as "West-A" in the CPI Publication, shall be
used. If the United States Department of Labor, Bureau of Labor Statistics, at any
time during the term of this Lease ceases to publish the Consumer Price Index for
All Urban Consumers for All Items for both Seattle-Tacoma and cities with a
population of 1,250,000 or more in the Western United States, then the Consumer
Price Index for All Urban Consumers for All Items, U.S. City Average, designated
as 'U.S. City Average" in the CPI Publication, shall be used.
2. Percentage Rent. In the alternative, EGCI shall pay to the
City a "Percentage Rent" equal to the amount by which eight (8) percent of the
"Golf Center Gross Receipts" plus four (4) percent of the Clubhouse Sales
Receipts for each Term Year exceeds the amount of the Minimum Rent paid to
the City for the previous Term Year.
Such payments shall be made yearly, within sixty (60) days after each year
based upon the receipts from the previous calendar year. There shall be
excluded from Golf Center Gross Receipts and Clubhouse Sales Receipts the
following:
(a) Goods returned to suppliers.
(b) Monies and or credits received in settlement of claims
for loss or damage to goods, wares, food, or merchandise.
(c) Amounts paid to golf professionals for salaries and
commissions paid exclusively for teaching lessons.
(d) The amount of cash refunded or credit allowed on
merchandise returned by customers and accepted by EGCI (including
merchandise returned to other stores of EGCI or its affiliates), or the amount of
cash refunded or credit allowed in lieu of EGCI's acceptance therefor.
(e) All sales taxes, admissions taxes, use taxes, so-called
luxury taxes, entertainment taxes, value added taxes, excise taxes including any
leasehold excise tax on the transfer of the improvements, which are estimated to
total approximately $2.7 million, gross receipts taxes, and similar taxes, whether
f.VcW\agmt\eag1op8.doc
imposed under any existing or future rules, regulations, laws, or ordinances, upon
the sales of merchandise or services, whether or not such taxes are added
separately to the selling price thereof and collected from customers or are paid by
EGCI and included in the retail selling price, but shall not include taxes based on
income.
(f) Delivery freight charges for food and pro shop
operations (but not for other golf center operations).
(g) Any receipts from the transfer of goods, wares, or
merchandise from the Tacoma Firs Golf Center to any other store owned by EGCI
or an affiliate of EGCI, as in an "accommodation sale" as defined in Rule 208
pursuant to RCW 82.04.
(h) Bad debts and bad checks.
(i) Receipts from the sale of lottery tickets, except for the
profits from the sale thereof (i.e., the profits from the sale of lottery tickets shall be
included in Clubhouse Sales Net Receipts).
0) Receipts from discounted clothing and equipment
sales to employees at an amount not to exceed IO percent of total sales.
(k) Proceeds from the sale of equipment or of all or of a
substantial part of EGCl's stock-in-trade and merchandise at a sale other than at
retail, or the sale of the business as a whole, including, but not limited to, all rights
associated with the assignment of this Operation Agreement (provided, however,
the right to sell equipment shall not affect EGCl's obligation to deliver the Golf
Center Facilities to the City in the condition described in Section XII.B.3).
(1) Proceeds from the sale of gift certificates, or like
vouchers, until such time as the same shall have been converted into a sale by
redemption. Said conversion must occur within two years from the date of the
certificate's or voucher's issuance.
4. Annual Statement. Within sixty (60) days following the last
day of each Term Year, EGCl shall furnish City a statement of EGCl's annual
Tacoma Firs Golf Center Gross Receipts made during the previous Term Year, or
any partial Term Year, including any authorized deductions ('Annual Statement
Such Annual Statement shall be certified as correct by an authorized officer of
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EGCI. With each Annual Statement EGCI shall pay to City the amount of any
additional Percentage Payment that is payable to City. Once with respect to each
Term Year and within two (2) years after its end, whether during or after the Term,
the City may cause an audit of EGCI's business at the Tacoma Firs Golf Center
by an independent accountant of the City's own selection, and if any Percentage
Payment for the Term Year made by EGCI to City is found to be more than
4 percent less than the amount of EGCI's actual Percentage Payment obligation
for the period covered by the applicable Term Year, EGCI shall immediately pay
to the City the cost of the audit and any additional Percentage Payment shown to
be payable by EGCI; otherwise, the cost of this audit shall be paid by the City.
EGCI's failure to provide to City any Annual Statement at the time and in the
manner specified in this Agreement shall constitute a default under this
Agreement, and City shall have the right, after providing EGCI thirty (30) days'
notice and opportunity to cure such default, to conduct an audit to determine
these receipts, and EGCI shall immediately reimburse the City for the reasonable
cost of the audit on written demand by the City. In annualizing the Percentage
Payments due, there shall be appropriate prorations and adjustments to take into
consideration the dates on which the Build Out Period and Initial Operating Period
commences and ends and the obligations for Minimum Rent and Percentage Rent
during such periods.
5. The Annual Statement shall include the following information
in a form and format to be agreed upon by the parties:
Driving Range - Annual Gross receipts and number of buckets sold.
Food and Beverage - Annual Gross Receipts.
Pro Shop Sales - Annual Gross Receipts.
Lessons - Annual Gross Receipts, less amounts paid to golf pros.
As provided above, EGCI shall also provide an unaudited financial statement of
the revenues and expenses from the Tacoma Firs Golf Center, certified as true
and correct by the chief financial officer or other equivalent or higher ranking
officer of EGCl. In addition, EGCI shall deliver to the City annually a copy of
EGCI's annual financial statement, certified to be accurate by an officer of EGCI.
C. Mirifies. On the Effective Date of this Agreement, the City shall
transfer all utility accounts associated with the Tacoma Firs Golf Center to EGCI.
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The City covenants that such accounts shall have a zero balance due upon such
transfer to EGCI. EGCI shall pay, before delinquency, all charges incurred for or
in connection with the providing of telephone service, electricity, gas, oil, water,
sewer (storm and sanitary), garbage collection, and any other utility to or for the
Tacoma Firs Golf Center.
D. Maintenance. EGCI is responsible for paying for all maintenance
necessary to keep the Tacoma Firs Golf Center maintained to the standards set
forth in Section VI. F.
E. Leasehold Excise Tax. The City shall pay any and all leasehold
excise taxes which are due and owing as a result of the Minimum Rent or
Percentage Rent paid by EGCl. The City shall have the right to determine which
payments are "contract rent" as that term is defined under Chapter 82.29A RCW
and received for a lease of public property and which payments have been paid
for the Concession Operation. The City shall also indemnify, defend and hold
EGCI harmless from any deficiency in the leasehold excise tax obligation if such
is levied by the Washington State Department of Revenue.
EGCI shall pay any and all leasehold excise taxes due and owing as a
result of the transfer of the improvements to the City upon the end of the Build Out
Period.
ARTICLE VI
OBLIGATIONS OF EGCI
A. General Obligations. EGCl's goal is to offer quality playing
conditions at reasonably competitive prices on the Tacoma Firs Golf Center,
through the following:
1 . A management philosophy that emphasizes sound business
principles and common sense;
2. Payment to the City of its financial obligations;
3. Reinvestment of funds into the Driving Range, Golf Center
Facilities, and golf programs necessary to maintain facilities and programs; and
4. Diversity in the areas of staff, programs, participants, and
community as required by law.
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B. Limitation on EGCl's Use. EGCI shall not have the right to construct
any improvements on the Property or to use the Property for any purpose except
as generally described by EGCI in the Proposal, and except for any incidental
purposes directly related to the uses described in EGCI's Proposal unless
approved by the City.
C. Programs for the General Public. Except as otherwise specifically
provided in this Agreement, EGCI shall provide programs, classes, and events at
the specific Tacoma Firs Golf Center in accordance with the Marketing Plan dated
October 28, 1997, and delivered to the City. Said Marketing Plan may be
amended from time to time by EGCI in its reasonable discretion, provided the
original intent and standards of the Marketing Plan are preserved. EGCI shall
deliver said amendments within thirty (30) days of their adoption. Unless as
otherwise approved by the Department, the requirements, specifications, and
standards set forth in the Marketing Plan dated October 28, 1997, shall be
deemed to be the minimum acceptable performance for operation of the Tacoma
Firs Golf Center.
D. Operation of the Tacoma Firs Golf Center. Except as otherwise
specifically provided in this Agreement, EGCI shall operate the Tacoma Firs Golf
Center in accordance with the Operating Procedures Manual dated October 28,
1997, and delivered to the City. Said Manual may be amended from time to time
by EGCI in its reasonable discretion, provided the original intent and standards of
the Manual are preserved. EGCI shall deliver said amendments to the City within
thirty (30) days of their adoption. Unless as otherwise approved by the
Department, the requirements, specifications, and standards set forth in the
Manual dated October 28,1997, shall be deemed to be the minimum acceptable
performance for operation of the Tacoma Firs Golf Center. Subject to force
majeure, EGCI agrees that, once the Golf Center Facilities are completed,
weather permitting, they shall be open a minimum of eight (8) hours every day of
the year; provided, however, EGCI shall have the right to close the Golf Center on
Christmas Day and Thanksgiving Day, and to close the facilities for temporary
periods with the approval of the City when such closure is required for
extraordinary maintenance and repair.
E. Personnel. EGCI shall employ the following personnel to operate
the Tacoma Firs Golf Center:
1 . General Manager;
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2. Head golf professional (PGA or LPGA Class A);
3. Greens Superintendent who is a Class A member of the
GCSAA;
4. Manager experienced in food and beverage services.
Such personnel may be part-time or full-time and work at other
Eaglequest sites.
F. 'Maintenance Standards. EGCI recognizes that, although it is
operating its facilities as an independent operator for profit, the City's Public
Works Department Solid Waste Utility Division is organized and exists for the
purpose of operating a solid waste management facility for the use of the general
public. Concurrently, on surplus land, the City wishes to allow for the
development of a first-class Driving Range and Golf Center Facility for the use
and enjoyment of the public. Therefore, EGCI has developed an Operating
Procedures Manual (subject to the review and approval of the City, which
approval shall not be unreasonably withheld) for the Golf Center's agents and
employees and will devote their best reasonable efforts toward providing safe,
clean, sanitary, and well-maintained facilities. EGCI will undertake the following
activities to ensure the driving range and its facilities are maintained in a good
state of repair at all times:
1 . Security Services. EGC I shall be responsible for opening and
closing/locking the gates and doors when the Driving Range and Golf Center
Facilities are opened or closed to the public. EGCI shall be responsible for
providing any and all security services, equipment, or devices to monitor and
protect the Tacoma Firs Golf Center against vandalism, theft, or fire.
2. Custodial Maintenance EGCI shall, at its own expense, at all
times, keep the Property in a very neat, clean, safe, and sanitary condition. EGCI
shall develop daily, weekly, monthly, and annual cleaning schedules and ensure a
supply of toilet tissue, soap, paper towels, and cleaning supplies/materials are
available at all times to maintain the facilities in a proper operating condition for
public use.
3. Preventive Maintenance. EGCI shall conduct periodic
inspections of all buildings, equipment, fixtures, grounds, and structures and, at
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its own expense, take action to ensure repairs and maintenance are carried out to
restore all site improvements to their original condition, normal wear and tear
notwithstanding. Examples of such maintenance would include replacement of
worn carpeting, replacement of broken windows, patching of asphalt pathways,
and replacement of broken irrigation heads. These maintenance activities are
intended to bring and keep the Tacoma Firs Golf Center in or to a satisfactory
state of repair or maintenance without the need to replace the entire facility (if
such repair or maintenance work is or can be accomplished in a satisfactory
manner).
4. Maior Maintenance. Any maintenance activity not addressed
under custodial or preventive maintenance is addressed under this category.
EGCI shall, at its own expense, make all repairs and conduct all maintenance of
whatever nature determined by EGGI and/or by the City reasonably to be
necessary to maintain or restore the structures on the Tacoma Firs Golf Center
site in good condition and repair, normal wear and tear withstanding (subject to
the provisions of Article X hereof). EGCI has total responsibility for building
maintenance, equipment maintenance, and grounds maintenance to include, but
not be limited to, repair and maintenance of the roofs (and replacement, if
necessary), HVAC systems, utility systems, structural systems, irrigation and
drainage systems, cart paths, parking lots, lighting, synthetic and natural turf,
driving range netting and poles, trees, restrooms, restaurant equipment, windows,
and virtually all improvements to the Tacoma Firs Golf Center. This provision
clearly acknowledges the awareness by both parties that from time to time
improvements made to the Property (such as the driving range netting as
example) will wear out and will need to be removed and replaced in' their entirety
to restore that particular feature to their original good condition, normal wear and
tear notwithstanding. EGCI will ensure that it has sufficient funds in reserve to
address these maintenance needs as they arise, in a timely and satisfactory
manner.
In the event of a dispute over whether EGCI is properly maintaining the
Tacoma Firs Golf Center, EGCI and the City shall, after first attempting to resolve
the dispute through the Assistant Director, submit such dispute to binding
arbitration in accordance with the provision of Article XIX hereof.
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G. Capital Improvements
1. Desiqn Review. EGC1 shall submit to the Department for its
review and approval any plan and specifications for any capital improvement
project in excess of $50,000. Said approval shall not be unreasonably withheld.
2. City Capital Improvements. The City shall not construct
capital improvements located on the Property, whether or not such improvement
is related to the function or operation of the Tacoma Firs Golf Center, without the
prior written consent of EGCI, which consent shall not be unreasonably withheld.
3. Ownership of Capital Improvements. Upon the occurrence of
the end of the Build Out Period, expiration of this Agreement or its earlier
termination pursuant to this Agreement, whichever is sooner, ownership of the
capital improvements of the Tacoma Firs Golf Center consisting of physical
improvements and utility installations shall pass to the City at no cost. Such
capital improvements do not include EGCI's business and trade fixtures, furniture,
personal property, movable partitions, machinery and equipment, other than that
which is affixed to the Property so that it cannot be removed without material
damage to the Property. Such improvements shall be transferred to the City in an
"as is condition' consistent with the use of the Improvements.
H. Public Involvement. Annually, at the time it provides the City with its
annual report, EGCI shall provide written and oral reports to the Assistant Director
concerning the operation of the Tacoma Firs Golf Center over the previous year.
EGCI shall provide a written response to the Department on any comments
received concerning these reports.
ARTICLE VII
OBLIGATIONS PERFORMABLE BY CONCESSIONAIRES
EGCI may only subcontract any of its obligations under this Agreement with
the express written approval of the Department, which shall not unreasonably be
withheld or delayed. EGCI shall provide all information reasonably requested by
the City in order to make its determination. Notwithstanding the foregoing, EGCI
shall remain ultimately responsible for the proper performance of all such
obligations.
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ARTICLE Vill
OBLIGATIONS OF THE CITY
A. Expeditious Review. The Department shall expeditiously complete
any reviews required under this Agreement, which, in no event other than an
emergency or permit reviews, shall be less than fifteen (I 5) days.
B. Maintenance Inspections.
1 . The City, at its own cost, shall conduct periodic major,
preventive, and custodial "maintenance" inspections of the structural, mechanical,
heating, plumbing, and utility systems. Inspections will also be conducted on
such areas as driving range, netting, synthetic turf, irrigation systems, building
siding and roofing, lighting, floor covering, restroom as well as course
maintenance standards and conditions. Such major and preventive maintenance
inspections are intended to keep the Tacoma Firs Golf Center up to the same
good conditions as when installed, normal wear and tear notwithstanding.
Inspection of any of the above areas does not limit inspections to those identified
areas only. Inspections are to include any and all improvements made to the
Property by EGCl. Such inspections in no way reduce or eliminate EGC1's
obligation to conduct its own inspections and to maintain the Tacoma Firs Golf
Center in as good a condition as when built. City personnel will have the right to
access the Property, at reasonable times, following reasonable notice to EGCI, to
conduct such inspections. Such right of access to the Property for inspection
purposes will not be unreasonably withheld by EGCl.
2. If the City provides EGCI a written inspection letter identifying
needed maintenance work (agreed to by EGCl), EGCI shall take action and
remedy the maintenance deficiency. If such work requires immediate attention, as
with an emergency, such action shall be taken, but, in any event, all maintenance
work shall be completed no later than thirty (30) days as required by Article X11.
However, if the maintenance work will adversely impact peak season operations
or will require more than a $2,000 expenditure, EGCI may propose (in writing) an
alternate date for the work to be completed. In the event of a dispute over these
issues, the parties shall seek to resolve such dispute through arbitration as
provided in Article XIX
C. Performance Evaluation. The City shall also monitor and evaluate
EGC1's performance under and for compliance with the terms of this Agreement.
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D. Air Monitoring. Pursuant to its regular program of ambient air
monitoring at locations around the Tacoma Landfill, once the Golf Center is
constructed, the City shall monitor the ambient air at the Golf Center three (3)
times per week. Such data will be available upon request by EGCI and the public.
E. Maintenance of Buffer Area. The City shall maintain the 200 foot
buffer area north of the Golf Center Facilities consistent with the fact that this area
represents the primary view corridor for all of the customers of the Driving Range.
The City shall hydroseed the south side of the large mound of dirt which is visible
from the Driving Range. The City will remove prior to the Commencement Date
all debris, dumpsters, buses, and other vehicles located on the Property, and not
allow storage of vehicles on the Property within view of the customers.
ARTICLE IX
COMPLIANCE WITH LAW
A. General Requirements.
1. EGCI, at no cost to the City, shall perform and comply with all
applicable, current, and future laws of the United States, the State of Washington,
the Charter and Municipal Code of the City of Tacoma, and rules, regulations,
orders, and directives of their administrative agencies and the officers thereof.
Whenever EGCI is informed of any violation of any such law, ordinance, rule,
regulation, license, permit, or authorization committed by it or any of its officers,
employees, contractors, subconcessionaires, agents, or invitee, EGCI shall
immediately desist from and/or prevent or correct such violation.
2. Notwithstanding the foregoing, if any statute, order, rule, or
regulation of general applicability (such as the Americans with Disabilities Act and
its implementing regulations) passes within the last seven (7) years of the Term,
requiring EGCl to make any major capital improvements during the last seven (7)
years of the Term, and EGCI in good faith determines that it would not be
economical to construct such major capital improvements, then EGCI shall have
the right to terminate this Agreement in lieu of constructing such major capital
improvements (which election shall be made by EGCl at least sixty (60) days prior
to the date that EGCI would become obligated to construct such improvements),
unless the City agrees to extend the Term of this Agreement by five (5) additional
years on the same terms and conditions otherwise provided in this Agreement.
For purposes of this Agreement, major capital improvements shall not include any
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major maintenance. Any capital improvement that would cost $1 00,000 or more
(in 1997 dollars, adjusted for increases in the CPI), shall be deemed to be a
"major capital improvement."
3. Notwithstanding the foregoing, EGCI shall not be required to
construct any improvements or alterations thereto, or to remedy any
environmental condition as a result of the adjacent Tacoma Landfill, or to
remediate any methane gas, soils, groundwater, or hazardous or toxic materials
that may, as a result of the Landfill, exist on the Tacoma Firs Golf Center
Property, and the City shall be solely responsible, at the City's cost, of performing
any such remediation required by law. EGCI shall be responsible for hazardous
materials introduced to the Property by EGCl. Nothing contained herein shall be
construed as imposing any liability upon EGCI on account of increased levels of
methane gas, contaminated soils, groundwater, hazardous or toxic materials that
may have resulted from natural conditions or increases thereof that have occurred
as a result of EGCI's development of the Tacoma Firs Golf Center. Subject to
assets of and available revenues from the Solid Waste Utility, the City shall
indemnify, defend, and hold EGCI harmless from any losses, including lost profits
(not to exceed the reasonable rate of return on investment as defined in Article XII
Section C), costs, expenses, or liabilities resulting from the presence of any
methane gas, contaminated soils or groundwater, or other hazardous or toxic
materials on the Property that arose from the adjacent Landfill site, are above the
levels of the chemicals of concern set forth in the Consent Decree and which
negatively affect the use and enjoyment of the Tacoma Firs Golf Center. No
general indebtedness shall be incurred.
In the event EGCI is made aware of any problem concerning the hazardous
materials produced by the Tacoma Landfill and the operations of the Tacoma
Landfill above the levels of the chemicals of concern as set forth in the Consent
Decree which negatively affect the use and enjoyment of the Tacoma Firs Golf
Center, EGCI shall immediately notify the City of such problem. The City shall
take immediate action to correct the problem consistent with the obligations of
Article 11 above. In the event EGCI is unable to operate Tacoma Firs Golf Center
at its Reasonable Potential for a period of three (3) months because of such
problems, it shall be considered a default by the City and subject to the terms of
Article X11 below. Not operating at Reasonable Potential shall be defined as,
despite offering substantially the same services and merchandise, the Golf Center
Facilities generate sales of 12.5% less than from the same calendar period of the
previous year.
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B. Licenses and Other Authorizations. EGCI, at no cost to the City,
shall secure and maintain in full force and effect during the Term, all required
licenses, permits, and similar legal authorizations, and comply with all
requirements thereof. EGCI shall submit to the Public Works Department
evidence of EGCI's satisfaction of all such requirements prior to the
commencement of any construction work at the Property with respect thereto.
EGCI shall be responsible for payment of all fees and charges incurred in
obtaining such approvals and for obtaining a certificate of occupancy prior to
opening the Golf Center Facilities for business.
C. Special Use Permit. EGCI acknowledges that it must comply with all
conditions of the special use permit currently affecting the Property at the time of
construction of any Capital Improvements. Said conditions include, but are not
limited to, widening the pavement on Tyler Street and restriping it to designate a
"left turn pocket" on Tyler Street. Additionally, EGCI must construct a
five-foot-wide gravel walkway. At some future time, when the City widens Tyler
Street, the City shall construct the street, curb and gutter, and sidewalks to
replace the gravel walkway.
D. Equality of Treatment. EGCI shall conduct its business in a manner
that assures fair, equal, and nondiscriminatory treatment at all times in all
respects to all persons without regard to race, color, religion, sex, age, national
origin, or the presence of a physical or mental disability.
ARTICLE X
DAMAGE OR DESTRUCTION
A. Destruction; Restoration by EGCI. Subject to the provisions of
Sections X.B and XC hereof, if the Tacoma Firs Golf Center is damaged or
destroyed during the Term by a casualty covered by EGCI's fire and extended
coverage insurance, then EGCI shall restore the Tacoma Firs Golf Center to
substantially the same condition as it was in immediately before such damage or
destruction utilizing the proceeds of such insurance. EGCI shall also be
responsible for the amount of any deductible. EGCI shall restore the Golf Center
Facilities and re-open the Tacoma Firs Golf Center for business within a
reasonable period of time following the casualty, taking into account the
reasonable time required to receive the insurance proceeds, assess the scope of
the casualty, prepare plans and specifications for rebuilding, obtain permits, enter
into a construction contract, obtain materials, and similar factors.
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B. EGCl's Right to Terminate. If the Tacoma Firs Golf Center is
damaged or destroyed during the Term by a casualty, and (i) such casualty is not
covered by EGCl's full replacement fire and extended coverage insurance, or (ii)
the casualty occurs during the last five (5) years of the Term, then EGCI shall
have the option of either repairing and reconstructing the Tacoma Firs Golf
Center or of terminating this Agreement. If EGCI elects to repair and reconstruct,
EGCI shall promptly do so.
To exercise the right of termination described in this subsection,
EGCI must comply with all of the following conditions:
(i) Give City notice of termination within sixty (60)
days after the damage or destruction, specifying the date of termination which
shall be not less than sixty (60) days nor more than one hundred eighty (1 80)
days after the date such notice of termination is given;
(ii) Continue to make all Percentage Rent payments
when due (Minimum Rent being abated during this period as provided in
Section XD below), if any, as required by the provisions of this Agreement until
the date of termination, if EGCI continues to use the Tacoma Firs Golf Center
after the casualty but prior to the date of termination;
(iii) On or before the termination date, deliver
possession of the Tacoma Firs Golf Center to City, quitclaim all right, title, and
interest in the Tacoma Firs Golf Center to City, cease to do bus iness on the
Tacoma Firs Golf Center, and vacate the Tacoma Firs Golf Center.
C. Lender's Claim on Insurance Proceeds. Notwithstanding the
provisions of Section XA, if any lender of EGCI has an interest in the insurance
proceeds and such lender does not make all the insurance proceeds available to
EGCI for rebuilding but requires all or a portion thereof to be used to repay the
lender's loan, then EGCI shall have the right to terminate this Agreement.
D. Abatement or Reduction of Payments. In case of any damage or
destruction under this Article, all Minimum Rent and other charges hereunder,
shall abate until the Tacoma Firs Golf Center is fully restored and open for
business, and any Minimum Rent and other charges paid in advance shall be
pro-rated from the date of the casualty through the date of reopening. If EGCI
continues to conduct business from the Tacoma Firs Golf Center from temporary
facilities or temporary structures, then EGCI shall be liable only for the
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Percentage Payments (no Minimum Rent) during such period, and appropriate
prorations shall be made by the parties.
E. Insurance Proceeds.
1. If EGCI is obligated or elects to restore the Tacoma Firs Golf
Center pursuant to this Section, the proceeds of any insurance maintained under
this Agreement shall be the property of EGCI and used for payment of costs and
expenses of restoration and repair of the Tacoma Firs Golf Center, and the
balance, if any, remaining after completion of such repair and restoration shall be
the property of EGCI.
2. If following a casualty this Agreement is terminated as a result
of the circumstances described in Sections X. B or X. C, then the insurance
proceeds shall first be paid to EGCI's lenders to the extent of amounts due EGCI's
lenders on account of the lenders' loans or otherwise required to pay off such
loans in full, and the balance of any insurance proceeds remaining shall be
delivered to the City.
F. Agreement to Govern EGCI's Ri-ghts. EGCI and the City agree that
EGCI's and the City's rights in case of destruction shall be governed solely by the
provisions of this Agreement.
ARTICLE XI
INSURANCE AND INDEMNIFICATION
A. Liability Insurance. Throughout the Term, EGCI shall take out and
maintain, at no cost or expense to the City, the insurance described below. Such
insurance shall name the City as an additional insured. Such policy shall be filed
with the City's Risk Manager twenty (20) days prior to the commencement of this
Agreement (and 20 days prior to policy(ies) renewal). Said policy(ies) (1) shall be
subject to approval by the City's Risk Manager as to Company, Form, and
Coverage, and primary to all other insurance the City may secure, and (2) must
protect the City from any and all claims and risks in connection with any activity
performed by EGCI, or any of their respective officers, employees, agents,
contractors, or assigns, by virtue of this Agreement or any use and occupancy
Tacoma Firs Golf Center as authorized by this Agreement.
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1. A policy of Commercial General Liability Insurance, written on
an occurrence form, rather than a uClaims Made" form, including all the usual
coverages known as:
-Premises/Operations Liability
-Products/Completed Operations
-Personal/Advertising Injury
-Contractual Liability
-Owners and Contractors Protective Liability
-Stop Gap or Employers Contingent Liability
-Liquor Liability (if applicable)
Such policy(ies) shall provide the following minimum limit:
$2,000,000 per occurrence
$5,000,000 annual aggregate
A deductible or self-insured retention of no more than Two Thousand Five
Hundred Dollars ($2,500) for property damage only is acceptable.
2. A policy of Business Automobile Liability, including coverage
for owned, non-owned, leased, or hired vehicles. Such policy(ies) must provide
the following minimum limit:
Bodily Injury and Property Damage
$ 1,000,000 per accident
Said insurance policy(ies) and subsequent renewals must be maintained in full
force and effect, at no expense to the City, throughout the entire term of this
Agreement.
Such insurance shall be endorsed to include the City of Tacoma, its officers,
elected officials, employees, agents and volunteers as an Additional Insured.
The following documents must be provided as evidence of insurance coverage:
(a) A copy of the policy's declarations pages, showing the
policy effective dates, limits of liability and the Schedule of Forms and
Endorsement.
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(b) A copy of the endorsement naming the City of Tacoma
as an Additional Insured, showing the policy number and signed by an authorized
representative, on Form CG2026 (ISO) or comparable.
(c) A copy of the Endorsements Form" to the policy which
shows endorsements issued on the policy, and which include any
company-specific or manuscript endorsements.
(d) A copy of the endorsement stating that 'The coverages
provided by this policy to the City or any other named insured shall not be
terminated, reduced, or otherwise materially changed without providing at least
forty-five (45) days prior written notice to the City of Tacoma."
(e) A copy of the endorsement stating that "Separation of
Insureds" or useverability of interests" clause indicating essentially that "except
with respect to the limits of insurance, and any rights or duties specifically
assigned to the first named insured, this insurance applies as if each named
insured were the only named insured, and separately to each insured against
whom claim is made or suit is brought."
At the request of the City, EGCI shall provide the City with a copy of the
applicable insurance policies.
Such insurance policies shall be subject to Approval by the City Risk Manager as
to company, form, and coverage. The insurance carrier shall be rated A-:VII or
higher in the A.M. Best's Key Rating Guide, licensed to do business in the State
of Washington, or be filed in the State of Washington as surplus lines by a
Washington Surplus Lines Broker. EGCI shall provide for the prompt and efficient
handling of all claims for bodily injury, property damage, or theft arising out of the
activities of EGCI under this Agreement. EGCI shall ensure that all such claims,
whether processed by EGCI or EGCI's insurers), either directly or by means of an
agent, will be handled by a person with a permanent office in the Seattle/Tacoma
area.
B. Builders Risk Insurance. Before commencement of any
construction work on the Tacoma Firs Golf Center, EGCI shall also procure or
cause to be procured, and shall maintain in force until completion of said work (i)
Uall risk" builders risk insurance, including coverage for vandalism and malicious
mischief, in a form and amount and with a company reasonably acceptable to the
City, and (ii) contractors workers' compensation insurance covering all persons
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employed in connection with work on the Driving Range and Golf Center. Said
builder's risk insurance shall cover improvements in place and all material and
equipment at the job site furnished under contract, but shall exclude contractors',
subcontractors', and construction managers' tools and equipment and property
owned by contractors' and subcontractors' employees.
C. Fire and Extended Coverage Insurance. EGCI, at its sole cost and
expense, shall keep the buildings and all other improvements (which value shall
be determined by EGCI annually and identified in a notice to the Public Works
Assistant Director provided no later than March 1 of each year) on the Tacoma
Firs Golf Center throughout the term of the Agreement against the following
hazards:
1 . All Risk Property Coverage (including earthquake and flood
damage) and including Real and Personal Property, Business Interruption and
Extra Expense, in an amount sufficient to permit such insurance to be written at all
times on a replacement cost basis (excluding from the replacement cost the value
of the footings and foundations) or in the case of Business Interruption, sufficient
coverage to ensure that EGCI can pay all of its fixed costs during any interruption
of EGCI's business.
2. Loss or damage from leakage or sprinkler systems now or
hereafter installed in any building on the Tacoma Firs Golf Center.
3. Loss or damage by explosion of steam boilers, pressure
vessels, oil or gasoline storage tanks, or similar apparatus now or hereafter
installed in a building or buildings on the Tacoma Firs Golf Center.
The policy(ies) shall be in the name of City and EGCI, as their
interest may appear, and a copy of said policy(ies) shall be delivered to City
before commencement of this Agreement. In the event of any loss, damage, or
casualty which is covered by one or more of the types of insurance described in
this Section C above, the parties to this Agreement shall proceed cooperatively to
settle the loss and collect the proceeds of such insurance. If EGCI is obligated or
has the option (and such option is exercised) under this Agreement to repair or
reconstruct, any proceeds of insurance shall be payable to EGCI, and may be
used for repair and reconstruction of the Tacoma Firs Golf Center, subject to any
requirements as to the disposition of the proceeds that may be imposed by the
beneficiary under any mortgage or deed of trust at any time encumbering the
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Tacoma Firs Golf Center (subject to the limitations of Article XIII hereof); in all
other events, all proceeds shall be payable to the City.
D. Insurance Generally. All such policies required by this Section shall
be nonassessable and shall contain language to the effect that (i) the policies
cannot be canceled or materially changed except after forty-five (45) days'written
notice by the insurer to the City, and (ii) the City shall not be liable for any
premiums or assessments. Notwithstanding anything contained to the contrary in
this Article, EGCI may provide this insurance through a so-called blanket policy or
policies of insurance carried and maintained by EGCI. EGCI shall be allowed to
provide all insurance through a blanket policy of insurance covering other sites of
EGCI and its affiliates. None of the above policies shall be cancelled or materially
altered except after forty-five (45) days' written notice to the Department.
E. Indemnification. EGCI agrees to indemnify, defend, and hold
harmless the City from and against any and all claims, suits, actions, proceedings,
economic loss, liability, damage, cost, or expense of any kind (including
reasonable attorneys'fees and expenses associated therewith or with
successfully establishing the right to indemnification hereunder) ('Damages')
resulting from or arising out of the Tacoma Firs Golf Center, or the operations
thereof. Notwithstanding the foregoing, EGCI shall not be obligated to indemnify,
defend, or hold City harmless from any Damages to the extent caused by any act,
omission, or breach of this Agreement by City, City's agents, employees, or
contractors, or arising out of the condition of the Tacoma Firs Golf Center prior to
the commencement of the Term.
F. Mutual Waiver of Subrogation Rights. EGCI and City hereby
mutually release each other from all liabilities and claims and waive all rights of
recovery against each other for and to the extent of their respective property
insurance coverages for such liabilities and claims, including any extended
coverage and endorsements thereto; provided, however, that this release and
waiver shall be inapplicable if it would have the effect, but only to the extent that it
would have the effect, of invalidating any insurance coverage of either party.
ARTICLE XII
DEFAULT AND REMEDIES
A. Notice of Breach and Termination. The City shall have the right to
declare EGCI in default if EGCI fails to perform any obligation required of it within
thirty (30) days after written notice by the City to EGCI specifying the particular
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obligation(s) EGCI has failed to perform; provided, however, that if the nature of
EGCI's obligation reasonably requires more than thirty (30) days for performance,
then EGCI shall not be in default if it commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion. If
EGCI does not cure such default as provided herein, then the City shall have the
right, in addition to other remedies of the City, to terminate this Agreement.
B. Immediate Termination by the City.
1 . Termination. Notwithstanding the provisions of Section XILA,
each of the following acts and omissions constitutes a material breach for which
the City shall be entitled to immediately terminate EGCI's rights and interests:
(a) The failure of EGCI to keep the Golf Center open for
operation as required hereunder without the prior written permission of the Public
Works Assistant Director, and the failure of EGCI to re-open the Golf Center
within three (3) business days following receipt of a notice of default from the City;
provided, however, EGCI shall not be in breach if the closure is due to Force
Majeure, weather conditions, public safety considerations, fire, or other casualty,
temporary closures for repairs and maintenance, and closures to prevent the
accrual of prescriptive rights.
(b) EGCI's failure to pay any monies due to the City under
this Agreement on or before the due date (notwithstanding the right of the City to
interest on any such sums that become delinquent) and the continuation of such
failure for fifteen (1 5) consecutive days after written notice of such breach to
EGCI.
(c) EGCI's material failure to perform and failure to cure
such breach within thirty (30) days after written notice thereof from the City to
EGCI, or material violation of, any other substantial condition, covenant, or
obligation of or under this Agreement on twelve (12) or more occasions in any
twelve (12) month period. Substantial conditions among others are those
identified in the Marketing Plan and the Operating Procedures Manual.
2. Payment by City if Termination Occurs Within Ten (10) Years
After Opening. If the termination occurs prior to the date that is the 1 Oth
anniversary of EGCI's opening of the Tacoma Firs Golf Center for business, even
if such termination is a result of EGC I's default (except for a default based upon
non-payment of monies due under this Agreement), then the City shall pay to
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EGCI a sum equal to the unamortized cost of EGCI's initial capital investment
incurred in development of the Tacoma Firs Golf Center (including all hard and
soft costs, but excluding any inventory and operational costs), amortized over a
30-year period on a straight line basis from the date the Tacoma Firs Golf Center
opened for business through the date of the 1 Oth anniversary of the Tacoma Firs
Golf Center opening for business. Such payment shall be paid by the City
concurrently with, and as a condition to, the termination of the Agreement.
3. Remedies Upon Material Breach and Default by EGC1. In the
event of a material breach and default of this Agreement by EGCI and its
termination by the City as provided herein, the City, in addition to all other
remedies available to it under law and without any additional notice to EGCI, may
authorize others to operate the Tacoma Firs Golf Center; provided, however, that
notwithstanding such termination and reentry, EGCI's liability for any monies
already accrued and to be paid to the City hereunder shall not be extinguished,
and EGCI shall pay to the City said monies within thirty (30) days after demand
therefor from the City, but EGCI shall not be liable for any Minimum Rent or
Percentage Rent or other obligations hereof accruing from and after the date of
termination.
C. Termination by EGCI. The City shall be in default hereunder if the
City (i) fails to perform a material provision hereof and fails to cure such breach
within thirty (30) days after written notice thereof from EGCI to the City, or (ii) the
City fails to perform on twelve (1 2) or more occasions in a twelve (I 2) month
period any material provisions hereof regardless of whether such defaults are
cured. In such case, EGCI may terminate this Agreement and the City shall be
liable to EGCI for liquidated damages in the amount of the unamortized cost of the
Golf Center Facilities over a 30-year period plus a reasonable rate of return on
the investment which is defined as four (4) times the Net Operating Income (NOI)
as averaged over the preceding two (2) years.
D. Termination Plan. Prior to the effective date of any termination
under this Agreement, EGCI and the City will jointly develop a termination plan
providing for, without limitation, assignment or termination of any outstanding
agreements with subcontractors, concessionaires, and other third parties;
post-termination staffing; accounting close-out; financial settle-up; record storage;
and a property inventory, including identification of all property to be retained by
the City. EGCI shall be entitled to remove only property and equipment that are
not fixtures without replacing same unless EGCI receives the City's prior approval
thereof.
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ARTICLE X111
ASSIGNMENT OF AGREEMENT
EGCl shall not assign or transfer this Agreement, without the prior written
approval of the City. Any such assignment shall be specifically subject to all the
terms and provisions of this Agreement. In the event of any proposed assignment
of the Agreement, EGCI shall cause to be delivered to the City simultaneously
with such proposed assignment, an instrument in writing, executed by the
assignee, in which the assignee shall assume and agree to perform all of the
terms and provision of this Agreement. The City's consent to an assignment or
subletting shall not unreasonably be withheld or delayed. The City further agrees
that EGCl may encumber any improvements constructed by EGCl on the Property
with a mortgage, deed of trust, or other financing instrument, and collaterally
assign EGCl's interest herein, with the City's prior written consent, which consent
shall not unreasonably be withheld; provided, however, any interest held by such
a lender holding such mortgage, deed of trust, or other security interest in any
insurance proceeds pursuant to this Agreement shall be limited to Lessee's
interest in this Agreement, but not a lien on the Property, the reasonable cost of
funds used to pay the hard and soft costs incurred in construction of such
improvements (and any replacements thereof]l, and such lender shall not have
any interest in insurance proceeds if the loan was originated for purposes
unrelated to the financing of the Tacoma Firs Golf Center. EGCI shall provide the
City with all information necessary for it to determine whether the assignment
should be approved.' Any assignee approved by the City must accept and
assume in writing all the terms and conditions of this Agreement to be kept and
performed by EGCl, and such assignment shall not in any manner discharge or
release EGCI or its sureties herein from any other obligation under the terms of
this Agreement. Notwithstanding the foregoing, a merger, corporate
reorganization, or an assignment to an "affiliate," shall not require the City's
consent. An "affiliate" shall be defined as a person or entity controlling, controlled
by, or under common control with the EGCl. The Public Works Department may
transfer or convey this Agreement or any right or interest herein of the Public
Works Department to another City entity without the prior written consent of EGCl,
but the Public Works Department shall provide to EGC1 written notice of such
1 The City understands that its officers will be requested to sign a Landlord's Waiver
providing notice to EGCl's Lender and an opportunity to cure and operate the Golf
Center Facilities. The City agrees to sign such reasonable and appropriate
documentation.
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transfer and conveyance, and the City shall continue to be liable hereunder. The
terms and provisions of this Agreement shall bind and inure to the benefit of the
Public Works Department's successors and assigns.
ARTICLE XIV
AUTHORITY TO ENTER INTO THE AGREEMENT
The City warrants and represents to EGCI that this Agreement is a duly
adopted, legal, and binding agreement of the City, and the execution, delivery,
and performance of this Agreement has been duly and validly authorized, and no
other action by the City is requisite to the valid and binding execution, delivery,
and performance of this Agreement by the City. EGCI warrants and represents to
the City that this Agreement is a duly adopted, legal, and binding agreement of
EGCI, and the execution, delivery, and performance of this Agreement has been
duly and validly authorized, and no other action by EGCI is requisite to the valid
and binding execution, delivery, and performance of this Agreement by EGCI. If
any third party files any action against EGCI or the City relating to the City's
authority to enter into this Agreement, then subject only to the assets of the Solid
Waste Utility and available revenues from its Solid Waste Utility, the City shall
indemnify, defend, and hold EGC1 harmless on account of such action. No
general indebtedness shall be incurred. If any third party files any action against
EGCI or the City relating to EGCI's authority to enter into this Agreement (but only
where such challenge does not derive from a challenge to the City's authority to
enter into this Agreement), then EGCI shall indemnify, defend, and hold the City
harmless on account of such action.
ARTICLE XV
NOTICE ADDRESSES
A notice, request, approval, or communication under this Agreement by
either party to the other shall be in writing and shall be sufficiently given or
delivered if sent postage prepaid by United States first-class mail or facsimile,
and:
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A. EGCL In the case of a notice or communication to EGCl, if the
same is mailed or faxed, to:
Gregory Mollner
Vice President
U.S. Corporate Development
Eaglequest Golf Centers, Inc.
9116 South 212th Street
Kent, Washington 98031
or faxed to: (206) 850-5686
With a copy to: Don Holstrom
V.P. Finance/Corporate Development
535 Thurlow Street, Suite 601
Vancouver, B.C. V6E 31-2
With a copy to: Shannon Sperry
2600 Union Square
601 Union Street
Seattle, Washington 98101 4000
Or faxed to: (206) 340-2563
B. The City. In the case of notices to, requests of, or approvals sought
from the City, if the same is mailed to:
Assistant Director
Public Works Department
Tacoma Municipal Building
747 Market Street, Room 420
Tacoma, Washington 98402
Or faxed to: (253) 591-5097
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With a copy to:
Tacoma City Attorney
Tacoma Municipal Building
747 Market Street, Suite 1120
Tacoma, Washington 98402
Or faxed to: (253) 591-5755
Either party may, from time to time, designate by written notice dispatched
as provided in this section, alternative addresses for communication to such party.
ARTICLE XVI
WAIVER
No action other than a written document from a party specifically so stating
shall constitute a waiver by that party of any particular breach or default by the
other party, nor shall such a document waive the other party's failure to comply
fully with any other term or condition of this Agreement, irrespective of any
knowledge any officer or employee of the waiving party may have of such breach,
default, or noncompliance. A party's failure to insist upon full performance of any
provision of this Agreement shall not be deemed to constitute consent to or
acceptance of such incomplete performance in the future. No course of dealing
between the parties or any delay in exercising any rights hereunder shall operate
as a waiver of any rights of any party.
ARTICLE XVII
NO THIRD PARTY RIGHTS OR PARTNERSHIP CREATED
A. No Third Party Rights. Nothing in this Agreement shall be construed
to permit anyone other than the parties hereto and their successors and assigns
to rely upon the covenants and agreements herein contained, nor to give any
such third party a cause of action (as a third party beneficiary or otherwise) on
account of any nonperformance hereunder.
B. No Partnership or Joint Venture. In no event shall the City be
construed to be a partner, associate, orjoint venturer of EGCl. EGCI is not made
an agent of the City for any purpose whatsoever by this Agreement. It is not
intended by this Agreement to, and nothing contained in this Agreement shall,
create any partnership, joint venture, or other arrangement between EGCI and the
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Public Works Department. No term or provision of this Agreement is intended to
be, or shall be, for the benefit of any person, firm, organization, or corporation nor
shall any person, firm, organization, or corporation have any right or cause of
action hereunder. Neither EGCI nor any of its subconcessionaires shall create
any obligation or responsibility on behalf of the Public Works Department or the
City or bind the Public Works Department or the City in any manner. EGCI is
deemed to be an independent contractor and not the agent, employee, partner, or
joint venturer nor bear any other relationship in law to the Public Works
Department or the City.
ARTICLE XVIII
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington. The venue of any suit or arbitration arising
under this Agreement shall be in Pierce County, Washington, and the parties
hereto do hereby stipulate to the jurisdiction and venue of the Superior Court of
Pierce County, Washington.
ARTICLE XIX
DISPUTE RESOLUTION
A. Arbitration. Any controversy, dispute, or claim concerning either
(a) the construction of the Tacoma Firs Golf Center or otherwise arising under
Golf Center Development Agreement, or (b) maintenance of the Tacoma Firs Golf
Center in accordance with the provisions of Section MY hereof, shall be resolved
at the request of any party hereto (ulnitiation") directed to the American Arbitration
Association ("AAA") by a binding arbitration conducted by a single Arbitrator in
Pierce County, Washington, in accordance with the Commercial Arbitration Rules
("CAR") of the AAA, except as modified by the terms of this Section. The
arbitrator shall apply State of Washington substantive law to the matter(s) which
are the subject of the arbitration. The arbitrator shall be limited to interpreting this
Agreement in accordance with Washington substantive law. The arbitrator shall
prepare and provide to the parties a written decision ('Decision") on all matter(s)
which are the subject of the arbitration, including factual findings and the reasons
which form the basis of the Decision of the arbitrator. The arbitrator shall not
have the power to commit errors of law or legal reasoning, and the award may be
vacated or corrected pursuant to Washington law for any such error. The
Decision shall have the effect and be enforceable in the manner provided by the
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Washington law. Each party shall pay one-half (1/2) of the fees of the arbitrator.
The parties hereby agree that the CAR are modified as follows:
1 . If the parties have not agreed to an Arbitrator within sixty (60)
days after Initiation of arbitration, then the AAA shall appoint a single neutral
Arbitrator as soon thereafter as practical.
2. The parties shall be permitted discovery under the
supervision and rules set by the Arbitrator; provided, however, that discovery shall
be completed within one hundred twenty (I 20) days of selection or appointment of
the Arbitrator. The Arbitrator shall have power to impose such sanctions as the
Arbitrator deems appropriate for failure of a party or counsel for a party to comply
with discovery rules established by the Arbitrator.
3. A hearing before the Arbitrator shall be held no later than one
hundred eighty (1 80) days after Initiation of arbitration, unless a hearing is waived
by all parties.
4. No later than fourteen (1 4) days from the date of closing of
the arbitration hearing, or, if an oral hearing has been waived, from the date of
transmitting final statements and proofs to the Arbitrator, the Arbitrator shall
render a written Decision.
During the pendency of such arbitration, EGCI shall not suspend construction
unless resolution of the dispute is required for construction to continue.
ARTICLE XX
TABLE OF CONTENTS AND ARTICLE CAPTIONS
The Table of Contents is for convenience only and forms no part of this
Agreement. The article captions used in this Agreement are for convenience only
and shall not control or affect the meaning or construction of any of the provisions
of this Agreement.
ARTICLE XXI
AMENDMENT
No modification or amendment of the provisions hereof shall be effective
unless in writing and signed by the City Manager and by an authorized
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representative of EGCl. The parties hereto expressly reserve the right to modify
this Agreement, from time to time, by mutual agreement.
ARTICLE XXII
COUNTERPARTS
This Agreement may be executed in counterparts, and each such
counterpart shall be deemed to be an original instrument. All counterparts
together will constitute one and the same agreement.
ARTICLE XXIII
SEVERABILITY
Each provision of this Agreement is severable from all other provisions. In
the event any court of competent jurisdiction determines that any provision of this
Agreement is invalid or unenforceable for any reason, all remaining provisions will
remain in full force and effect.
ARTICLE XXIV
FORCE MAJEURE
Whenever a day is appointed herein on which, or a period of time is
appointed within which, either party hereto is required to do or complete any act,
matter, or thing, except for the payments set forth in Article V of this Agreement,
the time for doing or completion therefor shall be extended by a period of time
equal to the number of days during which such party is prevented from the doing
or completion of such act, matter, or thing as a result of fires, floods, explosions,
strikes, serious accidents, strikes, lock-outs, embargoes, wars, insurrections,
rebellions, declaration of national emergencies, acts of God, or other causes
beyond such party's control (financial inability excepted) ("Force Majeure"). A
party shall not be responsible nor deemed to be in default on account of delay in
the performance of any act to be performed under this Agreement due to the
occurrence of Force Majeure. In the event that such a cause results in delay of a
party's performance of any act to be performed under this Agreement, that party
will promptly inform the other party and, thereafter, will use its best efforts to
remedy such delay. Each party's obligations hereunder shall be tolled during the
period such party is prevented from performing such obligations due to any Force
Majeure delays. Nothing contained herein shall be construed as extending the
Term hereof due to Force Majeure.
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ARTICLE XXV
EFFECTIVE DATE
This Agreement shall become effective upon execution by the authorized
representatives of each party.
ARTICLE XXVI
MISCELLANEOUS
A. Entire Agreement. This Agreement contains the entire agreement
and understanding of the parties with respect to the subject matter hereof, and
supersedes all prior oral or written understandings, agreements, promises, or
other undertakings between the parties. The parties to this Agreement
acknowledge that it is a negotiated agreement, that they have had the opportunity
to have this Agreement reviewed by their respective legal counsel, and that the
terms and conditions of this Agreement are not to be construed against any party
on the basis of such party's preparation of the same. This Agreement may not be
amended or modified in any way except by a written amendment to this
Agreement duly executed by the parties.
B. Enforceability. If any provision of this Agreement, or the application
of it to any person or circumstances, shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of this
provision to any person or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected, and each other provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
C. Time. Time is of the essence of this Agreement.
D. Conflict. In the event of any conflict between the terms of the RFP
and the Proposal, the terms hereof shall control.
E. Plan Review and Approval/Signage. The City shall have the right to
review and approve all plans for construction of improvements and all exterior
permanent or other major signage on the Tacoma Firs Golf Center, which
approval shall not unreasonably be withheld or delayed. EGCI shall only permit
advertising with respect to the Tacoma Firs Golf Center that is consistent with the
nature of the Center. Any advertising that is inconsistent with the nature of the
Tacoma Firs Golf Center shall be removed and/or stopped upon City demand.
Notwithstanding the foregoing, no sponsorships, promotions, or advertising for
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alcohol, tobacco, firearms, and explosives, or by the companies manufacturing or
producing the same, shall be permitted by EGCl without the prior written approval
of the City, which may be granted or withheld in the sole discretion of the City;
provided, however, EGCI may utilize advertising, promotional material, and
sponsorships for beer and wine without obtaining the City's prior consent therefor,
provided that such advertising, promotional material, and sponsorships is similar
to that which is customary for a facility similar to the Tacoma Firs Golf Center and
is in keeping with the nature of the Tacoma Firs Golf Center.
F. Right to Construct and Operate Golf Center. The City's grant of
rights to construct and operate the Tacoma Firs Golf Center are subject to the
terms of Attachment "E," attached hereto and incorporated herein by reference.
G. Environmental Hold Harmless. Pursuant to the limitations of the
terms specifically set forth in Attachment uF," as well as the limitations of the
assets and the available revenues of the Solid Waste Utility, the City agrees to
hold harmless EGCI as well as its Lender from and against any and all claims,
demands, causes of action, damages, liabilities, losses, and expenses caused by
or resulting from Hazardous Substances (as defined in Attachment uF"), which
were generated, stored, disposed of, or existing on, at, or under the Tacoma
Landfill, including Hazardous Substances which may have in the past, or in the
future, migrate from the Tacoma Landfill to the Property and exceed the levels of
the chemicals of concern identified in the Consent Decree.
H. Liquor License. The City acknowledges that EGCI will apply for, and
if granted, will operate with a liquor license to serve wine and beer on the
Property.
1. Additional Golf Facilities. During the Term of this Agreement, if the
City decides to use the contiguous property to the West for any other use other
than a landfill, solid waste related facility, or recycling facility, EGCI shall have the
first right of refusal to construct additional golf facilities, including a 9-hole or
1 8-hole executive golf course. EGCI must exercise this first right of refusal option
within 90 days of receiving notice from the City of its decision to use the
contiguous property for some other use other than a landfill, solid waste related
facility, or recycling facility. Any gross revenues from such newly constructed
facilities shall be considered Golf Center Gross Receipts, and rent shall be paid
as set forth in this Lease.
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J. Gas Monitoring, Landfill gas shall be monitored by the City of
Tacoma in accordance with the Landfill Gas Management Plan developed
pursuant to the Consent Decree, defined herein, as it has been or may be in the
future amended. For more information, please contact Gary Kato at the Solid
Waste Utility. If requested, monitoring results shall be provided to EGCI. No fees
shall be charged to EGCI for this service.
K Debris and Waste Material. Any debris or waste material
encountered during construction of the Tacoma Firs Golf Center property shall be
accepted by the Solid Waste Utility at the Tacoma Landfill at a minimal charge to
EGCI.
L. Landfill Expansion. The City agrees that it will not place solid waste
over the closed, unlined areas of the landfill within 1,000 feet of the Property.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
as of the day and year first written above.
CITY OF TACOMA EAGLEQUEST GOLF CENTERS, INC.
Ray E. Corpuz, Jr., City Manager Gregory Mollner
Vice President
U.S. Corporate Development
Eag1equest Golf Centers, Inc.
9116 South 212th Street
Kent, Washington 98031
Countersigned: Countersigned:
Peter Luttropp, Finance Director Department Director
Attest: Approved as to form:
City Clerk Assistant City Attorney
Risk Manager
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ATTACHMENT A
LEGAL DESCRIPTION OF PROPERTY
The subject Property is known as Tax Parcel Nos. 2201-33000 and 2201-3301 0,
and is legally described as follows:
Parcel 301 0
That portion of the Southeast Quarter of the Southwest Quarter of Section 13,
Township 20 North, Range 2 East, W.M., described as follows:
Commencing at the southwest comer of said subdivision, thence northerly along
the west line of said subdivision a distance of 270.0 feet; thence easterly parallel
with the south line of said subdivision a distance of 762.52 feet, more or less, to a
point distant 580.00 feet westerly of, measured at right angles, to the east line of
said subdivision, and the point of beginning; thence northerly parallel with said
east line a distance of 1053.8 feet, more or less, to the point of intersection with
the north line of said subdivision; thence easterly along said north line to the point
of intersection with said east line of said subdivision; thence southerly along said
east line of said subdivision to the southeast corner thereof; thence westerly
along the south line of said subdivision 580.00 feet; thence northerly to the point
of beginning.
Except therefrom the west 30.0 feet of the south 30.0 feet of the above described
parcel.
Parcel 3000
The south half of the east half of the northeast quarter of the southwest quarter of
Section 13, Township 29 North, Range 2 East, W.M., less the following described
tract:
Beginning at the southwest corner of said subdivision, thence South 88020'44"
East along the south line of said subdivision 87.52 feet; thence North 5057' West,
667.4 feet to the northeast corner of said subdivision; thence South 1035' West
along the west line of said subdivision 661.52 feet to the point of beginning.
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ATTACHMENT B
LEGAL DESCRIPTION OF LANDFILL
Commencing at the Southeast corner of the Southwest Quarter of Section 13,
Township 20 North, Range 2 East, W.M.; thence along the South line of Section
13 North 880 26' 10" West, 577.46 feet to the point of beginning; thence
continuing North 880 26' 1 Cr West, 764.16 feet; thence North 10 43 ' 47 u East,
1 324.1 3 feet; thence North 80 1 0 ' 26 ' West, 672. 00 feet; thence North 880 1 8
34 " West, 20 1. 00 feet; thence North 10 41 ' 26 " East, 61 5.89 feet to the South
line of South 40th Street; thence along said South line North 880 13'35 " West,
568.22 feet; thence North 10 53 ' 04 " East, 46.16 feet to the north line of said
Quarter; thence North 10 37 ' 22 " East, 1 323.92 feet to the Northeast corner of
"Orchard Terrace," thence North 880 20 ' 6 " West, 1 1 6.37 feet along the north
line of "Orchard Terrace"; thence North 10 36 ' 52 " East, 1 1 00.74 feet; thence
South 880 25 ' 49 ' East, 50.00 feet; thence North 10 36 ' 52 u East, 223.35 feet to
the north line of Section 13, Township 20 North 2 East, W.M.; thence North 880
25'49 " West, 3.82 feet along said north line of Section 13; thence North 20 03'
45 " East, 376.66 feet; thence North 880 25 ' 49 u West, 50. 00 feet to the
southeast corner of South 34th Street; thence North 20 03 ' 45 " East, 955.31 feet
to the north line of the Southwest Quarter of Section 12, Township 20 North 2
East, W. M.; thence South 880 1 0 ' 16 ' East, 1493.55 feet along said north line of
the Southwest Quarter of Section 12; thence South 10 53 ' 09 " West, 737.48 feet;
thence South 1 80 06 ' 51 " East, 263.14 feet; thence South 10 53 ' 09 " West,
340.00 feet to the North line of said Section 13; thence South 880 25'55 " East,
282.04 feet along said North line of Section 13; thence South 00 32 ' 59 u West,
927.05 feet to the South line of South 36th Street; thence South 881 20 ' 33 ' East,
62.96 feet to the Northwest corner of that parcel deeded to Edward Lindblom by
AFN Deed 2309767, August 11, 1969; thence around said deed South 10 36'20"
West, 130.00 feet; thence continuing around said deed South 880 20 ' 36 " East,
70.00 feet; thence continuing around said deed North 10 36'20 East, 130.00
feet to the South line of South 36th Street; thence South 880 20 56 u East, 60.00
feet along South 36th Street; thence South 10 36'20 ' West, 400.36 feet; thence
North 880 20 ' 06 " West, 200.00 feet; thence South 10 36 ' 20 " West, 254.68 feet;
thence South 880 20 ' 36 u East, 19.1 1 feet; thence South 00 32 ' 59" West, 428.46
feet to the northwest corner of 'Mason Circle" plat; thence South 00 32 ' 59
West, 643.65 feet along the West line of said plat to the North line of the
Southwest quarter of Section 13, Township 20 North, Range 2 East, W.M.; thence
North 880 15'00 " West, 246.42 feet along said north line; thence South 10 35'
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0 1 m West, 661.38 feet; thence South 60 27' 42'" East, 667.08 feet; thence South 1 0
44'07" West, 1324.04 feet to the point of beginning.
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ATTACHMENT C
SPECIAL LEASEHOLD
WITH RESERVATION OF EASEMENTS
THE LESSOR, THE CITY OF TACOMA, a Washington municipal
corporation, for and in consideration of Ten Dollars ($1 0.00), and other good and
valuable consideration, in hand paid, grants and conveys to EAGLEQUEST
GOLF CENTERS, INC., a Washington corporation, a leasehold in the following
described real estate, situated in the County of Pierce, State of Washington.
See Exhibit "A" attached hereto and incorporated herein,
Landfill Effects Easement. Reserving unto Lessor, however, for the benefit
of that certain real property legally described on Exhibit "B" attached hereto (the
uBenefited Property") a perpetual, non-exclusive easement (the "Landfill Effects
Easement") burdening the property described in Exhibit "A" hereto (the "Burdened
Property") for the benefit of the Benefited Property, pursuant to which the Lessor
and the Lessors successors in interest in the Benefited Property is and shall
perpetually be entitled to subject the Burdened Property to any and all adverse
impacts (including, without limitation, private nuisances) associated with past,
present, or future operation and/or maintenance of a solid waste related facility,
recycling facility, and landfill operation on the Benefited Property, including,
without limitation, noxious odors, air pollution not violative of applicable health
and safety standards, excessive noise, artificial lighting, seagulls and other birds
and associated bird excrement and noise, noise associated with the generation of
electricity from methane gas, traffic, and all other environmental, social, health
and economic conditions, associated with operation of a solid waste related
facility, recycling facility and a landfill on the Benefited Property; provided,
however, that, unless authorized by the Consent Decree (defined below) and
applicable Solid Waste Permits (defined below), nothing herein shall authorize
Lessors use of the Benefited Property, or actions with respect to the Burdened
Property, in any manner which violates the Consent Decree or the Environmental
Laws (defined below).
By acceptance of this Leasehold, Lessee acknowledges that its use and
enjoyment of the Real Property may be adversely affected by the impacts,
disturbances, and activities resulting from Lessor's use of the Benefited Property
and Lessee hereby waives and releases any claims now or hereafter arising,
which Lessee may have against Lessor as a result of, arising out of or in any way
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relating to the impacts, disturbances and/or activities resulting from Lessoes use
of the Benefited Property provided that such impacts, disturbances, and activities
do not result from either: 1) Lessoes violations of the Consent Decree or Solid
Waste Permits or; 2) Lessor's violations of the Environmental Laws in a manner
not authorized by the Consent Decree.
The Landfill Effects Easement shall be perpetual, and the Landfill Effects
Easement and the forgoing provisions shall run with the land and shall be binding
on and shall inure to the benefit of the parties hereto, their heirs, successors and
assigns.
As used herein, the term "Environmental Law" shall mean the Federal
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
M.; the Federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.; the Federal Hazardous
Materials Transportation Control Act, 49 U.S.C. Section 1801 et seq.; the Federal
Clean Air Act, 42 U.S.C. Section 7401 et gLeg.; the Federal Water Pollution
Control Act, Federal Clean Water Act oT 1 977, 33 U.S. C. Section 1251 et seq.: the
Federal Insecticide, Fungicide, and Rodenticide Act, Federal Pesticide Act of
1978, 7 U.S.C. Section 136 et seq., the Federal Toxic Substances Control Act,
15 U.S.C. Section 2601 et seg.; the Federal Safe Drinking Water Act, 42 U.S.C.
Section 300(f) et seq.; the Washington Water Pollution Control Act, RCW
Chapter 90.48; the Washington Clean Air Act, RCW Chapter 70.904; the
Washington Solid Waste Management Recovery Act, RCW Chapter 70.95; the
Washington Hazardous Waste Management Act, RCW Chapter 70.105; the
Washington Hazardous Waste Fees Act, RCW Chapter 70.105A; the Washington
Model Toxics Control Act, RCW Chapter 70.105D; Washington Initiative
Measure 97, 1989 Laws Chapter 2; the Washington Nuclear Energy and
Radiation Act, RCW Chapter 70.98; the Washington Radioactive Waste Storage
and Transportation Act of 1980, RCW Chapter 70.99; and any federal, state and
local law, ordinance and rule of a similar nature regulating the discharge of
hazardous substances and pollutants.
As used herein, the term 'Consent Decree" means that certain Consent
Decree, as it has been or may be in the future amended, originally entered into
between the United States of America, on behalf of the United States
Environmental Protection Agency ("EPA") and the State of Washington
Department of Ecology ("DOE"), et al. vs. City of Tacoma, dated March 25, 1991,
U.S. District Court for the Western District of Washington Case No. C 89-583T,
including all attachments thereto.
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As used herein, the term uSolid Waste Permit' means any permit granted
for the Tacoma Landfill by the Tacoma-Pierce County Health Department or the
Washington Department of Ecology as authorized by Criteria for Municipal Solid
Waste (WAC 173-351) or Minimum Functional Standards for Solid Waste
Handling (WAC 173-304).
DATED: 1997 The City of Tacoma,
a Washington municipal corporation
By:
Brian Ebersole, Mayor
Attest:
Rick Rosenbladt
City Clerk
STATE OF WASHINGTON
Ss.
COUNTY OF PIERCE
On this day of 1997, before me, the
undersigned, a Notary Public in and for the State of Washington, duly
commissioned and sworn, personally appeared Brian Ebersole, to me known (or
proven by satisfactory evidence) to be the Mayor of the City of Tacoma, a
Washington municipal corporation, the municipal corporation that executed the
foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act of said municipal corporation, for the uses and purposes therein
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mentioned, and on oath stated that he is authorized to execute the said
instrument.
WITNESS my hand and official seal hereto affixed the day and year first
above written.
NOTARY PUBLIC in and for the State of
Washington, residing in
Print Name:
My commission expires:
STATE OF WASHINGTON
) Ss.
COUNTY OF PIERCE
On this - day of 1997, before me, the
undersigned, a Notary Public in and for the State of Washington, duly
commissioned and sworn, personally appeared Rick Rosenbladt, to me known (or
proven by satisfactory evidence) to be the City Clerk of the City of Tacoma, a
Washington municipal corporation, the municipal corporation that executed the
foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act of said municipal corporation, for the uses and purposes therein
mentioned, and on oath stated that he is authorized to execute the said
instrument.
WITNESS my hand and official seal hereto affixed the day and year first
above written.
NOTARY PUBLIC in and for the State of
Washington, residing in
Print Name:
My commission expires:
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EXHIBIT 'All
TO
SPECIAL WARRANTY LEASEHOLD
WITH RESERVATION OF EASEMENTS
The subject Property is known as Tax Parcel Nos. 2201-33000 and 2201-33010,
and is legally described as follows:
Parcel 301 0
That portion of the Southeast Quarter of the Southwest Quarter of Section 13,
Township 20 North, Range 2 East, W.M., described as follows:
Commencing at the southwest corner of said subdivision, thence northerly along
the west line of said subdivision a distance of 270.0 feet; thence easterly parallel
with the south line of said subdivision a distance of 762.52 feet, more or less, to a
point distant 580.00 feet westerly of, measured at right angles, to the east line of
said subdivision, and the point of beginning; thence northerly parallel with said
east line a distance of 1053.8 feet, more or less, to the point of intersection with
the north line of said subdivision; thence easterly along said north line to the point
of intersection with said east line of said subdivision; thence southerly along said
east line of said subdivision to the southeast corner thereof; thence westerly
along the south line of said subdivision 580.00 feet; thence northerly to the point
of beginning.
Except therefrom the west 30.0 feet of the south 30.0 feet of the above described
parcel.
Parcel 3000
The south half of the east half of the northeast quarter of the southwest quarter of
Section 13, Township 29 North, Range 2 East, W.M., less the following described
tract:
Beginning at the southwest corner of said subdivision, thence South
88020'44" East along the south line of said subdivision 87.52 feet;
thence North 5057' West, 667.4 feet to the northeast corner of said
subdivision; thence South 1035' West along the west line of said
subdivision 661.52 feet to the point of beginning.
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fA1cw\agmt\eag1op8.doc
EXHIBIT "Bor
TO
SPECIAL WARRANTY LEASEHOLD
WITH RESERVATION OF EASEMENTS
BENEFITED PROPERTY
Commencing at the Southeast corner of the Southwest Quarter of Section 13,
Township 20 North, Range 2 East, W.M.; thence along the South line of Section
13 North 880 26' 1 0" West, 577.46 feet to the point of beginning; thence
continuing North 880 26' IO' West, 764.16 feet; thence North 111 43 ' 47 U East,
1324.13 feet; thence North 811 1 0 ' 26 " West, 672.00 feet; thence North 880 18
34 " West, 201.00 feet; thence North 10 41 '26 ' East, 615.89 feet to the South
line of South 40th Street; thence along said South line North 88,113' 35 ' West,
568.22 feet; thence North 10 53 ' 04 " East, 46.16 feet to the north line of said
Quarter; thence North I" 37 '22 " East, 1323.92 feet to the Northeast corner of
"Orchard Terrace," thence North 880 20 ' 6 " West, 1 1 6.37 feet along the north
line of "Orchard Terrace"; thence North 10 36'52 " East, 1100.74 feet; thence
South 880 25 ' 49 ' East, 50.00 feet; thence North 10 36 ' 52 " East, 223.35 feet to
the north line of Section 13, Township 20 North 2 East, W.M.; thence North 880
25' 49 " West, 3.82 feet along said north line of Section 13; thence North 211 03
45 " East, 376.66 feet; thence North 880 25'49 " West, 50.00 feet to the
southeast corner of South 34th Street; thence North 20 03 '45 u East, 955.31 feet
to the north line of the Southwest Quarter of Section 12, Township 20 North 2
East, W.M.; thence South 881 1 0 ' 16 ' East, 1493.55 feet along said north line of
the Southwest Quarter of Section 12; thence South 10 53 ' 09 ' West, 737.48 feet;
thence South 180 06 ' 51 ' East, 263.14 feet; thence South 11 53 ' 09 West,
340.00 feet to the North line of said Section 13; thence South 881 25 55 ' East,
282.04 feet along said North line of Section 13; thence South 00 32 '59 u West,
927.05 feet to the South line of South 36th Street; thence South 88 ID 20 ' 33 0 East,
62.96 feet to the Northwest corner of that parcel deeded to Edward Lindblom by
AFN Deed 2309767, August 11, 1969; thence around said deed South 11, 36'20"
West, 130.00 feet; thence continuing around said deed South 880 20 ' 36 " East,
70.00 feet; thence continuing around said deed North 10 36'20 East, 130.00
feet to the South line of South 36th Street; thence South 881 20 56 ' East, 60.00
feet along South 36th Street; thence South 11 36'20 ' West, 400.36 feet; thence
North 880 20 ' 06 " West, 200.00 feet; thence South 10 36 ' 20 " West, 254.68 feet;
thence South 880 20'36 " East, 19.11 feet; thence South 00 32'59" West, 428.46
feet to the northwest corner of "Mason Circle" plat; thence South 00 32 ' 59
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West, 643.65 feet along the West line of said plat to the North line of the
Southwest quarter of Section 13, Township 20 North, Range 2 East, W.M.; thence
North 880 15 ' 00 " West, 246.42 feet along said north line; thence South 10 35 '
01 " West, 661.38 feet; thence South 60 27' 42" East, 667.08 feet; thence South 1 0
44'07" West, 1324.04 feet to the point of beginning.
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ATTACHMENT D
ENVIRONMENTAL HOLD HARMLESS AGREEMENT
TACOMA TO EAGLEQUEST GOLF CENTERS, INC./LENDER
WHEREAS the City of Tacoma ("City"), by Resolution No. 30227 (1988),
has authorized the proper officers of the City to insure that the City of Tacoma be
the sole responsible party for Superfund investigation and cleanup of the Tacoma
Landfill, and that the parties adjacent to the Landfill be provided assurances that
the City will be solely responsible for any contamination emanating from the
Landfill at levels exceeding those identified for the chemicals of the concern in the
hereinafter defined Consent Decree;
WHEREAS the City and the United States of America, on behalf of the
Environmental Protection Agency (uEPA") and the State of Washington
Department of Ecology ('DOE") executed and lodged a Consent Decree in the
U.S. District Court on May 17, 1991, under Cause No. C89-583T, pursuant to
which the City has undertaken to commence and complete all planning,
monitoring, and remedial work on the Tacoma Landfill in accordance with the
Consent Decree; and
WHEREAS EGCI/LENDER are considering the lease/financing of property
in the vicinity of the Tacoma Landfill near South Tyler Street, which is more
particularly described in Exhibit "K hereto ("Property"), and in that undertaking
seek assurance that they and their successors would not be exposed to
environmental liability as a consequence of the lease of the Property in the
vicinity of the Tacoma Landfill;
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from this agreement, the City of Tacoma extends to EGCIILENDER in connection
with said lease or financing of the Property, the following hold harmless
agreement: -
1. Environmental Hold Harmless. Subject to the assets and revenues
from the Solid Waste Utility, the City shall defend and hold EGCI/LENDER
harmless from and against any and all claims, demands, causes of action,
damages, liabilities, losses, and expenses caused by or resulting from Hazardous
Substances, which were generated, stored, disposed of, or existing on, at, or
under the Tacoma Landfill, including Hazardous Substances which may have in
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fAcw\agmt\eag1op8.doc
the past, or in the future, migrate from the Tacoma Landfill to the Property and
exceed the levels of the chemicals of concern identified in the Consent Decree.
This agreement to hold harmless is to apply to claims brought by any party based
upon any state or federal statutory or common law, including any claims brought
under the laws described in paragraph 2 below, and shall include claims for
investigation, litigation, administration, oversight, and personnel costs, all costs
arising out of or related to the cleanup, storage, treatment, handling, disposal,
transportation, presence of, or threatened release or discharge of, any
contaminants, at, from, or beneath the Tacoma Landfill, and any property damage
or damages for personal injury related thereto.
2. Hazardous Substances. For purposes hereof, 'Hazardous
Substances" shall include pollutants or substances defined as 'hazardous waste,"
"hazardous substances," "hazardous materials," "pollutants," "contaminates," or
"toxic substances," which exceed the acceptable levels identified in the Consent
Decree and incorporated documents in the Comprehensive Environmental
Response Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601
et seg., as amended by the Superfund Amendments and Reauthorization Act of
1986 (PL 99-499); the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq.; the Resource Conservation and Recovery Act, 15 U.S.C. Section
2601, et seq.; the Resource Conversation and Recovery Act of 1976, as
amended, 42 U.S.C. Section 1601 et seg.; the Clean Water Act, 33 U.S.C.
Section 1251, et seq.; the Washington State Environmental Policy Act, RCW
90.48.01 0, et seq.; the Water Pollution Control Act, RCW 90.49.01 0, et seq.; the
Hazardous Waste Management Statute, RCW 90.105, et seq.; the Toxic
Substance Control Act, RCW 70.105C, et seq.; and the Model Toxics Control Act,
RCW 70.105C, et seq.; and in the rules or regulations adopted and guidelines
promulgated pursuant to said laws.
3. Notice to City. The City's obligation pursuant to this agreement shall
be conditioned upon receipt by the City of timely written notice of any such claim
or suit, giving the City reasonable opportunity to assume and defend such claim
or suit, and cooperation by EGCI/LENDER or successors with the City in
connection therewith.
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4. Successors. This agreement shall be binding upon and inure to the
benefit of EGCI/LENDER and their heirs, successors, and assigns, and shall run
with the land.
DATED at Tacoma, Washington, this _ day of 1997.
CITY OF TACOMA
Countersigned:
Ray E. Corpuz, Jr., City Manager
Peter Luttropp, Finance Director
Approved:
Attest:
William Pugh, Director
Rick Rosenbladt, City Clerk Public Works Department
Approved as to form:
Assistant City Attorney Andrew Michels, Risk Manager
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EXHIBIT "K TO
ATTACHMENT D,
ENVIRONMENTAL HOLD HARMLESS
(Legal Description of Property)
The subject Property is known as Tax Parcel Nos. 2201-33000 and 2201-3301 0,
and is legally described as follows:
Parcel 3010
That portion of the Southeast Quarter of the Southwest Quarter of Section 13,
Township 20 North, Range 2 East, W.M., described as follows;
Commencing at the southwest corner of said subdivision, thence northerly along
the west line of said subdivision a distance of 270.0 feet; thence easterly parallel
with the south line of said subdivision a distance of 762.52 feet, more or less, to a
point distant 580.00 feet westerly of, measured at right angles, to the east line of
said subdivision, and the point of beginning; thence northerly parallel with said
east line a distance of 1053.8 feet, more or less, to the point of intersection with
the north line of said subdivision; thence easterly along said north line to the
point of intersection with said east line of said subdivision; thence southerly along
said east line of said subdivision to the southeast corner thereof; thence westerly
along the south line of said subdivision 580.00 feet; thence northerly to the point
of beginning.
Except therefrom the west 30.0 feet of the south 30.0 feet of the above described
parcel.
Parcel 3000
The south half of the east half of the northeast quarter of the southwest quarter of
Section 13, Township 29 North, Range 2 East, W.M., less the following described
tract;
Beginning at the southwest corner of said subdivision, thence South 88020'44"
East along the south line of said subdivision 87.52 feet; thence North 5057' West,
667.4 feet to the northeast corner of said subdivision; thence South 1035' West
along the west line of said subdivision 661.52 feet to the point of beginning.
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APPROVED this day of '19
EGCI LENDER
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EXHIBIT A
TACOMA FIRS GOLF CENTER DEVELOPMENT AGREEMENT
The Tacoma Firs Golf Center shall be developed in accordance with the
terms of this Agreement.
ARTICLE I
DEFINITIONS
The following words and terms shall have the following meanings for the
purposes of this Golf Center Development Agreement. Capitalized terms not defined
herein shall have the meanings set forth in the Operation Agreement. Terms
otherwise not defined herein shall be given their usual and customary meaning.
"Commencement Date" means the date that EGCI is obligated to commence
construction of the Tacoma Firs Golf Center, as provided in Section 3.1 1.
uCoordinator" means an on-site field coordinator hired or employed by the
Department's Solid Waste Utility Division or the City to observe and review the
construction of the Tacoma Firs Golf Center.
uDevelopment Permits" means all City, State, and/or Federal permits required
for construction of the Golf Center Facilities.
'Minimum Investment" shall mean the minimum dollar amount of required
capital improvement/commitments or expenditures by EGCI, as further defined at
Section 2.2.
uOperation Agreement". means that certain Golf Center Agreement dated as of
, 1997, between the City of Tacoma ("City") and Eaglequest Golf
Centers, Inc. ("EGCI"), to which this Golf Center Development Agreement is
attached.
uProject" means the entire Tacoma Firs Golf Center and any part thereof.
"Proiect Completion Date" means the date EGCI is obligated to complete
construction of the Tacoma Firs Golf Center, which shall be the end of the Build Out
Period as defined in Article I of the Operation Agreement.
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-1
f:\emps\1cw\eag1dev6.doc
ARTICLE 2
FINANCIAL OBLIGATIONS OF EGCI
2.1 Cost of Development. Subject to EGCI's approval of the physical
condition of the Property, as described in Article IV of the Operation Agreement,
EGCl agrees to pay all costs associated with development of the Tacoma Firs Golf
Center.
2.2 Minimum Investment. EGCI shall make a minimum investment of
$2,700,000 to complete development of the Golf Center and prepare the Center for
operation. EGC1 shall have the discretion to invest such funds in any of the line
items of categories set forth in the construction budget previously presented by
EGCI to the City with EGCI's proposal, including the right to invest more or less
funds in any of the line items, so long as EGCl's total investment equals at least
$2,700,000.
2.3 Taxes. EGCI shall pay all taxes associated with construction of the
physical improvements of the Golf Center Facilities.
2.4 Utilities. The City warrants that there is sufficient capacity in its
electrical, sanitary and sewer utilities, and that there is sufficient potable and
irrigation water for the Golf Center Facilities. Stormwater detention will be required,
however.
ARTICLE 3
DEVELOPMENT OBLIGATIONS OF EGCI
3.1 Facilities. The City's RFP and EGCl's Proposal dated May 20, 1997,
establish the basic intent for design and development except as altered by specific
provisions of this Agreement. EGCI will construct a 60-tee station driving range and
learning center (a portion of which will be two-tiered, and at least 20 shall be
heated), and an attached Golf Center containing 5,000 square feet of floor area and
incorporating a fully stocked pro shop, Eag1equest Golf School with golf lessons,
video taping, and a food and beverage operation. Also included are short game
practice areas with sand bunkers, chipping, and putting greens. Parking will be
provided for a minimum of 1.25 stalls for each tee station. In its review of the
construction plans, the City will examine them for any potential interference with the
City's methane gas extraction system and approve the design so as to avoid any
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-2
fAempsVcw\eag1dev6.doc
adverse effect on the methane gas extraction system on the Property and adjacent
Landfill.
3.2 Standards for Facilities.
3.2.1 Building Codes. All permanent Golf Center Facilities shall be
constructed in accordance with currently applicable building codes.
3.2.2 Useful Life. Permanent Golf Center Facilities shall have an
expected useful life of at least forty (40) years.
3.2.3 Lightin-g. Night lighting of the driving range is part of the plan
and shall be approved by the Public Works Department.
3.3 Desig-n Review and Approval Process. Within thirty (30) days following
the City's approval of the Development Plan for the Tacoma Firs Golf Center, EGCI
shall submit to the Public Works Department eight (8) copies of schematic drawings
to show the specific location of all buildings and features to be constructed, the
associated circulation flow, a diagram of proposed lighting, and the architects'
drawings and renderings of the major buildings and structures with sufficient detail to
indicate materials and appearance. Within thirty (30) days following approval of the
schematic drawings, EGGI shall submit to the Public Works Department eight (8)
copies of final working drawings and specifications with sufficient detail to review
design and materials related to all permanent features of the Golf Center Facilities.
All such working drawings and specifications shall be pre pared by architects
or engineers licensed in the State of Washington, who shall have affixed to the same
his or her signature and seal. The schematic drawings are subject to the review and
approval of the Public Works Department which review and approval shall not be
unreasonably withheld. Except for permit approval, the Public Works Department
shall have not more than fifteen (1 5) working days to complete such review and
either approve, conditionally approve, or disapprove each such submittal or revised
submittal; provided, however, if public review is required, then such 15-day period
may be extended to accommodate the time required for the public review process.
In the event of a conditional approval or disapproval, the Public Works Department
shall specify, in a letter signed by the Assistant Director or the Assistant Director's
designee, the conditions attached to such approval or the reasons for such
disapproval. Within fifteen (15) days after EGCI's receipt of the Public Works
Department's conditional approval or disapproval notice, EGCI shall submit to the
Public Works Department: (a) EGCI's written acceptance of the conditions attached
to the Public Works Department's conditional approval or such submittal; (b) EGCI's
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-3
fAemps\1cw\eag1dev6.doc
written explanation of why specified conditions or Public Works Department's
disapproval cannot be accepted by EGCI and the EGCI's proposed schedule for
meeting(s) to resolve such dispute; or (c) a revised submittal responding to the
Public Works Department's previously stated objections. EGCI shall keep a
complete set of approved final plans and specifications on the construction sites
throughout the duration of construction.
3.4 "As-BuilC Drawings to be Provided. EGCI shall provide the Public
Works Department with a set of reproducible, mylar 24' x 36' "as-built" drawings and
as-built in AUTO CAD format for the permanent golf facilities constructed under this
Development Agreement.
3.5 No Representation or Liability Created by Approval. Except as
otherwise provided herein with regard to chemicals of concern that may emanate
from the Landfill at levels exceeding those identified in the Consent Decree, and
except as set forth in the Operation Agreement, the approval of any plans and
specifications by the Public Works Department or any other person or entity shall not
constitute an opinion or representation by the Public Works Department as to their
compliance with any law or ordinance or their adequacy for other than the Public
Works Department's own purposes; and such approval shall not create or form the
basis of any liability on the part of the Public Works Department or any of its
employees or agents for any injury or damage resulting from any inadequacy or error
therein or any failure to comply with applicable laws or ordinances.
3.6 Site Coordination and Construction Plan. At least.twenty (20) working
days prior to commencement of construction, EGCI shall submit for the Public Works
Department's approval, a copy of the contractors' Washington State Business
License, evidence of insurance, a construction bond covering 1 00 percent of the
estimated cost of construction, and a Site Coordination and Construction Plan that
addresses the following items and other matters as may be reasonably required by
the Public Works Department:
Access to the Property by construction personnel;
Designation of EGCI's project manager and local construction
manager;
Delivery, handling, and storage of materials and equipment;
Use of existing facilities and utilities;
Exhibit A
Tacoma Firs Golf Center Development Agreement - A4
fAempsVcw\eagIdev6.doc
0 Parking for construction personnel, staging location(s);
0 Dust control, wheel wash, and street clean-up;
0 Signage during construction;
0 Silt fencing and use of straw to prevent erosion of slopes;
0 Location of temporary bathrooms for construction personnel;
0 Hours of work and coordination of activity, noise control;
0 Fencing or other barriers to prevent public access to construction site;
0 Clean up of work and the disposition of refuse;
& List of emergency telephone numbers, and names and responsibilities;
9 Public relations plan, including a primary contact name and the office
location and phone number of such primary contact.
3.7 Review of Plan. The Public Works Department shall review EGCl's
Building Plans and shall provide comments to EGCI no later than five (5) working
days prior to delivery of construction permits. EGCI shall revise the Site
Coordination and Building Plans in accordance with comments by the Public Works
Department, to the extent that the comments will not require EG Cl to develop more
expensive features in the Tacoma Firs Golf Center than originally described in the
RFP, and provided such changes shall not increase maintenance expenses. EGCI
shall comply with the Building Plans throughout construction of the golf facilities.
Change orders or field changes in the plan shall be subject to the review and signed
approval of the Public Works Department's Coordinator, except for minor field
changes. EGCI shall have the right during the course of construction to make minor
field changes without seeking the approval of the City. Minor field changes shall be
defined as those non-structural exterior and interior changes from the approved
Construction Drawings which have no material adverse effect on the improvements,
and do not constitute material deviations from the exterior design, and are made in
order to expedite the work of construction, in response to field conditions, and
costing less than $25,000.00 in any instance.
3.8 Inspections. The Public Works Department's Coordinator and advisors
(including, but not limited to, an on-site inspector) may inspect any golf facility or
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-5
fAemps\Icw\eagIdev6.doc
capital improvement work of or for EGCI upon reasonable prior notice at any time to
determine whether such work is in accordance with the plans and specifications
approved by the Public Works Department for the same. EGCI personnel shall be
present at all inspections. If any such work is not materially in accordance with such
plans and specifications, the Public Works Department shall send to EGCI, return
receipt requested, a Notice of Non-Compliance. EGCI shall correct any material
deviations identified in such notice prior to the completion of construction of the
Tacoma Firs Golf Center. For purposes hereof, material deviations include, without
limitation, violations of building and safety codes, deviations of the building structure,
and material exterior deviations from the plans and specifications approved by the
City. Notwithstanding the foregoing, EGCI shall be obligated to construct the Golf
Center Facilities materially in accordance with the plans and specifications, and the
failure of the City to inspect shall not reduce this obligation.
3.9 Management Team. EGCI shall designate in writing to the Public
Works Department its project manager and construction supervisor. The Public
Works Department's Coordinator shall be Jody Bratton, P.E., unless otherwise
provided for in writing. EGCl's project manager shall meet at least once per week
(or more if reasonably required by the Public Works Department) with the Public
Works Department's Coordinator.
3.1 0 Status Report. If requested by the City, EGCI shall provide an
estimated construction schedule to the City. Also, if requested by the City, EGCI
shall provide monthly status reports to the Public Works Department describing
construction progress. Such reports shall include the following information, if
reasonably requested by the Public Works Department: Payments made to
contractors, subcontractors and suppliers, any deviations from the construction
schedule, any changes to construction budget, and any change orders or field
changesissued.
3.11 Construction Commencement. EGCI shall begin construction of the
Golf Center Facilities no later than thirty (30) working days following receipt of
building permits except for delays due to unsuitable weather or force majeure.
EGCI shall submit any requests for time extension to the City in writing no later than
ten working days after the cause of the delay occurs. The request shall be limited to
the change in the critical path of EGCI's schedule attributable to the change or event
giving rise to the request. To be considered by the City, the request shall be in
sufficient detail (as determined by the City) to enable the City to ascertain the basis
and amount of the time requested. EGCI shall be responsible for showing the
progress schedule that change or event: (1) had a specific impact on the critical
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-6
fAemps\1cw\eag1dev6.doc
path, and except in cases of concurrent delay, was the sole cause of such impact,
and, (2) could not have been avoided by resequencing of the work or other
reasonable alternatives. In evaluating the request, the City will consider how well
EGCI used the time from commencing construction up to the point of the delay and
the effect the delay has on any completion times included in the Operation
Agreement.
The time extension for physical completion will be extended for a period equal to the
time the City determines the work was delayed because of:
1 . Unsuitable weather
2. Any action, neglect, or default of the City, its officers or employees, or of
any other contractor employed by the City;
3. Fire or other casualty for which EGCI is not responsible;
4. Strikes;
5. Any other condition for which the City permits time extensions, such as:
a. A change order which increases the time to complete the work;
b. A change in the condition of work is determined to exists which
caused a delay in completing the project;
c. The City does not approve properly prepared and acceptable
drawings within a reasonable time;
d. Performance of the work is delayed as a result of damage by
others;
e. The removal or relocation of any utilities by forces other than EGCI
caused the delay;
f. Performance of the work is suspended, delayed, or interrupted for
an unreasonable period of time that proves to be the responsibility
of the City;
g. If a dispute of claim also involves a delay in completing the work
and the dispute or claim proves to be valid;
6. Exceptional causes not specifically identified in items 1 through 5,
provided the request letter proves EGCI had no control over the cause of
the delay and could have done nothing to avoid or shorten it.
The City will not allow a time extension for any cause listed above if it resulted
in EGCI's default, collusion, action or inaction, or failure to comply with the contract.
The City considers the time specified in this contract as sufficient to do all the
work. For this reason, the City will not grant a time extension for:
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-7
fAemps\1cW\eag1dev6.doc
a. Failure to obtain all materials and workers;
b. Changes, protests, increased work, or changed conditions that do
not delay the completion of the project or prove to be invalid or
inappropriate time extension request;
c. Delays caused by nonapproval of drawings or plans;
d. Rejection of faulty or inappropriate equipment.
The reasons for time of extension shall be determined by the City, and such
determinations will be final.
Moreover, due to climate and other natural conditions, the only months in
which EGCI may plant grass seed are the months of March 1 through May 15, or
August 15 through October 1, inclusive, unless EGCI obtains the approval of a
licensed Landscape Architect in the State of Washington to grant authorization to
EGCI. If the construction schedule is such that the Property is not in a condition
adequate to allow EGCI to plant grass seed during those months, then the
construction schedule shall be extended as necessary to allow for the planting for
grass seed at those times. Moreover, EGC I has no control over the rate of growth of
grass, which is also subject to climate and other natural factors, and EGCI shall be
allowed such reasonable additional time to open the golf center as is necessary to
grow the grass and to place the golf center in such condition as is necessary to meet
the quality and finish standards of this Agreement and the Building Plans.
3.12 Construction of Facilities. EGCI will, at its expens 'e and subject to the
provision of this Agreement and the Operation Agreement, construct the permanent
Golf Center Facilities and provide, furnish, and install within the facilities all
furnishings, fixtures, architectural, electrical, and mechanical work to complete the
facilities in accordance with the approved plan and specifications, and equip the
facilities for golf center operations.
3.13 Condition of Construction Site. Pursuant to the Operation Agreement,
EGCI shall examine the Property for location of the permanent Golf Center Facilities
on the Property. By December 3, 1997, EGCI shall determine, based upon its
examination of the physical condition of the Property, whether the Property is
suitable for Golf Center Facilities to be located thereon, and EGCI hereby accepts
the Property in an "as is" condition, subject to the City's obligations to be responsible
for any hazardous or toxic materials on the Property, and any remediation required
as a result of the use of the adjacent property as a landfill, as provided in the
Operation Agreement. The City shall continue to be liable for remediation of any
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-8
fAempsVcw\eag1dev6.doc
chemicals of concern exceeding the levels identified in the Consent Decree, e.g.,
methane gas or other hazardous materials being released from the Landfill.
The City requires, pursuant to the issuance of the Special Use Permit, EGCI to
construct a left-turn pocket on Tyler Street and prepare the road shoulder along
Tyler Street to accommodate a 5-foot-wide pathway frontage along the property
length. Any site preparation work shall be at EGCI's sole cost and expense. Except
for the foregoing, EGCI expressly agrees that the Public Works Department shall
have no liability or obligation to prepare the Property for construction of the Golf
Center Facilities.
3.14 Contractor Licensed in Washington. EGCI's contractor shall be
licensed to work in Tacoma, Washington, in accordance with all applicable laws.
3.15 Liens Prohibited. EGCI shall not suffer or permit any mechanic's lien
or other liens to be filed against the Golf Center including its concession facilities by
reason of work, labor, services, or materials supplied or claimed to have been
supplied to EGCI. EGCI shall indemnify and hold harmless the City from and
against any and all loss, costs (including attorney's fees), liability, expenses, or
claims arising out of work done by EGCI. EGCI shall pay all the City's reasonable
costs, including legal costs as incurred by the City in removing any liens related to
the construction described in this Development Agreement or any other activities of
EGCI or its contractor on City property, except for liens accruing by reason of any
work performed on the Property by the City or the Public Works Department,
including the costs of abating any hazardous or toxic materials on the Property.
3.16 High Quality Workmanship. All work required by EGCI to complete the
Golf Center Facilities shall be carried out with good workmanship and with new
materials (or recycled materials which are functionally equivalent to new materials),
which shall all be of a high quality, conform to accepted standards of practice, and
shall not be in contravention of the laws, codes, or regulations of the municipality or
any other authority having jurisdiction.
3.17 Insurance Reauirements. Before commencing construction, EGCI's
contractor shall furnish to the Public Works Department certificates of the following
insurance policies, naming the City as an additional named insured:
3.17.1 Commercial general liability insurance, including contractors
liability coverage, contractual liability coverage, completed operations coverage,
broad form property damage endorsement, and contractors protective liability
coverage, to afford protection, with respect to bodily injury, death or property
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-9
f.\emps\1cw\eag1dev6.doc
damage of not less than Five Million Dollars ($5,000,000) per occurrence with a
deductible amount of not more than Five Thousand Dollars ($5,000).
3.17.2 Comprehensive automobile liability insurance of not less than
Five Million Dollars ($5,000,000) single limit, bodily injury and property damage.
3.17.3 Worker's Compensation or similar insurance in form and
amount required by law, including employers liability insurance in an amount not
less than Five Hundred Thousand Dollars ($500,000) per occurrence.
EGCI shall be allowed to provide all such insurance through a blanket policy of
insurance covering other sites of EGCI and its affiliates. None of the above policies
shall be canceled or materially altered except after thirty (30) days written notice to
the Public Works Department or following completion of the golf facilities as set forth
in Article 6.
3.18 Waste Disposal. EGCI shall provide on-site containers for collection of
waste materials, debris, and rubbish. EGCI shall keep the work site and adjacent
properties free of accumulation of construction waste materials, rubbish, and
windblown debris, and on a daily basis shall dispose of all flammable, hazardous,
and toxic materials. Storage of these materials will not be permitted on the site.
Storage and disposal must be in accordance with 40 CFR, WAC 173-303, and
49 CFR, and state and local fire codes and regulations. All waste materials, debris,
and rubbish must be disposed of legally at disposal areas away from the site at
EGCl's expense.
At the completion of EGCI's work, EGCI shall leave the construction site and
surrounding area clean and to the satisfaction of the Public Works Department, shall
remove all tools, equipment, and surplus materials from the construction site, and
remove all waste material and refuse and deposit them in places or in receptacles
designated by the Public Works Department.
3.19 Liability Regarding Construction Work. The Public Works Department
shall not in any way be responsible or liable for any work carried out or any materials
or tools left or installed in the facilities by EGCl. Any damage caused by EGCl's
contractors or subcontractors employed to construct the Golf Center Facilities shall
be repaired promptly by EGCl. If EGCI fails to repair such damage, the Public
Works Department may engage its own contractor to make repairs to the satisfaction
of the Public Works Department, and the Public Works Department may recover the
costs if incurred from EGCl. EGCI shall be entirely responsible for the security of
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-10
f:\emps\1cw\eag1dev6.doc
the facilities during construction and the Public Works Department shall not be liable
for any loss or damage suffered by EGCl.
3.20 EGCI as Sole Obli-gor. EGCI and its successors, assigns, and
guarantors shall be the sole obligors under any loan or credit document made in
connection with Project financing. EGCI shall execute documents reasonably
required for Project construction or term financing, provided that such documents do
not affect the interests of the City or the Department beyond the City's or
Department's interests in the Project revenues, Project documents, agreements, and
permits for the satisfaction of any claim or obligation with respect to Project
financing.
3.21 Access. The City shall allow EGCI reasonable access to the
contiguous real property owned by the City for purposes of access during the
construction period. EGCI and its contractors shall have the right of reasonable
access through the City of Tacoma Landfill during the regular hours of daily
operation (Monday through Sunday-8:00 a.m. until 6:00 p.m.). EGCI and its
contractors shall follow all signage and rules, including those laws and regulations
pertaining to roads, drainage, erosion control. While utilizing this right of access,
EGCI and its contractors shall make access with minimal interference to the solid
waste handling activities of the Solid Waste Utility. EGCI and its contractors shall
restore to original condition any City property which was damaged by them. Any
damages to City real or personal property caused by EGCI or its contractors shall be
repaired in accordance with Section 3.19.
ARTICLE 4
OBLIGATIONS OF THE DEPARTMENT
4.1 Design Review. The Public Works Department will facilitate the public
process leading to approval of the development plan and all other design reviews
outlined herein in a timely manner.
4.2 Assistance with Environmental Documentation. The Public Works
Department shall assist EGCl with preparation and processing of environmental
documentation associated with the Project. The Public Works Department shall
serve as Lead Agency.
4.3 Development Permits. EGCI shall have responsibility for obtaining all
development permits. Without limiting the foregoing, the Department will endeavor
to assist when possible especially when such assistance can help keep the project
moving.
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-1 1
fAemps\1cw\eag1dev6.doc
4.4 Construction Review. The Public Works Department will provide timely
inspections, monitoring, and review and decisions of proposed change orders or
field changes during the construction process. As provided, however, Public Works
Department approval shall not be required for minor field changes.
ARTICLE 5
OWNERSHIP OF FACILITIES
5.1 EGCI shall own all Golf Center Facilities developed under this
Agreement until completion of construction or as described in the Operation
Agreement.
5.2 The City shall own the underlying land and the methane collection
system. The City shall not subordinate its interest in the underlying land to EGCl's
lender.
ARTICLE 6
COMPLETION OF FACILITIES
6.1 Proiect Completion Date. Subject to extensions required from weather
delays as provided herein, EGCI shall complete construction of the Golf Center
Facilities within ten (1 0) months of receipt of construction permits, subject to
extensions of the Build Out Period as defined and provided in Article I of the
Operation Agreement, and subject to extensions due to Force Majeure. EGCI may
also request an extension of the Project Completion Date (and the Build Out Period)
by submitting a request for such extension to the Public Works Department in writing
at least thirty (30) days in advance of the originally determined Project Completion
Date. Such request shall not be unreasonably withheld.
Completion of the Golf Center Facilities shall be evidenced by the following:
EGCI will deliver a copy of the Certificate of Occupancy to the Public Works
Department.
EGCI will discharge any liens that may have been mechanic's or
materialmen's filed against the facilities or any City property with respect to
construction of the facilities.
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-1 2
fAempsVcw\eag1dev6.doc
EGCI will deliver a certificate signed by an appropriate officer of EGCI that
there are no mechanics' or materialmen's liens, other than mechanics' or
materialmen's liens which are bonded by EGCI as required by law.
EGCI will deliver a certificate of its architect that the facilities have been
constructed in accordance with approved plans and specifications in a good and
workmanlike manner.
EGCI will submit an accounting indicating the actual cost of construction and
all deliverables listed in the RFP to be at least $2,700,000 million.
EGCI will deliver the "As-builts" required in Section 3.4 as soon as is
reasonably possible after the Project Completion Date.
6.2 Turf and Landscaping. All turf will be seeded and landscaping planted
by the Project Completion Date, but it will also be EGCI's responsibility to ensure
healthy grow-in and provide for rapid replacement of any dead turf or plants as set
forth in the Operation Agreement.
6.3 Punchlist. Upon substantial completion of the facilities, representatives
of EGCI and the Public Works Department shall inspect the facilities and identify
items remaining for completion in accordance with the approved plans and
specifications. EGCI shall cause its contractor to compete all punchiest items within
thirty (30) days of receipt.
ARTICLE 7
NON-COMPLIANCE
7.1 Default by EQCI. If EGCI shall fail to comply with the provisions of this
Development Agreement, the Public Works Department shall provide EGCI with
written notice of such delinquency, and EGCI shall, in accordance with the Operation
Agreement, cure such default within thirty (30) days after receipt thereof; provided,
however, that if the nature of EGCI's obligation reasonably requires more than thirty
(30) days for performance, then EGCI shall not be in default if it commences
performance within such thirty (30) day period and, thereafter, diligently prosecutes
the same to completion. This period shall run concurrently with, and not be in
addition to, any cure period described in the Operation Agreement. In such event,
the City shall have the right to declare and treat EGC I's non-compliance as a
material default or breach of covenant under the Operation Agreement and to
Exhibit A
Tacoma Firs Golf Center Development Agreement - A-1 3
fAempsVcw\eag1dev6.doc
exercise any right available under the provisions of the Operation Agreement,
including the right of termination.
IN WITNESS WHEREOF, the parties hereto have executed this Development
Agreement as of 1997.
CITY OF TACOMA EAGLEQUEST GOLF CENTERS, INC.
Ray E. Corpuz, Jr., City Manager Gregory Mollner
Vice President
U.S. Corporate Development
Eaglequest Golf Centers, Inc.
9116 South 212th Street
Kent, Washington 98031
Countersigned:
Peter Luttropp, Finance Director
Karen J. Larkin
Assistant Director
Public Works Department
Attest: Approved as to form:
City Clerk Assistant City Attorney
Risk Manager
Exhibit A
Tacoma Firs Golf Center Development Agreenwrd - A-1 4
f.\emps\1cw\eag1dev6.doc
Resolution No. 33906
Adopted: DEC
Maker of Motion:
Seconded:
Roll Call vote:
MEMBERS AYES NAYS ABSTAIN ABSENT
Mr. Baarsma
Mr. Crowley
Mr. DeForrest
Mr.Evans
Mr. Kirby
Dr. McGavick
Mr. Miller
Dr. Silas
Mayor Ebersole
MEMBERS AYES NAYS ABSTAIN ABSENT
Mr. Saarsma
Mr. Crowley
Mr. DeForrest
Mr.Evans
Mr. Kirby
Dr. McGavick
Mr. Miller
Dr. Silas
Mayor Ebersole