R-00-05-25-11A1 - 5/25/2000 RESOLUTION NO. R-00-05-25-11A1
WHEREAS, the City of Round Rock ("City") is the owner of an
18-hole golf course facility known as the Forest Creek Golf Course,
and
WHEREAS, the City and CCA S I LBAND/GOLFCORP/ROUND ROCK, INC.
( "Golfcorp" ) previously entered into a Management Agreement dated
October 24, 1995, providing for the management and operation by
Golfcorp of the Forest Creek Golf Course, which agreement expired
by its own terms on April 30, 2000 and
WHEREAS, the City and Golfcorp are desirous of entering into
a Golf Course Management Agreement which provides for the
continuing management and operation of the Forest Creek Golf Course
by Golfcorp, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Golf Course Management Agreement, a copy of
said agreement being attached hereto and incorporated herein.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
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and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended, and the Act .
RESOLVED this 25th day of May, 2000 .
4
O RT A. STLUKA, Y-I
Mayor
City of Round Rock, exas
ATTEST:
C)
J ANNE LAND, City Secretary
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GOLF COURSE
MANAGEMENT AGREEMENT
BY AND BETWEEN
THE CITY OF ROUND ROCK, TEXAS
("Owner')
AND
CCA SILBAND/GOLFCORP/ROUND ROCK, INC.
("Operator')
May 1, 2000
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GOLF COURSE MANAGEMENT AGREEMENT
THIS GOLF COURSE MANAGEMENT AGREEMENT ("Agreement"), dated the
1 st day of May, 2000, by and between the CITY OF ROUND ROCK, TEXAS, a home
rule city (hereinafter referred to as "Owner"), and CCA SILBAND/GOLFCORP/ROUND
ROCK, INC., a Texas corporation (hereinafter referred to as "Operator") is as follows:
RECITALS
WHEREAS, Owner is the owner of the Real Property, as hereinafter defined,
upon which there is an 18-hole golf course facility with improvements, known as "Forest
Creek Golf Course," together with all furniture, fixtures, and equipment required to be
located thereon for the purpose of operating said 18-hole golf course and related
amenities; and
WHEREAS, Operator and Owner previously entered into an Amended and
Restated Management Agreement dated October 24, 1995 (the 'Prior Management
Agreement"), providing for the management and operation by Operator of the Forest
Creek Golf Course which Prior Management Agreement expired by its own terms on
April 30, 2000; and
WHEREAS, both Owner and Operator are desirous of entering into this new
Agreement for the continued management and operation by Operator of the Forest
Creek Golf Course;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, Owner and Operator agree as follows:
ARTICLE 1.
PRIOR MANAGEMENT AGREEMENT TERMINATED
AND RELEASE OF LIMITED GUARANTY AGREEMENT
1.1. Prior Management Agreement Status. The Owner and Operator agree that
the Prior Management Agreement is terminated and of no further force or effect. Owner
and Operator both hereby mutually release and discharge the other party from any and all
liabilities and obligations of any nature whatsoever, whether known or unknown, arising
directly or indirectly, out of or in connection with the Prior Management Agreement save
and except for the obligation of Owner to pay to Operator, Prior Management Fees in
accordance with the provisions of Article 5 hereof which both Owner and Operator agree
and confirm is a continuing obligation of Owner and such obligation shall not be released
or terminated except by payment by Owner to Operator of Prior Management Fees, plus
all interest accrued on the Prior Management Fees in accordance with the provisions of
this Agreement.
061f::Cour6e,�Management Agreement Page 1
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ARTICLE 2.
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the meanings
indicated:
2.1. Annual Capital Budget. The term "Annual Capital Budget" shall have the
meaning set forth in Section 7.5.
2.2. Annual Operations Budget. The term"Annual Operations Budget"shall have
the meaning set forth in Section 7.4.
2,3. Base Management Fee. The term 'Base Management Fee" shall have the
meaning as defined in Section 5.1.1.
2.4. Base Year Consumer Price Index. The term 'Base Year Consumer Price
Index" shall mean the Consumer Price Index for the month of June, 2000.
2.5. Capital Reserve. The term "Capital Reserve" shall mean those amounts at
any given time funded into an account in Owner's name for (i) capital replacements and
improvements within and to the Forest Creek Golf Course, (ii) funding of the payment by
Operator of the payments required to be made by Operator to Owner in accordance with
the provisions of Section 5.3 in the amount of the Monthly Debt Payments, or(iii) payment
of amounts due Operator under Section 5.2. At the conclusion of each Fiscal Month,
Operator shall credit to the Capital Reserve account established, an amount equal tom
pereent ra -of the Green Fees for the preceding Fiscal Month.
2.6. Commencement Date. The term"Commencement Date"shall mean May 1,
2000.
2.7. Consumer Price Index. The term "Consumer Price Index" shall mean the
Consumer Price Index for All Urban Consumers, All Items (1982-84 = 100), from time to
time published by the Bureau of Labor Statistics, United States Department of Labor for
Austin, Texas, or if none is published for such city, then the metropolitan area closest to
Austin, Texas, for which the Bureau of Labor Statistics does publish such information. In
the event that the Consumer Price Index shall be discontinued, the Bureau of Labor
Statistics shall be requested to furnish a new index comparable to the Consumer Price
Index,together with information which will make possible the conversion of the new index.
If for any reason the Bureau of Labor Statistics does not furnish such index and
information, the parties hereto shall thereafter accept and use such other index or
comparable statistics regarding the cost of living for Austin, Texas, or the closest
metropolitan area for which the Bureau of Labor Statistics does publish such information,
Golf C ppe Management Agreement Page 2
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as the case may be, which shall be computed and published by an agency of the United
States or by a financial periodical or recognized authority then to be selected by the
parties.
2.8. Current Management Fees. The term "Current Management Fees" shall
have the meaning as defined in Section 5.1 hereof.
2.9. Default. The term "Default" shall have the meaning as defined in Article 18
hereof.
2.10. Easements and Rights. The term "Easements and Rights' shall mean all
rights of access, easements, rights-of-way, and any other property rights which allow
Owner, its agents or assigns, Operator and/or any other party,the right to use,gain access
to, or otherwise benefit the Real Property, including, but not limited to, the right to use all
adjacent roads, streets, gates, utility lines and water rights owned by Owner and required
for the operation of the Property.
2.11. Financial Statements. The term"Financial Statements"shall mean a balance
sheet of the Property as of the close of a fiscal period and statements of Gross Receipts
and Expenses for that portion of the Fiscal Year then ended, applied on a basis consistent
with that of the preceding period or containing disclosure of the effect on the financial
position or results of operations of any change during the period.
2.12. Fiscal Month. The term "Fiscal Month" shall mean a consecutive 28-day
period,or a portion thereof,during a Fiscal Year,commencing on the first day following the
termination of the prior Fiscal Month. The first Fiscal Month of each Fiscal Year shall
commence on the first day of each Fiscal Year; provided, however, that for purposes
hereof, the first Fiscal Month may be a short Fiscal Month commencing on the first day of
the first Fiscal Month beginning on or after the Commencement Date and ending on that
date which would have been the ending date for such Fiscal Month if such Fiscal Month
had been part of a Fiscal Year commencing on the Monday following the last Sunday in
the December immediately preceding the Commencement Date.
2.13. Fiscal Quarter. The term "Fiscal Quarter" shall mean a fourth of a Fiscal
Year. There shall be four (4) Fiscal Quarters in each Fiscal Year, the first three (3) of
which shall consist of three (3) Fiscal Months. The first Fiscal Quarter of each Fiscal Year
shall commence on the first day of each Fiscal Year and the last Fiscal Quarter shall end
on the last day of the Fiscal Year; provided, however, that for purposes hereof, the first
Fiscal Quarter may be a short Fiscal Quarter beginning on the first day of the first Fiscal
Month beginning on or after the Commencement Date and ending on that date which
would have been the ending date for such Fiscal Quarter if such Fiscal Quarter had been
part of a Fiscal Year commencing on the Wednesday following the last Tuesday in the
December immediately preceding the Commencement Date.
Golfou�Se'mManagement Agreement Page 3
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2.14. Fiscal Year. The term"Fiscal Year"shall mean a period commencing on the
Wednesday following the last Tuesday in December during each calendar year and ending
on the last Tuesday of the following December; provided, however, that for purposes
hereof, the first Fiscal Year may be a short Fiscal Year commencing on the first day of the
first Fiscal Month beginning on or after the Commencement Date and ending on the last
Tuesday of the following December.
2.15. Forest Creek Golf Course. The term "Forest Creek Golf Course"shall mean
the 18-hole golf course located on the Real Property.
2.16. Green Fees. The term "Green Fees" shall mean the fees paid for the
privilege of playing golf at the Forest Creek Golf Course.
2.17. Gross Receipts. The term "Gross Receipts" shall mean all receipts related
to or derived from the operation of the Forest Creek Golf Course, computed on an accrual
basis, from cash or credit transactions recognized after the Commencement Date, and
shall include, but shall not be limited to, green fees, cart fees, the amount of all sales
(wholesale or retail) of food, beverages, goods, wares or merchandise on, at, or from the
Property, or for services of any nature performed on, at, or from the Property, determined
in accordance with generally accepted accounting principles applied on a consistent basis.
Gross Receipts shall be reduced by any refunds,rebates,discounts and credits of a similar
nature given, paid,or returned by Operator in the course of obtaining such Gross Receipts.
Gross Receipts shall not include:
2.17.1. Applicable gross receipts,taxes,admission,cabaret,excise,sales and
use taxes, or similar governmental charges collected as a part of the sales price of
any goods or services;
2.17.2. Income and revenues of licensees and concessionaires of Operator
from the Property or any part thereof; provided, however, (i)that all commissions,
percentages or other payments received or earned by Operator from any licensee
or concessionaire shall be included in Gross Receipts and (ii) any licenses or
concessionaires of Operator from the Property, or any portion thereof, shall be
subject to the prior approval of Owner which approval shall not be unreasonably
withheld;
2.17.3. Service charges, which are defined to mean percentage gratuities
added to billings as compensation to Operator's employees;
2.17.4. Proceeds of borrowing by Operator; or
2.17.5. Proceeds paid as a result of an insurable loss.
PPP P,purs,Management Agreement Page 4
2.18. Gross Receipts Variable Fee. The term"Gross Receipts Variable Fee"shall
have the meaning as defined in Section 5.1.2 of this Agreement.
2.19. Improvements. The term "Improvements" shall mean the improvements of
any nature located or to be located on the Real Property (including, nut not limited to, a
clubhouse, an 18-hole golf course, and a maintenance facility), and any other
improvements constructed or to be constructed on the Real Property.
2.20. Intangible Personal Property. The term "Improvements" shall mean the
improvements of any nature located or to be located on the Real Property (including, but
not limited to, a clubhouse, an 18-hole golf course, and a maintenance facility), and any
other improvements constructed or to be constructed on the Real Property.
2.21. Intangible Personal Property. The term "Intangible Personal Property"shall
mean all intangible property or rights owned or held in connection with the Forest Creek
Golf Course or the Property, including, but not limited to, security deposits, prepaid rents,
liquor and operating licenses, and all trademarks related to the operation or use of the
Forest Creek Golf Course and/or any other Property.
2.22. Management Fees. The term "Management Fees" shall collectively mean
the Base Management Fee and the Gross Receipts Variable Fee to be paid to Operator
pursuant to the terms of Article 5 herein.
2.23. Monthly Debt Payment(s). The term "Monthly Debt Payment" shall mean a
monthly payment in accordance with Exhibit "A," said payments to be applied by the City
to the New Bonds Debt Payment(s).
2.24. Negative Net Cash Flow. The term "Negative Net Cash Flow" shall be
defined as the amount, if any, by which the sum of(i) Monthly Debt Payments, lus(ii)the
amount to be funded to the Capital Reserve, plus (iii) Operating Expenses exceeding
Gross Receipts for the particular period in question.
2.25. New Bonds. The term "New Bonds" shall mean the City of Round Rock,
Texas Combination Tax and Revenue Certificates of Obligation, Series 1995, and any
refinancing thereof.
2.26. New Bonds Debt Payment(s). The term "New Bonds Debt Payment" shall
mean the semi-annual debt payments as set out in Exhibit "B."
2.27. Operating Expenses. The term "Operating Expenses" shall mean those
necessary or reasonable operating expenses of the Forest Creek Golf Course incurred or
paid during or after the Commencement Date hereof in connection with the normal course
of conducting and operating the business affairs of the Property and/or Forest Creek Golf
Golf'Cours "Management Agreement Page 5
Course, set forth in the then current Annual Operations Budget, computed on an accrual
basis, including, but not limited to, the following items:
2.27.1. Salaries, wages, employee benefits and payroll expenses, including,
but not limited to, standard pension and/or profit sharing plans, payroll taxes, profit
sharing programs and insurance of all employees employed on-site in the direct
operation of the Property, excluding, however, service charges, which are defined
as percentage gratuities and paid to employees;
2.27.2. Marketing, advertising and promotional expenses;
2.27.3. Replacement of inventories of maintenance parts and supplies, food
stores and bar supplies;
2.27.4. Replacement of broken,lost or damaged silver,chinaware,glassware,
cooking utensils and other similar items of equipment;
2.27.5. Office supplies, postage, printing, routine office expenses and
accounting services incurred in the on-site operation of the Property;
2.27.6. The costs of entertainment at the restaurant, or other portion of the
Property, including vocalists and bands;
2.27.7. Reasonable travel expenses of on-site employees incurred exclusively
in connection with the business of the Property;
2.27.8. Accrual of a reserve for insurance and property taxes each month in
an amount or at a rate that is sufficient to pay such insurance premiums or property
taxes when they become due and payable;
2.27.9. Insurance premiums, to the extent not provided for in any reserve
established therefor;
2.27.10. Accounts receivable previously included within Gross Receipts,to the
extent they remain unpaid ninety (90) days after the first billing;
2.27.11. Auditing, accounting costs, computer fees and legal fees performed
by a non-affiliate of Operator and incurred in respect of the operation of the
Property, including any financial management and accounting fees paid for services
rendered by any non-affiliate of Operator;
2.27.12. Costs incurred for utilities,including,but not limited to,all electric,gas,
and water costs and any other private utility charges incurred in connection with the
operation of the Property;
Golf Course,Management Agreement Page 6
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2.27.13. Ordinary maintenance and repairs, to the extent same are not paid
from the Capital Reserve, as well as the cost of any capital improvements or capital
replacements;
2.27.14. All lease payments on any item of furniture, fixtures or equipment
utilized in the operation of the Property, except as set forth below;
2.27.15. Any Negative Net Cash Flow deficit carried forward from previous
Fiscal Months;
2.27.16. All out-of-pocket expenses incurred by Operator or Operator's
affiliates, including, but not limited to, Golf Holding, Inc., in providing the services
under the terms of this Agreement;
2.27.17. Principal or interest payments on indebtedness of Operator in
providing the services under the terms of this Agreement.;
2.27.18. Rental or lease payments for items of furniture, fixtures or equipment
incurred by Operator in providing the services under the terms of this Agreement;
2.27.19. An amount to be paid to Owner equal to the Monthly Debt Payments
as they become due; and
2.27.20. All other customary and reasonable expenses incurred in the
operation of the Property.
Any of the above provisions resulting in a double deduction as an Operating Expense shall
be allowed as a deduction only once.
2.27. Operator's Personal Property, The term"Operator's Personal Property" shall
mean the property of Operator or others used in operations at the Forest Creek Golf
Course. Owner may request a listing of Operator's Personal Property not more often than
once every three (3) years.
2.28. Owner's Personal Property, The term "Owner's Personal Property" shall
mean the personal property purchased by the Forest Creek Golf Course or by Operatorfor
which the Operator is reimbursed shall be owned by the Owner. Owner may request that
Operator prepare a listing of Owner's Personal Property not more often than once every
three (3) years.
2.29. Personal Property. The term "Personal Property" shall mean (a) Owner's
Personal Property, (b) Operator's Personal Property, and (c) all other personal property,
machinery, fixtures, furnishings, installed or to be placed or installed on or about the Real
Property and to be used as a part of or in connection with the operation of the Forest Creek
Golf Course, including, but not limited to, (i) all equipment, fixtures, and furniture, (ii) golf
Golf CgQt Management Agreement Page 7
carts, (iii)restaurant equipment, (iv)golf course maintenance equipment,and(v)any other
furniture,fixtures and equipment to be utilized by the Property, as determined by Operator
to be required to operate a public golf course facility.
2.30. Positive Net Cash Flow. The term "Positive Net Cash Flow"shall mean that
amount, if any, by which Gross Receipts exceed the sum of the following for the Fiscal
Month in question: (i)the Monthly Debt Payments,plus (ii)the amount to be funded to the
Capital Reserve, plus (iii) Operating Expenses.
2.31. Prior Management Agreement. The term "Prior Management Agreement"
shall mean that one certain Management Agreement dated October 24, 1995, and all
amendments thereto, between Owner and Operator.
2.32. Prior Management Fees. The term"Prior Management Fees"shall have the
meaning as defined in Section 5.4 hereof.
2.33. Property. The term "Property" shall mean (i) the Real Property, (ii) the
Easements and Rights, (iii) the Personal Property, (iv) the Intangible Personal Property,
(v) the Improvements, and (vi) any other contract or property rights owned by Owner
related to the Real Property and the Personal Property.
2.34. Real Estate Taxes. The term "Real Estate Taxes" shall mean all taxes,
assessments, excises, levies and other charges required to be paid upon or with respect
to the Real Property and/or improvements, assessed, levied or imposed by any public
authority having jurisdiction, whether general or special.
2.35. Real Property. The term "Real Property" shall mean that certain parcel or
parcels of land described in Exhibit "C" attached hereto.
2.36. Tax Year. The term"Tax Year"shall mean each fiscal year from time to time
utilized by the taxing authorities having jurisdiction over the Real Property which occurs
after the execution date of this Agreement.
2.37. Term. The term "Term" of this Agreement shall mean a period of five (5)
years beginning on the Commencement Date, unless sooner terminated as provided
herein.
ARTICLE 3.
APPOINTMENT OF OPERATOR AND
OWNERSHIP OF PERSONAL PROPERTY
3.1. Management of the Property. Owner hereby appoints, hires and employs
Operator as Owner's exclusive agent to supervise, manage, direct and operate the Forest
Creek Golf Course and the Property during the Term of this Agreement, and Operator
hereby accepts said appointment upon and subject to the terms,conditions,covenants and
PPMt +Oq Management Agreement Page 8
provisions set forth herein. Owner hereby delegates to Operator the sole responsibility,
discretion and authority to determine operating policies and procedures, standards of
operation, house rules, standards of service and maintenance, pricing, and other policies,
rules and regulations affecting the Property or the operation thereof,to implement all such
policies and procedures, and to perform any act on behalf of Owner deemed necessary
or desirable for the operations and maintenance of the Property. The performance of all
activities shall be for the account of Operator.
3.2. Use of the Property and Nondisturbance. Owner hereby grants to Operator
the exclusive use and possession of the Property during the Term of this Agreement for
the purposes set forth herein for the purposes of managing and operating the Property.
During the Term of this Agreement, Owner agrees that it may not in any event remove or
prohibit Operator's use and possession of the Property, except due to an act which is not
cured by Operator within the applicable grace period provided herein after written notice
from Owner to Operator.
3.3. Ownership of Personal Property. The Owner and Operator agree that
(i) Operator is the owner of all of Operator's Personal Property together with any and all
additions and substitutions thereof during the Term of this Agreement and (ii)Owner is the
owner of all of Owner's Personal Property together with any and all additions and
substitutions thereof during the Term of this Agreement. Owner acknowledges and agrees
that Operator owns Operator's Personal Property and that upon the termination of this
Agreement for any reason whatsoever, including, but not limited to, a Default by Operator
which is not cured within the time permitted after written notice from Owner to Operator,
Operator will be entitled to remove all Operator's Personal Property together with all
additions and substitutions thereof during the Term of this Agreement.
ARTICLE 4.
TERM
4.1. Term. The Term of this Agreement shall be for a period of five (5) years
beginning on the Commencement Date unless sooner terminated in accordance with the
provisions of this Agreement. Owner hereby reserves the option to terminate this
Agreement (the "Early Termination Option")on the date which is three (3)years following
the Commencement Date of this Agreement(the"Early Termination Date")by the delivery
of written notice by Owner to Operator of the exercise by Owner of the Early Termination
Option not less than sixty (60) days prior to the Early Termination Date.
ARTICLE 5.
CURRENT MANAGEMENT FEES, OWNER'S RECEIPTS,
PRIOR MANAGEMENT FEES AND PRIORITY OF PAYMENTS
5.1. Current Management Fees. During the period in which this Agreement is in
effect, Operator shall be paid the following (collectively referred to as the "Current
Management Fees"):
Goff Gburs�,3Management Agreement Page 9
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5.1.1. Base Management Fee. On the Commencement Date and on the first
day of each Fiscal Month thereafter during the Term, in advance, Operator shall
earn and be entitled to deduct from Gross Receipts a fee equal to ELEVEN
THOUSAND SEVENTY-SIX AND 07/100 DOLLARS ($ 11,076.07) (the 'Base
Management Fee"). The Base Management Fee shall be increased,or decreased,
on an annual basis on each anniversary date of the Commencement Date by
multiplying the then current Base Management Fee by an amount equal to any
increase in the Consumer Price Index over the Consumer Price Index for the prior
year.
5.1.2. Gross Receipt Variable Fee. Subject to the conditions set out below,
on the first day of each Fiscal Month, Operator shall earn and be entitled to deduct
from Gross Receipts a sum equal to the following (the "Gross Receipts Variable
Fee"): two percent(2%)of Gross Receipts for the prior Fiscal Month until such time
as the Prior Management Fees, and all interest accrued thereon, are paid in full, at
which time the Gross Receipts Variable Fee shall automatically increase to ten
percent(10%)of the Gross Receipts for the prior Fiscal Month. Notwithstanding the
foregoing, the parties agree that in no event will the Gross Receipts Variable Fee
exceed the Base Management Fee accrued in any year of the Term(a'Term Year")
which begins on the anniversary date hereof provided, however, notwithstanding
anything contained herein to the contrary, on a Term Year Basis, in the event the
Gross Receipts Variable Fee exceeds the Base Management Fee,as adjusted,for
such period, then the Gross Receipts Variable Fee that Operator shall be paid for
such period shall be an amount which is ONE AND NO/100 DOLLAR ($1.00) less
than the Base Management Fee, as adjusted, that is payable to Operator for such
applicable period. The Gross Receipts Variable Fee shall be reduced by an amount
equal to the amount that prior Monthly Debt Payments have not been fully funded
by Gross Receipts, but only to the extent that New Bonds Debt Payment(s)have not
been fully funded out of Gross Receipts.
5.2. Accrual of Unpaid Current Management Fees. Notwithstanding anything
herein to the contrary, in the event that during any Fiscal Month during the Term of this
Agreement there are not sufficient Gross Receipts to pay the full amount of the Current
Management Fees after payment by Operator to Owner of an amount equal to the Monthly
Debt Payments required pursuant to Section 5.3, and Operating Expenses, the unpaid
portion of the Current Management Fees shall accrue until such time as and to the extent
that Gross Receipts are sufficient to pay such accrued Current Management Fees, at
which time Operator shall deduct same from Gross Receipts. At the termination of this
Agreement, save and except arising from a Default by Owner which is not cured within the
time permitted afterwritten notice thereof from Operatorto Owner,all Current Management
Fees and unreimbursed Operating Expenses arising during the Term of this Agreement,
and interest on Prior Management Fees, shall be paid solely from the existing,
unencumbered or not otherwise budgeted balance in the Capital Reserve account and any
remaining unpaid balance of such Current Management Fees, interest on Prior
G§pf O;#,SO;Management Agreement Page 10
Management Fees,and unreimbursed Operating Expenses shall not subsequently be due
or payable.
5.3. Monthly Debt Payments. From and after Commencement Date and
continuing thereafter throughout the Term (including any renewals or extensions hereto),
to the extent Gross Receipts are available, Operator shall make monthly payments to
Owner in an amount equal to the Monthly Debt Payments to Owner, or Owner's designee
on the dates which occur during the Term of this Agreement in the amounts set forth on
Exhibit'A,"attached hereto,with the first such Monthly Debt Payment due and payable on
June 1, 2000. If directed by the Owner in writing, Operator hereby agrees to make the
payments otherwise payable to Owner in the amount of the Monthly Debt Payments
required herein directly to the party specified by Owner in writing. Owner covenants to
Operator and agrees to make the New Bonds Debt Payments as they come due.
5.4. Payment of Prior Management Fees. Owner and Operator agree that as of
the Gemmeneernent Operator has accrued unpaid prior
management fees and expenses in connection with the Prior Management Agreement of
(hereinafter collectively
referred to as the"Prior Management Fees"). The Owner and Operator agree that the then
current unpaid portion of Prior Management Fees shall bear interest at the rate of six
peFeemt per annum (which is the same rate of
interest as the New Bonds) until the Prior Management Fees and all interest accrued
thereon is paid in full or until the termination of this Agreement, whichever first occurs.
Upon tefrnination ef this AgFeement, any unpaid PFOOF Management Fees she" no lengef
bearinterest. In the event of the teFfnination ef this Agreement for any reasen whatseeve.p.
save and exeept a termination arising out of a Default by Operator that is not eured within
the time peFMitted after Witten netiee from Owner to E)pefatff, the payment of the Prie
Management Fees,plus aeerued interest ther-eem,shall be subordinate enlyte the payrnent.
of(i)the Menthly Debt Payments that Gwner is required to pay on the New Bonds, and (ii.)
a 14 la
Gperating Expensela.-Gemmeneing with the peried beginning ten (10)years after th..%ASAtAl
of the Gernmeneement Date of this Agreement, the payment by Owner to Gpemter of thee
then unpaid PFior Management Fees amd the Gufrent Management Fees, of any, plus
seerued interest thereon, she" be subordinate to: (a) the debt on the New Bonds, (ii)
E)perating Expenses and (Hi) a reasonable Management fee or similar fee payable to arty
third party, whether or not such pefty is am Affiliate of Gity, to manage OF operate the
Property. (Sueh a management fee will be eensideFed reasonable of at is eernparable to the
fees paid for the similar management of other munieipally owned golf eourses an Texas.),
The terfn"Affiliate of „
ether entity of any nature or type, tl�fflt 1-3 8ffi11111LAL%1%.A VVIU I Or us direetly or indirectly, through
one ef MOM inteffnediffies, eentFelled by or is under eemmen eentFOI with the Gity Or 8n
portion of the Gity. In the event of the sale OF'ease of the Propefty, the FeFest GFeek G
Management Fees, tegether with a'! eeemed interest thefeen, shall be due amd payable
inful'. Notwithstanding the foregoing,GperateFeeknewledges that in the event of a Befoul
G (,,Q-64f4seWanagement Agreement Page I 1
to Gpefetef and the termination of this AgFeement arising fmm sueh Default by Opefetef:-,
the unpaid peftion of the Pfief Management Fees, tegethef with all eeefued inte
thefeen, shall be deerned to be paid in full not as a penalty but as liquidated damages
a
the Default by Gpefatef and the tefmination of this Agfeement.
5.4.1. Financial Statement and Ownerand Operator's Right to Audit. Owner
and Operator agree that the parties shall have the following additional rights as set
forth below:
5.4.1.1. Operator's Right to Review and Audit. In the event of
termination of this Agreement for any reason whatsoever prior to the
payment in full to Operator of Prior Management Fees, except for a
termination of this Agreement arising from a Default by Operator which is not
cured within the time permitted after written notice from Owner to Operator,
within thirty (30) days of the end of each calendar year ending after the
termination of this Agreement,Owner shall cause to be delivered to Operator
(i)financial statements setting forth in similar detail and form as provided to
Owner during the Term of this Agreement, the Gross Receipts, Operating
Expenses and any other expenses or costs of any nature whatsoever
relating to the Property, or any portion thereof, for the prior calendar year
then ending including a calculation of the amount that is to be paid by Owner
to Operator toward the payment of the then current unpaid principal balance
of Prior Management Fees together with all interest accrued thereon and (ii)
the payment to be made by Owner to Operator in payment of the then
current unpaid principal balance of Prior Management Fees together with all
accrued interest thereon. All such payments received by Operator shall be
applied first to the accrued and unpaid interest on Prior Management Fees,
and the remaining balance of such payments, if any, shall be applied to the
payment of the unpaid principal balance of Prior Management Fees.
Operator, at Operator's sole cost, shall be entitled to review and audit the
books and records of Owner and any other entity that may have possession
of such books and records relevant to the determination of Gross Receipts,
Operating Expenses and other costs and expenses relating to the Property
or any portion thereof, at any time upon not less than twenty-four(24) hours
written notice to Owner. Such review and audit shall take place at the offices
of Owner; provided, however, Operator shall use Operator's best efforts to
minimize the disruption of Owner's business. If Operator disputes any
calculation by Owner which impacts the amount of any payments to be paid
by Owner to Operator on the unpaid principal balance or accrued and unpaid
interest on Prior Management Fees, Operator shall provide Owner written
notice of the disputed items within thirty (30) days following the completion
of Operator's review and audit. In the event that Operator and Owner are
Golf Gourse Management Agreement Page 12
unable to resolve any disputed items to which Operator has provided Owner
written notice within the 30-day period following the delivery by Operator to
Owner of such notice, such dispute shall be settled by a nationally
recognized accounting firm mutually acceptable to Operator and Owner. In
the event that Owner and Operator are unable to agree upon a nationally
recognized accounting firm, Owner and Operator shall each select a
nationally recognized accounting firm and the representatives of those two
(2) firms shall jointly select one (1) nationally recognized accounting firm to
settle the disputed items. Upon the conclusion of such review and audit by
the nationally recognized accounting firm,the costs of such review and audit
shall be paid by Operator unless the amount of the payment toward the
payment of the then current unpaid principal balance and accrued interest
on Prior Management Fees is increased by two percent (2%) or more as a
result of such audit over the amount of the payment specified in the
applicable annual calculation of such payment provided by Owner to
Operator in accordance with the provisions of this Agreement.
5.4.1.2. Owner's Right to Review and Audit. During the Term of
this Agreement, Owner shall have the right to request and have performed
an audit, review or a financial examination agreed upon with Operator,of the
financial records of Operator by an independent Certified Public Accountant
selected by Owner. Notwithstanding anything contained in Section 5.4.1.1
or 5.4.1.2 to the contrary, in no event will any audit which is performed at the
request of Owner, which is to be an Operating Expense, exceed the sum of
FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) provided that the
financial records of Operator are in reasonably good order, reasonably
readily available for examination and there are no unusual circumstances
that would otherwise cause the cost of such review, audit or other financial
examination to be significantly higher.
5.5. Priority of Gross Receipts and Positive Net Cash Flow. Owner and Operator
agree that the following shall be the priority of payments under this Agreement:
5.5.1. Gross Receipts received shall be applied by Operator to the payment
of the following items in priorities indicated:
5.5.1.1. First, to the payment of the then current scheduled
Monthly Debt Payment which is due, but qnly to the extent that the next
scheduled New Bonds Debt Payment is not fully funded (i.e., once the next
scheduled New Bonds Debt Payment is fully funded, no additional Monthly
Debt Payment is due);
5.5.1.2. Second, to any amounts remaining unpaid for prior
Monthly Debt Payments, but only to the extent that the next scheduled New
Bonds Debt Payment is not fully funded.
�kl Dour; Management Agreement Page 13
5.5.1.3. Third, to the payment of the amounts to be paid to the
Capital Reserve account, including any amounts remaining unpaid from prior
months and including the reimbursement to the account for any sums paid
out for one or more New Bonds Debt Payment(s) or portion thereof; and
5.5.1.4. Fourth, to the payment of the then current Operating
Expenses.
5.5.2. Positive Net Cash Flow shall be applied by Operator to the payment
of the following items in the priorities indicated within thirty (30) days
following the end of each Fiscal Month, or at such other time as may be set
forth below:
5.5.2.1. First, to the payment of any of the Base Management
Fees which are then currently due and payable to Operator until they are
paid in full;
5.5.2.2. Second, to the payment of any portion of the Gross
Receipts Variable Fee which is then currently due and payable to Operator
until they are paid in full.
5.5.2.3. Third, to the payment of the unpaid portion of Prior
Management Fees, plus all accrued interest thereon, which payments shall
be made within forty-five (45) days following the expiration of each Fiscal
Quarter for the prior Fiscal Quarter then ended. Such payments shall be
applied first to the payment of accrued and unpaid interest on Prior
Management Fees and, at any time during which such interest is then
currently paid in full, to the unpaid principal of Prior Management Fees until
the Prior Management Fees are paid in full; and
5.5.2.4 Fourth, any Positive Net Cash Flow remaining after the
payment in full, on a then current basis, of all three (3) of the foregoing
priorities of Positive Net Cash Flow to Operator, shall be paid and distributed
to Owner within forty-five (45) days following the expiration of each Fiscal
Quarter then ended.
ARTICLE 6.
REAL ESTATE TAXES AND
PERSONAL PROPERTY TAXES
During the Term of this Agreement, Owner covenants and agrees that there shall
be no Real Estate Taxes payable or levied of any nature whatsoever. Nothing herein
contained shall require Operator to pay or be charged for any portion of(i)municipal, state
or federal income taxes assessed against Owner, (ii) municipal, state or federal capital
GOifCbiManagement Agreement Page 14
levy, estate, succession, inheritance or transfer taxes of Owner, or (iii) corporation
franchise taxes imposed upon Owner or any corporate owner of the fee of the Property.
ARTICLE 7.
GENERAL RESPONSIBILITIES OF OPERATOR
7.1. Operation of Forest Creek Golf Course. Operator shall operate,maintain and
manage the Forest Creek Golf Course in a manner which Operator deems in its sole
discretion to be necessary to operate a public golf club; provided, however, the Forest
Creek Golf Course shall be maintained by Operator in a good and attractive condition
reasonably comparable to other municipally owned golf courses in the central Texas area
that (i) have similar annual budgets for golf course maintenance, (ii) that charge similar
greens fees to those being charged for playing the Forest Creek Golf Course and (iii)that
have similar climatic and soil conditions to the Forest Creek Golf Course. Operator shall
have the authority and duty to exercise all prerogatives of management with respect to the
Forest Creek Golf Course, including implementing all policies and procedures established
by Operator,collecting Gross Receipts into a special trust account held in Operators name
in trust for the benefit of Owner and paying an amount to Owner equal to the Monthly Debt
Payments required pursuant to Section 5.3 and Operating Expenses therefrom, and
performing any act necessary or desirable forthe operation and management of the Forest
Creek Golf Course and the Property.
7.2. Commencement Date. From and afterthe Commencement Date and so long
as it has not been excluded from possession of the Property by Owner, Operator shall, as
Operating Expenses, maintain, preserve and keep the Property in good repair, working
order and condition, and shall from time to time make all repairs, replacements and
improvements necessary to keep the Property in such condition. Owner shall have no
responsibility for such maintenance or for any of these repairs, replacements or
improvements. All such additions, modifications and improvements shall thereafter
comprise part of the Property and be subject to the provisions of this Agreement. Such
additions, modifications and improvements shall not in any way damage the Property nor
cause it to be used for purposes other than those authorized under the provisions of state
and federal law; and the Property, upon completion of any additions, modifications and
improvements made pursuant to this Section, shall be of a value not less than the value
of the Property immediately prior to the making of such additions, modifications and
improvements.
7.3. Annual Operations Budget. No later than each December 1 S` prior to the
commencement of the next Fiscal Year, Operator shall prepare, and provide to Owner, an
annual operations budget for such Fiscal Year (hereinafter referred to as the "Annual
Operations Budget") setting forth the projected Gross Receipts and Operating Expenses
for such Fiscal Year associated with the operation of the Property.
7.4. Annual Capital Budget. No later than each December 1s` prior to the
commencement of each Fiscal Year, Operator shall prepare, and provide to Owner, an
Golf Course°;Management Agreement Page 15
annual capital replacements and repair budget for such Fiscal Year(hereinafter referred
to as the "Annual Capital Budget") setting forth the projected capital repairs and
improvements to the Property for such Fiscal Year. Owner and Operator agree that the
Annual Capital Budget for the 2000 Fiscal Year has already been prepared by Operator
and provided to Owner. The parties agree that the source for the funding of the items set
forth in the Annual Capital Budgets shall be the funds in the Capital Reserve. The
accounting for the utilization of the funds in the Capital Reserve account shall be done on
an annual basis based on the Fiscal Year of Operator. In the event during any Fiscal Year,
Operator spends an amount in excess of the funds available in the Capital Reserve
account, then the amount of such excess shall be credited toward the expenditures to be
made in subsequent Fiscal Years. In the event that during any Fiscal Year, Operator
spends an amount which is less than the funds available in the Capital Reserve account,
Operator shall be entitled to spend such unutilized funds in subsequent Fiscal Years with
Owner's approval, which approval shall not be unreasonably withheld. In the event ofthe
termination of this Agreement, which termination does not arose direetly ffern a Default by
Gpeffltff, and any peFtien of Prier Management Fees or any eeefued interest on PFief
Management Fees -3aid at the time of sueh term:nateen, unt" sueh time as Nef
d interest thereon is paid in full, agreed by the pefties
Management Fees and see,ue
theFeef, she'! be limited in any ealendaF yea. te an aimount not greatef than four pereent,
(4%) of the Greens Fees for sueh ealendaf year fer purposes of ealeulating the payrne
payable to Gperater of the unpaid peFtien of the PFi0f Management Fees and seerued
interest thereon.
7.5. Accounting Records and Reporting. Operator agrees from and after the
Commencement Date and during the Term of this Agreement, at Operator's cost, to
maintain efficient and accurate accounting records in a format consistent with other public
golf courses operated by Operator or its affiliates as follows:
7.5.1. From and after the Commencement Date, and during the Term of this
Agreement, Operator shall submit to Owner on or before the twentieth day following
the previous Fiscal Month, a Financial Statement showing in detail all of the Gross
Receipts, Operating Expenses and a statement of financial position (a balance
sheet), of Operator for the preceding Fiscal Month and the Fiscal Year to date.
7.5.2. From and after the Commencement Date, and within sixty (60) days
after the close of each Fiscal Year, Operator shall submit to Owner a financial
statement showing all Gross Receipts, Operating Expenses and statement of
position (a balance sheet)for the Fiscal Year then ended. The Financial Statement
shall be certified by a Certified Public Accountant selected by Operator and shall
include a statement that the financial statements were compiled in compliance with
the terms and conditions of this Agreement and in accordance with generally
accepted accounting principles.
GolfGouirseManagement Agreement Page 16
7.6. Status Reports and Meetings. Operator agrees to have a representative of
Operator present at the meetings of the Golf Course Advisory Board of the Owner provided
that Operator has sufficient prior notice of the date, time, and location of such meetings.
Additionally, a representative of Operator and a representative of Owner shall hold
quarterly meetings for the purpose of having the representative of the Operator update the
Owner on the general operations of the Property and review the financial performance of
the Property. On or before December 15`h of each year, Operator shall provide Owner with
an annual status report setting forth the general condition of the Property and a general
outline of all planned improvements and needed changes for the forthcoming operating
year.
7.7. Emergency Expenditures. In the event that a condition should exist in, on,
or about the Property, or any portion thereof, of an emergency nature, including structural
repairs, which requires immediate repairs to preserve and/or protect the Property, and
assure its continued operation or to protect the members of employees. Operator is
authorized to take all steps and to make all expenditures necessary to repair and correct
any such conditions whether or not provisions have been made in the applicable budget
or budgets for any such emergency expenditures and the applicable budget or budgets
shall be automatically increased to include the full amount of such expenditures as if such
amounts were originally set forth in the applicable budgets. Operator agrees to deliver
written notice to the Owner within three (3) Business Days of any such emergency
specifying the exact nature of the emergency and the expenditures which Operator has
made or may be additionally planning on making in order to address the repairs or other
measures required to be done in connection with the applicable emergency. The term
"Business Days"shall mean all days during which there is regular delivery of the U.S. Mail,
excluding Saturdays.
7.8. Expenditures Required for Compliance with Law. In the event that at any
time during the Term of this Agreement repairs, additions, changes, or corrections in or to
the Property shall be required by reason of any laws,ordinances, rules,or regulations, now
or hereafter in force, or by order of any governmental or municipal power, department,
agency, authority, or officer, such repairs shall be made at the direction of Operator;
provided, however, in the event that any such expenditures were not included within the
applicable budget or budgets, the applicable budget or budgets shall be automatically
increased to include the full amount of such expenditures as if such amounts were
originally set forth in the applicable budgets.
ARTICLE 8.
POSSESSION OF THE PROPERTY
On the Commencement Date, Owner shall deliver possession of the Property to
Operator.
ARTICLE 9.
UTILITIES AND SERVICES
GManagement Agreement Page 17
Operator agrees to pay all charges for utilities and services used by it on the
Property, which shall be separately metered, including, but no limited to, gas, electricity,
telephone, sanitary sewer, domestic water, fire protection, water, and trash collection.
Notwithstanding the foregoing, Owner and Operator agree that during the Term of this
Agreement,Operator shall have the option of utilizing water wells on the Real Property for
the irrigation of the Real Property at no cost except for the actual operation and
maintenance cost associated with the well and the production of the water. When it
becomes available, Owner shall have the option of replacing well water with effluent from
the wastewater treatment plant. The cost of the effluent will also be the actual operation
and maintenance cost of transporting it from the treatment plant to the Real Property.
ARTICLE 10.
OWNER'S COVENANTS AND REPRESENTATIONS
10.1. Owner's Covenants. Owner makes the following representations to Operator,
which representations shall, unless otherwise stated herein, survive the execution and
delivery of this Agreement and the Commencement Date:
10.1.1. Status. Owner is a duly formed and validly existing home rule
city of the State of Texas, governed by the Constitution and the laws of the State
of Texas.
10.1.2. Authorization. The Constitution and the laws of the State of
Texas authorize Owner to enter into this Agreement and the transactions
contemplated hereby and thereby; and to carry out its obligations under this
Agreement. The officers of Owner executing this Agreement have been duly
authorized to execute and deliver this Agreement under the terms and provisions
of a resolution or resolutions of Owner's governing body or by other appropriate
official action.
10.1.3. Compliance.' Owner has complied with all open meetings and
public bidding laws and all other State laws applicable to this Agreement and the
acquisition of the Property by Owner.
10.1.4. Governmental Agencies. As of the execution date hereof,
Owner has no knowledge of any existing conditions in or about the Property or
otherwise which violate any city, county, state or federal law, ordinance or
regulation, including, but not limited to, regulations relating to zoning and use of the
Property, and Owner has not received any notice, written or otherwise, from any
governmental agency requiring the correction of any condition with respect to the
Property which might be in violation of any law, ordinance or regulations.
10.1.5. Title to the Real Property, Existing Encumbrances. Owner has
good and indefeasible title to the Real Property, free and clear of all liens, claims
oaf,Course,,-Management Agreement Page 18
and encumbrances of any nature, except those specific items set forth on
Exhibit "D" (the "Existing Real Property Conditions").
10.1.6. Access. There is no fact or condition which would result in the
termination of the current access to the Real Property from existing roads or to
sewer and other utility services, and Owner represents that on the Commencement
Date the Real Property will enjoy access and service for sewers and all utilities
(including, but not limited to, water, sewer, electricity and telephone facilities)
available to the Real Property in sufficient quantities necessary to service the
Property for use as a public golf course facility.
10.1.7. Zoning, The Real Property is properly zoned for use as a public
golf course facility, including, but not limited to, the sale of alcoholic beverages.
10.1.8. Assessments. As of the execution date hereof, Owner has
received no notice and has no knowledge of any pending improvements, liens or
special assessments to be made against the Property by any governmental
authority.
10.1.9. Violation of Representations. From and after the execution
date hereof and until the termination of this Agreement, Owner shall not take any
action or omit to take any action which would have the effect of violating any of the
representations of Owner contained in this Agreement.
10.1.10. Violation of Agreement. Neither the execution and delivery of
this Agreement by Owner nor Owner's performance of its obligations hereunder will
result in a violation or breach of any term or provision or constitute a Default or
accelerate the performance required under any other agreement or document to
which Owner is a party, or is otherwise bound, or to which the Property, or any part
thereof, is subject, and will not constitute a violation of any law, ruling, regulation or
order to which Owner is subject.
10.1.11. Documentation. If necessary to carry out the intent of this
Agreement and as allowable by law, Owner agrees to execute and provide to
Operator, on or after the execution date hereof, any and all other instruments,
documents, conveyances, assignments and agreements which Operator may
reasonably request in connection with the operation of the Property.
10.1.12. Noninterference. If Operator shall keep and perform its
covenants,conditions and obligations hereunder,ownercovenants and agrees that
Owner will not, other than as permitted by this Agreement or required by law,
interfere in any manner with Operator's operation, possession and management of
the Property.
G,blf nurse Management Agreement Page 19
10.1.13. Litigation. Claims. or Proceedings There are no existing or
pending actions,suits,litigation,claims,proceedings orgovemmental investigations
with respect to any aspect of any of the Property or the Forest Creek Golf Course,
nor, to the knowledge of Owner, have any such actions, suits, litigation, claims,
proceedings or governmental investigations been threatened or asserted. In the
event that a lien, claim or cause of action affecting the Property or the Forest Creek
Golf Course should arise resulting from any activities by Owner prior to the
Commencement Date, Owner shall advise Operator in writing.
10.1.14. Construction Claims. Owner shall hold Operator harmless, to
the extent permitted by law, from any unpaid bills or claims in connection with the
construction of any improvements to the Property.
10.1.15. Improvements. The Improvements have been constructed and
installed in compliance with (i) all applicable laws, statutes, ordinances, codes,
covenants,conditions,and regulations,(ii)restrictions of any kind or nature affecting
the Real Property, and (iii) any occupancy classification applicable to the Forest
Creek Golf Course's operation.
10.1.16. Permits. All permits and licenses necessary for the operation
and occupancy of the Property, including, but not limited to, all building and use
permits, have been obtained for all operations of the Forest Creek Golf Course,and
no notice to revoke, suspend, or terminate same has been received by Owner.
Owner shall cooperate fully with Operator as necessary to enable Operator to
procure and/or transfer and maintain all licenses, permits or authorizations
necessary for the operation of the Property.
10.1.17. Liens. From and after the execution date hereof and until the
Commencement Date or earlier termination of this Agreement,Owner shall not sell,
assign or create any right, title, or interest whatsoever in or to the Property, or
create or permit to exist any lien, encumbrance or charge thereon,without promptly
discharging the same.
10.1.18. Contracts. There are no outstanding contracts, commitments,
leases, or agreements of any nature to which the Forest Creek Golf Course,
Operator, or the Property is or may become subject. Owner further agrees not to
enter into any contracts, commitments, leases, or agreements after the execution
date hereof to which the Forest Creek Golf Course, Operator, or the Property may
be or become subject to without the prior express written approval of Operator.
10.1.19. Owner's Violation. In the event of a violation of any of the
representations made in this Article by Owner occurring subsequent to the
execution date hereof, Owner shall promptly cure any condition created by such
violation. In the event Owner fails to promptly cure said violation, Operator may
take whatever action, at law or in equity, available to Operator as a result of said
Pp!f,,'d Management Agreement Page 20
Default, including, but not limited to, the right to (i)terminate this Agreement, or(ii)
bring suit for specific performance and/or damages sustained by Operator as a
result of Owner's Default. No remedy herein conferred upon or reserved to
Operator is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right or power accruing
upon any breach by Owner shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
ARTICLE 11.
OPERATOR'S COVENANTS AND REPRESENTATIONS
11.1. _Operator's Covenants. Operator makes the following representations to
Owner,which representations shall, unless otherwise stated herein, survive the execution
and delivery of this Agreement:
11.1.1. Corporate Status. Operator is a corporation duly organized, validly
existing, and in good standing under the laws of Texas,with full corporate power to
enter into this Agreement and execute all documents required hereunder.
11.1.2. Authorization. The making, execution, delivery, and performance of
this Agreement by Operator has been duly authorized and approved by all requisite
action of the Board of Directors of Operator, and this Agreement has been duly
executed and delivered by Operator and constitutes a valid and binding obligation
of Operator, enforceable in accordance with its terms.
11.1.3. Violation of Agreement. Neither the execution and delivery of this
Agreement by Operator nor Operator's performance of its obligations hereunderwill
result in a violation or breach of any term of provision or constitute a Default or
accelerate the performance required under any other agreement or document to
which Operator is a party or is otherwise bound or to which the Property or any part
thereof is subject, and will not constitute a violation of any law, ruling, regulation or
order to which Operator is subject.
11.1.4. Documentation. If necessary to carry out the intent of this Agreement,
Operator agrees to execute and provide to Owner, on or after the execution date
hereof, any and all other instruments, documents, conveyances, assignments and
agreements which Owner may reasonably request in connection with the operation
of the Property,including,but not limited to,an assignment of Operator's contractual
rights to all leased equipment and any licenses or permits.
ARTICLE 12.
INDEMNITY AND INSURANCE
GolQCdurp07Management Agreement Page 21
12.1. Operator's Indemnification. Operator covenants to defend and save Owner
and its officers and employees,while acting within the scope of their duties, harmless and
indemnified from and against any and all actions, suits, proceedings, claims, demands,
costs (including attorneys' fees and court costs), expenses and liability of any kind or
nature whatsoever, for injury to or death of person or damage of property including
property owned by Owner), which may be brought, made, filed against, imposed upon or
sustained by Owner, its officers or employees, based upon or arising out of an act or
omission of Operator, its officers, agents, or employees. This indemnity shall not include
claims based upon or arising out of the willful misconduct of Owner, its officers or
employees. Further, this indemnity shall not require payment of a claim by Owner or its
officers or employees as a condition precedent to Owner's recovery under this provision.
12.2. Owner's Indemnification. Owner covenants and agrees, to the extent
permitted by law, to indemnify and save Operator, Operator's affiliates, Operator's
shareholder, parent corporation, and all its respective officers, directors, legal
representatives, and employees (hereinafter referred to as the "Indemnified Parties")
harmless from any and all costs, expenses, penalties, claims, demands, and liabilities
resulting from (i) any action or claim, or otherwise, arising with respect to Owner's
operation or ownership of the Forest Creek Golf Course orthe Property,orthe construction
or acquisition of the Improvements, and (ii) any negligent act or omission of Owner or of
its invitees, agents or employees, but this indemnity shall not extend to costs, expenses,
penalties, claims, demands and liabilities resulting from acts of willful misconduct of
Operator, its employees or agents. Further, this indemnity shall not require the payment
of a claim by any of the Indemnified Parties as a condition to recovery underthis provision.
12.3. Operator's Insurance. Operator shall obtain, as Operating Expenses, the
following insurance concerning the Property and cause all contractors to maintain similar
insurance, where appropriate:
12.3.1. Worker's compensation and employer's liability insurance as may be
required under applicable laws covering all employees of Operator included in the
operation of the Forest Creek Golf Course, with such deductible limits as are
generally established by Operator;
12.3.2. Comprehensive general public liability insurance against claims for
bodily injury,death or property damage occurring on, in, or about the Property, and
automobile insurance on vehicles operated in conjunction with the Property, with a
combined single limit of not less than TWO MILLION AND NO/100 DOLLARS
($2,000,000.00)each occurrence for personal injury, death, and property damage,
with such deductible limits as are generally established by Operator;
12.3.3. Insurance on the Property, including the Improvements and Personal
Property, against loss or damage by fire, lightning, flood, earthquake, and all other
risks covered by the usual standard extended coverage endorsements, in such
amounts and with such deductible limits as established by Operator and agreed to
Golf,Course
'Management Agreement Page 22
by Owner, all in an amount of not less than ninety percent(90%)of the replacement
cost thereof; and
12.3.4. Such other insurance in amounts as Operator, in its reasonable
judgment, deems advisable for protection against claims, liabilities and losses
arising out of, or connected with, the operation of the Property.
12.3.5. All insurance provided by Operator under this Article shall name
Operator and Owner as named insureds. Operator shall deliver to Owner, at least
thirty (30) days prior to the Commencement Date, certificates of insurance with
respect to all policies so procured, including existing, additional, and renewal
policies, and in the case of insurance about to expire, shall deliver certificates of
insurance with respect to the renewal policies not less than ten (10)days priorto the
respective dates of expiration. All policies of insurance provided for under this
Article 12 shall,to the extent obtainable, have attached thereto an endorsement that
such policy shall not be canceled or materially changed without at least thirty (30)
days prior written notice to Owner and Operator.
12.4. Subrogation. Anything in this Agreement to the contrary notwithstanding,
Owner and Operator each hereby waive any and all rights of recovery, claims, actions or
causes of action against the other, its agents, officers, and employees for any loss or
damage that may occur to the Property, any personal property therein, or any
improvements made thereto, or any part thereof, or any other real or personal property of
either party by reason of fire, the elements, or any other cause which is insured against
under the term of the policies of casualty insurance that Operator or Owner are required
to provide hereunder or may otherwise carry, to the extent and only to the extent of any
proceeds actually received by Owner or Operator, respectively, with respect thereto,
regardless of cause or origin, including negligence of either party hereto, its agents,
officers, or employees, and each party covenants that no insurer shall hold any right of
subrogation against the other.
ARTICLE 13.
DESTRUCTION BY FIRE OR OTHER CASUALTY
13.1. Total Destruction. In the event that the Improvements are totally destroyed
by fire or other casualty to the extent that the damage cannot be materially restored with
due diligence within two hundred forty(240)days from the date construction commences,
Operator may, at its option, terminate this Agreement by giving written notice to the other
party within sixty (60) days following such damage or destruction. In the event of
termination of this Agreement pursuant to this Section, this Agreement shall cease and
come to an end as of the date of such damage or destruction as though such date were
the date originally fixed for the expiration of the Term of this Agreement.
13.2. Partial Destruction. In the event the Improvements are damaged by fire or
other casualty and such damage can be materially restored with due diligence within two
Golf DurSe Management Agreement Page 23
hundred forty(240)days following the date construction commences,Owner shall have the
obligation to repair the Improvements, as the case may be, as nearly as practicable to the
condition same was in prior to such damage, but in no event shall Owner be required to
expend funds in excess of proceeds of insurance received relating to the damage. Owner
shall cause such repair to be commenced with all reasonable dispatch so as to complete
the same at the earliest, reasonable, possible date.
ARTICLE 14.
CONDEMNATION
14.1. Notice of Taking. Owner shall, within ten (10) days of Owner's receipt of
notice of a proposed and/or actual taking of the Real Property, or a portion of either, under
any governmental law, ordinance or regulation, or by right of eminent domain, provide
Operator (i) written notice of such proposed or actual taking, and (ii) a copy of the
documents and/or pleadings received from the governmental authorities.
14.2. Effect of Entire Taking. If,during the Term of this Agreement,the entire Real
Property shall be appropriated or taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or under the power of eminent domain by any
public or quasi-public authority,then this Agreement and the Term hereof shall cease and
come to an end as though such date were the date originally fixed for the expiration of the
Term of this Agreement.
14.3. Effect of Partial Taking. If, during the Term of this Agreement, a portion of
the Real Property shall be appropriated or taken for any public or quasi-public use under
any governmental law, ordinance or regulation, or under the power of eminent domain by
any public or quasi-public authority so as to render the Property substantially unusable for
the purposes and in the manner contemplated herein, then, in such event, Operator shall
have the right to cancel and terminate this Agreement by giving written notice to Owner
within sixty (60) days after the receipt by Operator from Owner of written notice of such
appropriation or taking. In the event of termination of this Agreement pursuant to this
Section,then this Agreement shall cease and come to an end as of the date of such written
notice by Operator as though such date were the date originally fixed for the expiration of
the Term of this Agreement,and neither party shall have any obligation to the other arising
out of or in any way connected with this Agreement by virtue of such termination subject
to the provisions of Section 14.5 hereof.
14.3.1. In the event less than the whole of the Real Property are so
appropriated or taken and Operator does not elect to terminate this Agreement and
Operator remains in that portion of the Real Property which shall not have been
appropriated or taken,then, in such event, the rental payable hereunder to Owner
shall abate until Owner has restored (and Owner hereby agrees, at Owner's cost
and expense, to restore) the Property as far as possible to a complete unit of the
like quality and character as existed prior to such appropriation or taking.
Golf potrse Management Agreement Page 24
14.4. Operator's Award. If this Agreement is terminated pursuant to the provisions
of this Article, then the damage award to be made pursuant to the condemnation
proceedings shall be apportioned between Owner and Operator according to the value of
their respective interests in the Property and this Agreement.
ARTICLE 15.
RIGHT TO CURE
15.1. Owner's Performance. After the expiration of any permitted grace period
recited in this Agreement, if Operator shall have failed to cure any Default in the
performance of any covenant or promise on its part to be performed, Owner may,
immediately, or at any time thereafter, without further notice, perform the same for the
account and at the expense of Operator. Notwithstanding the above, in the case of an
emergency(being defined as a situation involving the immediate threat of a loss of property
or injury), Owner may, after notice to Operator, so perform in Operator's stead prior to the
expiration of any applicable grace period; provided, however, Operator shall not be
deemed in default under this Agreement.
15.2. Operator's Performance. After the expiration of any permitted grace period,
if Owner shall have failed to cure any Default in the performance of any covenant or
promise on its part to be performed, Operator may, immediately, or at any time thereafter,
without further notice, perform the same for the account and at the expense of Owner.
Notwithstanding the above, in the case of an emergency, Operator may, after notice to
Owner, so perform in Owner's stead prior to the expiration of any applicable grace period;
provided, however, Owner shall not be deemed in default under this Agreement.
15.3. Reimbursement. If, pursuant to this Article, Owner or Operator at any time
is compelled or elects to (i) pay any sum of money, (ii) do any act which will require the
payment of any sum of money, or(iii) incur any expense (including reasonable attorneys'
fees) in instituting, prosecuting and/or defending any action or proceeding instituted by
reason of Operator's or Owner's failure to reimburse, as herein provided,the sum or sums
so paid or payable by Owner or Operator, as the case may be, with all interest, costs and
damages, shall be immediately due from the other upon receipt of a statement therefor.
ARTICLE 16.
QUIET ENJOYMENT
16.1. Quiet Enjoyment. Owner, for itself, its successors and assigns, agrees that
upon the due performance and observance by Operator of the terms, covenants and
conditions contained herein, Operator shall, and may, at all times during the Term of this
Agreement, peaceably and quietly have, hold, and enjoy the Property. Within ten (10)
days of the date of the execution of this Agreement, Owner shall obtain for Operator from
any present mortgagee or mortgagees of the Property a nondisturbance agreement (the
"Nondisturbance Agreement") assuring Operator that in the event of a default and/or
foreclosure under such mortgage, Operator's possession and enjoyment of all of its rights
Golf zC,ourSeManagement Agreement Page 25
under this Agreement shall continue unimpaired. The executed Nondisturbance
Agreement shall be delivered by Owner to Operator and shall be recorded of record in the
real property records of Williamson County, Texas.
16.2. Inspection and Maintenance of Property. Operator agrees that Owner shall
have the right at all reasonable times to enter upon and to examine and inspect the
Property. Operator further agrees that Owner and any representative of Owner shall have
such rights of access to the Property as may be reasonably necessary to cause the proper
maintenance of the Property in the event of a Default herewith, or to carry out Owner's
obligations and exercise Owner's rights underArticle 18,orto determine whether Operator
is in compliance with this Agreement.
ARTICLE 17.
SALE AND ASSIGNMENT
17.1. Operator's Sale or Assignment. Operator shall not assign, sublet or permit
an assignment by operation of law of this Agreement or any interest hereunder without the
prior written approval of Owner, which approval shall not be unreasonably withheld by
Owner. If this Agreement is assigned, Owner may collect payments from such assignee
or sublessee and shall apply the net amount collected to the rental for which Operator is
obligated to pay, but no such collection shall be deemed a waiver of Owner's prior approval
or the acceptance of such assignee hereunder.
17.2. Effect of Assignment. Any person who shall by operation of law or otherwise
become an assignee of this Agreement or become vested with the leasehold interest
hereunder, or a portion thereof, shall be bound by and liable upon all covenants and
provisions contained in this Agreement, but neither Operator nor any subsequent tenant
whose interest is assigned or divested shall be relieved of liability hereunder. In the case
of any transfer or vesting of the interest hereunder, or any part thereof, either through
foreclosure proceedings or otherwise by operation of law, it shall be a condition to the
validity of such transfer or vesting of interest that, if so requested by Owner, any person
or persons claiming the leasehold interest hereunder, or any part thereof, so derived shall
promptly execute and deliver to Owner a written assumption of the obligations of Operator
hereunder, in such form so that such person or persons shall thereupon be bound by and
liable upon all the covenants and provisions of this Agreement to the same extent as was
Operator.
17.3. Owner's Sale. Lease. or Assignment In the event of the sale or assignment
of Owner's interest in this Agreement to another party, as a condition precedent to such
sale or assignment,the assign thereof("Owner's Successor")must execute an assumption
agreement providing for the assignment by Owner's Successor of all of the obligations and
liabilities of Owner under this Agreement. Additionally, in the event of the sale or lease of
the Property, the Forest Creek Golf Course or any portion thereof or in the event of the
assignment by the City of this Agreement by Owner, as a condition precedent to either of
GblfC urseU;Management Agreement Page 26
the foregoing, the City must pay in full to Operator the then current unpaid principal
balance of Operator's investment plus all accrued interest thereon.
ARTICLE 18.
EVENTS OF DEFAULT
18.1. Operator's Default. The occurrence of any of the following events which is
not cured in the time permitted herein shall constitute a default under this Agreement
(hereinafter referred to as a "Default"):
18.1.1. If Operator fails to pay any sums payable under this Agreement when
and as the same shall become due and payable, and said failure shall continue for
a period of twenty(20)days after written notice(specifying the item not paid)thereof
from Owner to Operator to cure any payment failure.
18.1.2. If Operator shall fail in the performance of or compliance with any of
the covenants, agreements,terms or conditions contained in this Agreement,other
than that referred to in the immediately preceding Paragraph, and such failure shall
continue for a period of thirty (30) days after written notice thereof from Owner to
Operator specifying in detail the nature of such failure, or, in the case such failure
cannot be cured with due diligence within thirty(30)days. Operator fails to proceed
promptly and with all due diligence to cure the same and thereafter to prosecute the
curing of such failure with all due diligence(it being intended that in connection with
a failure not susceptible of being cured with due diligence within thirty[30]days,that
the time within which to cure the same shall be extended for such period as may be
reasonably necessary to complete the same with all due diligence).
18.1.3. If the Forest Creek Golf Course shall fail to generate Gross Receipts,
during any twelve (12) month period beginning on June 1St of each calendar year
and ending on May 311 of the subsequent calendar year during the Term of this
Agreement, of at lease FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00), it shall be considered as a Default of Operator. The parties hereto
acknowledge and agree that said failure shall not be considered as a Default if any
Unavoidable Delay, as defined in Article 21 hereof, caused or significantly
contributed to such failure.
18.2. Owner's Default. The occurrence of any of the following events which is not
cured in the time permitted herein shall constitute a default under this Agreement
(hereinafter referred to as a "Default"):
18.2.1. If Owner shall fail to pay any sums payable to Operator under this
Agreement when and as the same shall become due and payable and such failure
shall continue for a period of twenty (20) days after written notice thereof from
Operator to Owner.
Q' f;C CsefManagement Agreement Page 27
18.2.2. If Owner shall fail in the performance of or compliance with any of the
covenants, agreements,terms or conditions contained in this Agreement and such
failure shall continue for a period of thirty(30)days after written notice thereof from
Operator to Owner specifying in detail the nature of such failure,or, in the case such
failure cannot, with due diligence, be cured within thirty (30) days, Owner fails to
proceed promptly and with all due diligence to cure the same and thereafter
prosecute the curing of such failure with all due diligence, it being intended that in
connection with a failure not susceptible to being cured with due diligence within
thirty (30) days, that the time within which to cure the same shall be extended for
such period as may be necessary to complete the same with all due diligence.
ARTICLE 19.
REMEDIES
19.1. Owner's Remedies. Upon the occurrence of a Default by Operatorwhich is
not cured within the time permitted, Owner shall be entitled to proceed with the following
remedies as set forth below:
19.1.1. Right to Remedy Defaults of Operator. Owner may remedy any
Default of Operator, and in connection with such remedy, Owner may pay all
expenses and employ counsel, and all sums so expended or obligations incurred
by Owner in connection therewith shall be paid by Operatorto Owner,upon demand
by Owner, and on failure of such reimbursement, Owner may at Owner's option,
deduct all costs and expenses incurred in connection with remedying a Default of
Operator from the next sums subsequently becoming due to Operator from Owner
under the terms of this Agreement.
19.1.2. Right to Terminate Agreement. Owner may terminate this Agreement
by Owner's written notice of termination to Operator. Upon receipt of Owner's
notice of termination of this Agreement, Operator shall surrender possession of the
Real Property, Owner's Personal Property and the Improvements to Owner and
assist in an orderly transfer of the operation to another management entity or
Owner; provided, however, in the event of the termination of this Agreement arising
from a Default by Operator which is not cured within the time permitted, the parties
stipulate and agree that in the event of such termination of this Agreement, the
unpaid or unreimbursed portion of any amounts owed to Operator including, but not
limited to, any Prior Management Fees, Current Management Fees, and interest
thereon, shall be deemed to be paid in full not as a penalty but as liquidated
damages for the Default by Operator as Owner's sole and exclusive remedy
hereunder.
19.1.3. Remedies Not Exclusive with Specific Exceptions Save and except
for (i) the remedy of having the unpaid portion of the Prior Management Fees and
any reimbursed amounts owed to Operator, being deemed to have been paid in full
in the event of a Default by Operator which is not cured and the termination of this
Golf PY, Management Agreement Page 28
Agreement arising from such Default as provided in Section 19.1.2 hereof, and (ii)
the exercise by Owner of the Option To Terminate in accordance with the provisions
of Section 19.1.4 hereof, no remedy granted to Owner is intended to be exclusive
of any other remedy herein or by law provided, but each shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law, in equity or by statute. No delay or omission of Owner to exercise
any right or power accruing upon any Default shall impair Owner's exercise of any
right or power or shall be construed to be a waiver of any Default or acquiescence
therein.
19.2. Operator's Remedies. Upon the occurrence of a Default which is not
cured by Owner within the time permitted, Operator and/or Declarant shall be entitled to
proceed with any or all of the following remedies:
19.2.1. Right to Remedy Defaults of Owner. Operator may remedy any
Default of Owner,and in connection with such remedy,Operator may pay all expenses and
employ counsel, and al sums so expended or obligations incurred by Operator in
connection therewith shall be paid by Owner to Operator, upon demand by Operator, and
on failure of such reimbursement, Operator may,at Operator's option,deduct all costs and
expenses incurred in connection with remedying a Default of Owner from the next sums
subsequently becoming due to Owner from Operator under the terms of this Agreement.
19.2.2. Right to Terminate Agreement. Operator may terminate this
Agreement by Operator's written notice of termination to Owner.
No remedy granted to operator is intended to be exclusive of any other remedy
herein or by law provided, but each shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law, in equity or by statute.
No delay or omission of Operator to exercise any right or power accruing upon any Default
shall impair Operator's exercise of any right or power or shall be construed to be a waiver
of any Default or acquiescence therein.
19.3. Attorneys' Fees. In the event Operator or Owner should Default under any
of the provisions of this Agreement and the nondefaulting party should employ attorneys
or incur other expenses for the enforcement of performance or observance of any
obligation or agreement on the part of the defaulting party, the defaulting party shall, on
demand therefor, pay to the nondefaulting party the reasonable fees of such attorneys and
such other expenses reasonably incurred.
ARTICLE 20.
TERMINATION
20.1. Termination. The Term of this Agreement shall terminate on the occurrence
of any of the events set forth in Paragraphs 20.1.1 through 20.1.4 below:
ggtf,i,Paurse'Management Agreement Page 29
20.1.1. A Default by Operator which is not cured within the time permitted and
Owner sends to Operator a written notice of termination for cause;
20.1.2. A Default by Owner which is not cured within the time permitted and
Operator sends to Owner a written notice of termination for cause;
20.1.3. The expiration of the Term of this Agreement; and
20.1.4. In the event that Owner delivers written notice of the exercise by
Owner of the Early Termination Option in accordance with the provisions of Section
4.1 hereof.
ARTICLE 21.
UNAVOIDABLE DELAYS
The provisions of this Article shall be applicable if there shall occur during the Term
of this Agreement or prior to the Commencement Date any of the following (hereinafter
collectively referred to as"Unavoidable Delays"): (i)acts of God,governmental restrictions,
regulations or controls,enemy or hostile governmental action,civil commotion,fire,or other
casualty; or (ii) other conditions similar to those enumerated in this Article beyond the
reasonable control of the party obligated to perform. As the result of any of the above
described events, if Owner or Operator shall fail punctually to perform any obligation on its
part to be performed under this Agreement, then, upon written notice to the other, within
ten (10) days of such event, such failure shall be excused and not be a breach of this
Agreement by the party claiming an unavoidable delay, but only to the extent occasioned
by such event. If any right or option of either party to take any action under or with respect
to the Term of this Agreement is conditioned upon the same being exercised within any
prescribed period of time or at or before a named date,then such prescribed period of time
or such named date shall be deemed to be extended or delayed, as the case may be, upon
written notice, as provided above, for a time equal to the period of the unavoidable delay.
Notwithstanding anything contained herein to the contrary, the provisions of this Article
shall not be applicable to Operator's or Owner's obligation to pay any sums, monies,costs,
charges or expenses required to be paid pursuant to the terms of this Agreement.
ARTICLE 22.
OPERATOR'S OBLIGATIONS
22.1. Independent Corporation. Owner recognizes and acknowledges that
Operator is an independent corporation, chartered under the laws of the State of Texas,
and is solely responsible forthe obligations and liabilities recited herein,arising hereunder,
or in any manner related to the transactions contemplated hereby, and Owner further
recognizes and acknowledges that no other entity or entities, including (i) the parent
corporation of Operator, Golf Holding, Inc., (ii) any officer, employee or individual, or (iii)
any corporation affiliated with Operator, is in any manner liable or responsible for the
Golf CoUWManagement Agreement Page 30
obligations and liabilities of Operator, whether recited herein, arising hereunder, or in any
manner related to the transactions contemplated hereby.
22.2. Entire Agreement. This Agreement embodies the entire agreement and
understanding of Owner and Operator relating to the subject matter hereof and supersedes
all prior representations, agreements and understandings, oral or written, relating to such
subject matter. Neither this Agreement nor any provision hereof may be amended,
enlarged, modified,waived,discharged orterminated orally, but only as expressly provided
herein or by an instrument signed by Owner and Operator.
ARTICLE 23.
NOTICES
Any notices or other communications required or permitted hereunder shall be
sufficiently given if in writing and(i)delivered personally,(ii)forwarded by prepaid telegram,
or (iii) sent by certified mail, return receipt requested, postage prepaid, addressed as
shown below, or to such other address as the party concerned may substitute by written
notice to the other. All notices personally delivered shall be deemed received on the date
of delivery. All notices forwarded by prepaid telegram shall be deemed received two (2)
days after the date same are sent. All notices forwarded by mail shall be deemed received
on a date seven (7)days (excluding Sundays and holidays) immediately following date of
deposit in the U.S. mail; provided, however, the return receipt indicating the date upon
which all notices were received shall be p6ma facie evidence that such notices were
received on the date on the return receipt.
If to Owner: CITY OF ROUND ROCK, TEXAS
221 East Main
Round Rock, Texas 78664
Attention: City Manager
With a copy to:
Stephan L. Sheets
309 East Main
Round Rock, Texas 78664
If to Operator: CCA SILBAND/GOLFCORP/ROUND ROCK, INC.
3030 LBJ Freeway, Suite 700
Dallas, Texas 75234
Attention: General Counsel
Golf Gourse Management Agreement Page 31
With a copy to:
CCA Silband/GolfCorp/Round Rock, Inc.
d/b/a Forest Creek Golf Club
99 Twin Ridge Parkway
Round Rock, Texas 78664-9603
Attention: General Manager
The addresses and addressees may be changed by giving notice of such change
in the manner provided herein for giving notice. Unless and until such written notice is
received, the last address and addressee given shall be deemed to continue in effect for
all purposes. No notice to either Owner or Operator shall be deemed given or received
unless the entity noted "With a copy to" is simultaneously delivered notice in the same
manner as any notice given to either Owner or Operator.
ARTICLE 24.
GENERAL PROVISIONS
24.1. No Broker. Owner and Operator each warrant that no real estate broker or
person acting as such was consulted or dealt with by them in connection with or had any
part in interesting them to enter into this Agreement. Each party shall hold the other
harmless from any liability or expense incurred by the other party because of any claim for
commission, fees or other compensation made by any real estate broker or other person
based on claims contrary to this warranty.
24.2. Counterparts. This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
24.3. Successors and Assigns. This Agreement and the terms and provisions
hereof shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns whenever the context so requires or permits.
24.4. Time. Time is of the essence in this Agreement and each and all of its
provisions. Any extension of time granted for the performance of any duty or obligation
under this Agreement shall not be considered an extension of time for the performance of
any other duty or obligation under this Agreement.
24.5. Severability. Except as expressly provided to the contrary herein, each
section, part, term, or provision of this Agreement shall be considered severable, and if for
any reason any section, part, term, or provision herein is determined to be invalid and
contrary to or in conflict with any existing or future law or regulation by a court or agency
having valid jurisdiction, such determination shall not impair the operation of or have any
other effect on other sections, parts,terms,or provisions of this Agreement as may remain
otherwise intelligible, and the latter shall continue to be given full force and effect and bind
gWpor a Management Agreement Page 32
the parties hereto, and said invalid sections, parts, terms, or provisions shall be deemed
not to be a part of this Agreement.
24.6. Applicable Law. This Agreement has been executed and delivered in the
State of Texas and shall be construed in accordance with the laws of the State of Texas.
Any action brought to enforce or interpret this Agreement shall be brought in the court of
appropriate jurisdiction in the jurisdiction in which the Property is located. Should any
provision of this Agreement require judicial interpretation, it is agreed that the court
interpreting or considering same shall not apply the presumption that the terms hereof shall
be more strictly construed against a party by reason of the rule or conclusion that a
document should be construed more strictly against the party who itself or through hits
agent prepared the same; it being agreed that all parties hereto have participated in the
preparation of this Agreement and that legal counsel was consulted by each responsible
party before the execution of this Agreement.
24.7. Amendment and Waiver. This Agreement may not be amended or modified
in any way except by an instrument in writing executed by all parties hereto; provided,
however, either Owner or Operator may, in writing, (i)extend the time for performance of
any of the obligations of the other, (ii)waive any inaccuracies and representations by the
other contained in this Agreement, (iii) waive compliance by the other with any of the
covenants contained in this Agreement,and(iv)waive the satisfaction of any condition that
is precedent to the performance by the party so waiving any of its obligations under this
Agreement.
24.8. No Joint Venture. Nothing contained herein shall be deemed or construed
by the parties hereto or by any third party as creating the relationship of(i)principal agent,
(ii) a partnership, or (iii) a joint venture between the parties hereto.
24.9. Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as if fully set forth herein; provided, however, in the event that at the time of the
execution of this Agreement any of the Exhibits to be attached are incomplete, the parties
shall use their best efforts to complete such Exhibits at the earliest possible date. To the
extent this Agreement may be rendered unenforceable by the lack of completion of any of
the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete
in accordance with this Section, except to the extent that such Exhibits are deemed and
stipulated by the parties to be complete on the execution of this Agreement by the parties
hereto. If any Exhibits are subsequently changed by the mutual written agreement of the
parties, the Exhibits shall be modified to reflect such change or changes and initialed by
the parties.
24.10. Caption. Captions, titles to sections, and paragraph headings used herein
are for convenience or reference and shall not be deemed to limit or alter any provision
hereof.
Golf Course°Management Agreement Page 33
24.11. Survival. All covenants,agreements,representations,and warranties
made herein shall survive the execution and delivery of this Agreement. All other
documents and instruments to be executed and delivered in accordance herewith shall
continue in full force and effect.
24.12. Governing Document. This Agreement shall govern in the event of
any inconsistency between this Agreement and any of the Exhibits attached hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their proper, duly authorized corporate officers, all as of the day and year first
above set forth.
OWNER:
Attest: CITY OF ROUND ROCK, TEXAS
By: By:
Name:
Title:
OPERATOR:
Attest: CCA SILBAND/GOLFCORP/ROUND
ROCK, INC.
By; By:
Name:
Title:
WAFSTCRK29\Retrade2\050100 Mgmt Agrl.doc
Prepared by Hcnslee and Cassidy,L.L.P.
Go1f,C0urse`Management Agreement Page 34
City of Round Rook,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09101/2000 46,000.00
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
5 10/01/2000 46,000.00
6 11/01/2000 36,671.28
7 12/01/2000 36,671.28
8 01/01/2001 36,671.28
9 02/01/2001 36,671.28
10 03/01/2001 36,671.28
11 04/01/2001 36,671.28
12 05/01/2001 60,000.00
Total 510,027.70 440.055.40
13 06/01/2001 46,000.00
14 07/01/2001 46,000.00
15 08/01/2001 46,000.00
16 09/01/2001 46,000.00
17 10/01/2001 46,000.00
18 11/01/2001 36,671.28
19 12/01/2001 36,671.28
20 01/01/2002 36,671.28
21 02/01/2002 36,671.28
22 03/01/2002 36,671.28
23 04/01/2002 36,671.28
24 05/01/2002 60,000.00
Total 510-027.70 440 055.40
25 06/01/2002 46,000.00
26 07/01/2002 46,000.00
27 08/01/2002 46,000.00
28 09/01/2002 46,000.00
29 10/01/2002 46,000.00 (*)Debt service payments are to be
30 11/01/2002 36,671.28 made according to this schedule
31 12/01/2002 36,671.28 from gross receipts to the extent
32 01/01/2003 36,671.28 they are available. Once the full
33 02/01/2003 36,671.28 amount of the annual bond debt
34 03/01/2003 36,671.28 payment has been funded, no
35 04/01/2003 36,671.28 further payment will be due during
36 05/01/2003 60,000.00 that term year.
Total 510 027.70 440 055.40
G L F2000A.WK4
City of Round Rock,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
37 06/01/2003 46,000.00
38 07/01/2003 46,000.00
39 08/01/2003 46,000.00
40 09/01/2003 46,000.00
41 10/01/2003 46,000.00
42 11/01/2003 36,671.28
43 12/01/2003 36,671.28
44 01/01/2004 36,671.28
45 02/01/2004 36,671.28
46 03/01/2004 36,671.28
47 04/01/2004 36,671.28
48 05/01/2004 60,000.00
Total 510.027.70 440,055.40
49 06/01/2004 46,000.00
50 07/01/2004 46,000.00
51 08/01/2004 46,000.00
52 09/01/2004 46,000.00
53 10/01/2004 46,000.00
54 11/01/2004 36,671.28
55 12/01/2004 36,671.28
56 01/01/2005 36,671.28
57 02/01/2005 36,671.28
58 03/01/2005 36,671.28
59 04/01/2005 36,671.28
60 05/01/2005 60 000.00
Total 510 027.70 440 055.40
61 06/01/2005 46,000.00
62 07/01/2005 46,000.00
63 08/01/2005 46,000.00
64 09/01/2005 46,000.00
65 10/01/2005 46,000.00 (*)Debt service payments are to be
66 11/01/2005 36,671.28 made according to this schedule
67 12/01/2005 36,671.28 from gross receipts to the extent
68 01/01/2006 36,671.28 they are available. Once the full
69 02/01/2006 36,671.28 amount of the annual bond debt
70 03/01/2006 36,671.28 payment has been funded,no
71 04/01/2006 36,671.28 further payment will be due during
72 05/01/2006 60,000.00 that term year.
Total 510 027.70 440,055.40
G LF2000A.W K4
City of Round Rock,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
73 06/01/2006 46,000.00
74 07/01/2006 46,000.00
75 08/01/2006 46,000.00
76 09/01/2006 46,000.00
77 10/01/2006 46,000.00
78 11/01/2006 36,671.28
79 12/01/2006 36,671.28
80 01/01/2007 36,671.28
81 02/01/2007 36,671.28
82 03/01/2007 36,671.28
83 04/01/2007 36,671.28
84 05/01/2007 60,000.00
Total 510,027.70 440,055.40
85 06/01/2007 46,000.00
86 07/01/2007 46,000.00
87 08/01/2007 46,000.00
88 09/01/2007 46,000.00
89 10/01/2007 46,000.00
90 11/01/2007 36,671.28
91 12/01/2007 36,671.28
92 01/01/2008 36,671.28
93 02/01/2008 36,671.28
94 03/01/2008 36,671.28
95 04/01/2008 36,671.28
96 05/01/2008 60,000.00
Total 510,027.70 440-055.40
97 06/01/2008 46,000.00
98 07/01/2008 46,000.00
99 08/01/2008 46,000.00
100 09/01/2008 46,000.00
101 10/01/2008 46,000.00 (')Debt service payments are to be
102 11/01/2008 36,671.28 made according to this schedule
103 12/01/2008 36,671.28 from gross receipts to the extent
104 01/01/2009 36,671.28 they are available. Once the full
105 02/01/2009 36,671.28 amount of the annual bond debt
106 03/01/2009 36,671.28 payment has been funded,no
107 04/01/2009 36,671.28 further payment will be due during
108 05/01/2009 60,000.00 that term year.
Total 510,027.70 440,055.40
GLF2000A.WK4
City of Round Rocl%Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
109 06/01/2009 46,000.00
110 07/01/2009 46,000.00
111 08/01/2009 46,000.00
112 09/01/2009 46,000.00
113 10/01/2009 46,000.00
114 11/01/2009 36,671.28
115 12/01/2009 36,671.28
116 01/01/2010 36,671.28
117 02/01/2010 36,671.28
118 03/01/2010 36,671.28
119 04/01/2010 36,671.28
120 05/01/2010 60,900.00
Total 510,027.70 440,055.40
121 06/01/2010 46,000.00
122 07/01/2010 46,000.00
123 08/01/2010 46,000.00
124 09/01/2010 46,000.00
125 10/01/2010 46,000.00
126 11/01/2010 36,671.28
127 12/01/2010 36,671.28
128 01/01/2011 36,671.28
129 02/01/2011 36,671.28
130 03/01/2011 36,671.28
131 04/01/2011 36,671.28
132 05/01/2011 60,000.00
Total 510,027.70 440,055.40
133 06/01/2011 46,000.00
134 07/01/2011 46,000.00
135 08/01/2011 46,000.00
136 09/01/2011 46,000.00
137 10/01/2011 46,000.00 (*)Debt service payments are to be
138 11/01/2011 36,671.28 made according to this schedule
139 12/01/2011 36,671.28 from gross receipts to the extent
140 01/01/2012 36,671.28 they are available. Once the full
141 02/01/2012 36,671.28 amount of the annual bond debt
142 03/01/2012 36,671.28 payment has been funded,no
143 04/01/2012 36,671.28 further payment will be due during
144 05/01/2012 60,000.00 that term year.
Total 510 027.70 440,055.40
G L F2000A.WK4
City of Round Rock,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
145 06/01/2012 46,000.00
146 07/01/2012 46,000.00
147 08/01/2012 46,000.00
148 09/01/2012 46,000.00
149 10/01/2012 46,000.00
150 11/01/2012 36,671.28
151 12/01/2012 36,671.28
152 01/01/2013 36,671.28
153 02/01/2013 36,671.28
154 03/01/2013 36,671.28
155 04/01/2013 36,671.28
156 05/01/2013 60.000.00
Total 510,027.70 440,055.40
157 06/01/2013 46,000.00
158 07/01/2013 46,000.00
159 08/01/2013 46,000.00
160 09/01/2013 46,000.00
161 10/01/2013 46,000.00
162 11/01/2013 36,671.28
163 12/01/2013 36,671.28
164 01/01/2014 36,671.28
165 02/01/2014 36,671.28
166 03/01/2014 36,671.28
167 04/01/2014 36,671.28
168 05/01/2014 60-000.00
Total 510,027.70 440,055.40
169 06/01/2014 46,000.00
170 07/01/2014 46,000.00
171 08/01/2014 46,000.00
172 09/01/2014 46,000.00
173 10/01/2014 46,000.00 (*)Debt service payments are to be
174 11/01/2014 36,671.28 made according to this schedule
175 12/01/2014 36,671.28 from gross receipts to the extent
176 01/01/2015 36,671.28 they are available. Once the full
177 02/01/2015 36,671.28 amount of the annual bond debt
178 03/01/2015 36,671.28
payment has been funded, no
179 04/01/2015 36,671.28 further payment will be due during
180 05/01/2015 60,000.00 that term year.
Total 510,027.70 440 055.40
GLF2000A.WK4
City of Round Roca,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
181 06/01/2015 46,000.00
182 07/01/2015 46,000.00
183 08/01/2015 46,000.00
184 09/01/2015 46,000.00
185 10/01/2015 46,000.00
186 11/01/2015 36,671.28
187 12/01/2015 36,671.28
188 01/01/2016 36,671.28
189 02/01/2016 36,671.28
190 03/01/2016 36,671.28
191 04/01/2016 36,671.28
192 05/01/2016 60 000.00
Total 510,027.70 440,055.40
193 06/01/2016 46,000.00
194 07/01/2016 46,000.00
195 08/01/2016 46,000.00
196 09/01/2016 46,000.00
197 10/01/2016 46,000.00
198 11/01/2016 36,671.28
199 12/01/2016 36,671.28
200 01/01/2017 36,671.28
201 02/01/2017 36,671.28
202 03/01/2017 36,671.28
203 04/01/2017 36,671.28
204 05/01/2017 60,000.00
Total 510,027.70 440,055.40
205 06/01/2017 46,000.00
206 07/01/2017 46,000.00
207 08/01/2017 46,000.00
208 09/01/2017 46,000.00
209 10/01/2017 46,000.00 (*)Debt service payments are to be
210 11/01/2017 36,671.28 made according to this schedule
211 12/01/2017 36,671.28 from gross receipts to the extent
212 01/01/2018 36,671.28 they are available. Once the full
213 02/01/2018 36,671.28 amount of the annual bond debt
214 03/01/2018 36,671.28
payment has been funded,no
215 04/01/2018 36,671.28 further payment will be due during
216 05/01/2018 60 000.00 that term year.
Total 510-027.70 440 055.40
CSI 1=9n00A WK4
City of Round Rock,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
217 06/01/2018 46,000.00
218 07/01/2018 46,000.00
219 08/01/2018 46,000.00
220 09/01/2018 46,000.00
221 10/01/2018 46,000.00
222 11/01/2018 36,671.28
223 12/01/2018 36,671.28
224 01/01/2019 36,671.28
225 02/01/2019 36,671.28
226 03/01/2019 36,671.28
227 04/01/2019 36,671.28
228 05/01/2019 60.000.00
Total 510,027.70 440,055.40
229 06/01/2019 46,000.00
230 07/01/2019 46,000.00
231 08/01/2019 46,000.00
232 09/01/2019 46,000.00
233 10/01/2019 46,000.00
234 11/01/2019 36,671.28
235 12/01/2019 36,671.28
236 01/01/2020 36,671.28
237 02/01/2020 36,671.28
238 03/01/2020 36,671.28
239 04/01/2020 36,671.28
240 05/01/2020 60,000.00
Total 510,027.70 440,055.40
241 06/01/2020 46,000.00
242 07/01/2020 46,000.00
243 08/01/2020 46,000.00
244 09/01/2020 46,000.00
245 10/01/2020 46,000.00 (~)Debt service payments are to be
246 11/01/2020 36,671.28 made according to this schedule
247 12/01/2020 36,671.28 from gross receipts to the extent
248 01/01/2021 36,671.28 they are available. Once the full
249 02/01/2021 36,671.28 amount of the annual bond debt
250 03/01/2021 36,671.28 payment has been funded,no
251 04/01/2021 36,671.28 further payment will be due during
252 05/01/2021 60,000.00 that term year.
Total 510,027.70 440.055.40
GLF2000A.WK4
City of Round Rock,Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
253 06/01/2021 46,000.00
254 07/01/2021 46,000.00
255 08/01/2021 46,000.00
256 09/01/2021 46,000.00
257 10/01/2021 46,000.00
258 11/01/2021 36,671.28
259 12/01/2021 36,671.28
260 01/01/2022 36,671.28
261 02/01/2022 36,671.28
262 03/0112022 36,671.28
263 04/01/2022 36,671.28
264 05/01/2022 60,000.00
Total 510,027.70 440 055.40
265 06/01/2022 46,000.00
266 07/01/2022 46,000.00
267 08/01/2022 46,000.00
268 09/01/2022 46,000.00
269 10/01/2022 46,000.00
270 11/01/2022 36,671.28
271 12/01/2022 36,671.28
272 01/01/2023 36,671.28
273 02/01/2023 36,671.28
274 03/01/2023 36,671.28
275 04/01/2023 36,671.28
276 05/01/2023 60.000.00
Total 510.027.70 440,055.40
277 06/01/2023 46,000.00
278 07/01/2023 46,000.00
279 08/01/2023 46,000.00
280 09/01/2023 46,000.00
281 10/01/2023 46,000.00 (')Debt service payments are to be
282 11/01/2023 36,671.28 made according to this schedule
283 12/01/2023 36,671.28 from gross receipts to the extent
284 01/01/2024 36,671.28 they are available. Once the full
285 02/01/2024 36,671.28 amount of the annual bond debt
286 03/01/2024 36,671.28 payment has been funded,no
287 04/01/2024 36,671.28 further payment will be due during
288 05/01/2024 60 000.00 that term year.
Total 510 027.70 440,055.40
GLF2000A.WK4
City of Round Rock,Texas .
Exhibit A
Monthly Debt Payment Schedule
MONTHLY CITY
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
289 06/01/2024 46,000.00
290 07/01/2024 46,000.00
291 08/01/2024 46,000.00
292 09/01/2024 46,000.00
293 10/01/2024 46,000.00
294 11/01/2024 36,671.28
295 12/01/2024 36,671.28
296 01/01/2025 36,671.28 (')Debt service payments are to be
297 02/01/2025 36,671.28 made according to this schedule
298 03/01/2025 36,671.28 from gross receipts to the extent
299 04/01/2025 36,671.28 they are available. Once the full
300 05/01/2025 60 000.00 amount of the annual bond debt
payment has been funded,no
Total 510,027.70 440,055.40 further payment will be due during
that term year.
Grand Total 11.001.385.00
GLF2000A.WK4
Oity-of Mound Rock,Texas
Exhibit B
Summary Bonds Debt Payments-
Golf Portion-1995 C.O. & 1997 G.O
Due
Date Amount Total
12/01/00 $220,028
06/01/01 220,028 $440,055
12/01/01 220,028
06/01/02 220,028 440,055
12/01/02 220,028
06/01/03 220,028 440,055
12/01/03 220,028
06/01/04 220,028 440,055
12/01/04 220,028
06/01/05 220,028 440,055
12/01/05 220,028
06/01/06 220,028 440,055
12/01/06 220,028
06/01/07 220,028 440,055
12/01/07 220,028
06/01/08 220,028 440,055
12/01/08 220,028
06/01/09 220,028 440,055
12/01/09 220,028
06/01/10 220,028 440,055
12/01/10 220,028
06/01/11 220,028 440,055
12/01/11 220,028
06/01/12 220,028 440,055
12/01/12 220,028
06/01/13 220,028 440,055
12/01/13 220,028
06/01/14 220,028 440,055
GLF2000A.WK4
O9ty'of Round Rock, Texas
Exhibit B
Summary Bonds Debt Payments-
Golf Portion-1995 C.O. & 1997 G.O
Due
Date Amount Total
12/01/14 220,028
06/01/15 220,028 440,055
12/01/15 220,028
06/01/16 220,028 440,055
12/01/16 220,028
06/01/17 220,028 440,055
12/01/17 220,028
06/01/18 220,028 440,055
12/01/18 220,028
06/01/19 220,028 440,055
12/01/19 220,028
06/01/20 220,028 440,055
12/01/20 220,028
06/01/21 220,028440,055
12/01/21 220,028
06/01/22 220,028 440,055
12/01/22 220,028
06/01/23 220,028 440,055
12/01/23 220,028
06/01/24 220,028 440,055
12/01/24 220,028
06/01/25 220,028 440,055
Grand Total 11.001.384
GLF2000A.WK4
DATE: May 19, 2000
SUBJECT: City Council Meeting—May 25, 2000
ITEM: 11.A.1. Consider a resolution authorizing the Mayor to execute a Golf
Course Management Agreement for the Forest Creek Golf
Course. The Management Agreement between the City of Round
Rock (owner) and CCA Silband/Golfcorp/Round Rock, Inc.
(operator)which began on May 1, 1995 expired at the end of April
2000. The City and the operator propose to enter into a new
management agreement be renewed under basically the same terms
as the previous agreement. Staff Resource Person: David Kautz,
Finance Director.
EXECUTED
DOCUMENT
FOLLOWS
.Y
GOLF COURSE
MANAGEMENT AGREEMENT
BY AND BETWEEN
THE CITY OF ROUND ROCK, TEXAS
("Owner")
AND
CCA SILBAND/GOLFCORP/ROUND ROCK, INC.
("Operator")
May 1, 2000
C:\WPDOCS\ACITY\GolfCourse\Mgmt Agr_F nal.wpd/sls
GOLF COURSE MANAGEMENT AGREEMENT
THIS GOLF COURSE MANAGEMENT AGREEMENT ("Agreement'), dated the 1st
day of May, 2000, by and between the CITY OF ROUND ROCK, TEXAS, a home rule city
(hereinafter referred to as"Owner"),and CCA SILBAND/GOLFCORP/ROUND ROCK, INC.,
a Texas corporation (hereinafter referred to as "Operator") is as follows:
RECITALS
WHEREAS, Owner is the owner of the Real Property, as hereinafter defined, upon
which there is an 18-hole golf course facility with improvements, known as "Forest Creek
Golf Course," together with all furniture, fixtures, and equipment required to be located
thereon for the purpose of operating said 18-hole golf course and related amenities; and
WHEREAS, Operator and Owner previously entered into an Amended and Restated
Management Agreement dated October 24, 1995 (the "Prior Management Agreement'),
providing for the management and operation by Operator of the Forest Creek Golf Course
which Prior Management Agreement expired by its own terms on April 30, 2000; and
WHEREAS, both Owner and Operator are desirous of entering into this new
Agreement for the continued management and operation by Operator of the Forest Creek
Golf Course;
NOW, THEREFORE,for and in consideration of the mutual promises and covenants
contained herein, Owner and Operator agree as follows:
ARTICLE 1.
PRIOR MANAGEMENT AGREEMENT TERMINATED
AND RELEASE OF LIMITED GUARANTY AGREEMENT
1.1. Prior Management Agreement Status. The Owner and Operator agree that the
Prior Management Agreement is terminated and of no further force or effect. Owner and
Operator both hereby mutually release and discharge the other party from any and all
liabilities and obligations of any nature whatsoever, whether known or unknown, arising
directly or indirectly,out of or in connection with the Prior Management Agreement save and
except for the obligation of Owner to pay to Operator, Prior Management Fees in accordance
with the provisions of Article 5 hereof which both Owner and Operator agree and confirm is
a continuing obligation of Owner and such obligation shall not be released or terminated
except by payment by Owner to Operator of Prior Management Fees, plus all interest
accrued on the Prior Management Fees in accordance with the provisions ofthis Agreement.
Golf Course Management Agreement Page 1
ARTICLE 2.
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the meanings
indicated:
2.1. Annual Capital Budget. The term "Annual Capital Budget" shall have the
meaning set forth in Section 7.5.
2.2. Annual Operations Budget. The term "Annual Operations Budget"shall have
the meaning set forth in Section 7.4.
2.3. Base Management Fee. The term "Base Management Fee" shall have the
meaning as defined in Section 5.1.1.
2.4. Base Year Consumer Price Index. The term "Base Year Consumer Price
Index" shall mean the Consumer Price Index for the month of June, 2000.
2.5. Capital Reserve. The term"Capital Reserve"shall mean those amounts at any
given time funded into an account in Owner's name for (i) capital replacements and
improvements within and to the Forest Creek Golf Course, (ii) funding of the payment by
Operator of the payments required to be made by Operator to Owner in accordance with the
provisions of Section 5.3 in the amount of the Monthly Debt Payments, or (iii) payment of
amounts due Operator under Section 5.2. At the conclusion of each Fiscal Month, Operator
shall credit to the Capital Reserve account established,an amount equal to six percent(6%)
of the Green Fees for the preceding Fiscal Month.
2.6. Commencement Date. The term "Commencement Date" shall mean May 1,
2000.
2.7. Consumer Price Index. The term "Consumer Price Index" shall mean the
Consumer Price Index forAll Urban Consumers,All Items(1982-84= 100),from time to time
published by the Bureau of Labor Statistics, United States Department of Labor for Austin,
Texas, or if none is published for such city, then the metropolitan area closest to Austin,
Texas, for which the Bureau of Labor Statistics does publish such information. In the event
that the Consumer Price Index shall be discontinued, the Bureau of Labor Statistics shall be
requested to furnish a new index comparable to the Consumer Price Index, together with
information which will make possible the conversion of the new index. If for any reason the
Bureau of Labor Statistics does not furnish such index and information, the parties hereto
shall thereafter accept and use such other index or comparable statistics regarding the cost
of living for Austin, Texas, or the closest metropolitan area for which the Bureau of Labor
Statistics does publish such information,
Golf Course Management Agreement Page 2
as the case may be, which shall be computed and published by an agency of the United
States or by a financial periodical or recognized authority then to be selected by the parties.
2.8. Current Management Fees. The term"Current Management Fees"shall have
the meaning as defined in Section 5.1 hereof.
2.9. Default. The term "Default" shall have the meaning as defined in Article 18
hereof.
2.10. Easements and Rights. The term"Easements and Rights'shall mean all rights
of access, easements, rights-of-way, and any other property rights which allow Owner, its
agents or assigns, Operator and/or any other party, the right to use, gain access to, or
otherwise benefit the Real Property, including, but not limited to,the right to use all adjacent
roads, streets, gates, utility lines and water rights owned by Owner and required for the
operation of the Property.
2.11. Financial Statements. The term"Financial Statements"shall mean a balance
sheet of the Property as of the close of a fiscal period and statements of Gross Receipts and
Expenses for that portion of the Fiscal Year then ended, applied on a basis consistent with
that of the preceding period or containing disclosure of the effect on the financial position or
results of operations of any change during the period.
2.12. Fiscal Month. The term "Fiscal Month" shall mean a consecutive 28-day
period, or a portion thereof, during a Fiscal Year, commencing on the first day following the
termination of the prior Fiscal Month. The first Fiscal Month of each Fiscal Year shall
commence on the first day of each Fiscal Year; provided, however,that for purposes hereof,
the first Fiscal Month may be a short Fiscal Month commencing on the first day of the first
Fiscal Month beginning on or after the Commencement Date and ending on that date which
would have been the ending date for such Fiscal Month if such Fiscal Month had been part
of a Fiscal Year commencing on the Monday following the last Sunday in the December
immediately preceding the Commencement Date.
2.13. Fiscal Quarter. The term"Fiscal Quarter"shall mean a fourth of a Fiscal Year.
There shall be four(4) Fiscal Quarters in each Fiscal Year, the first three (3) of which shall
consist of three (3) Fiscal Months. The first Fiscal Quarter of each Fiscal Year shall
commence on the first day of each Fiscal Year and the last Fiscal Quarter shall end on the
last day of the Fiscal Year; provided, however, that for purposes hereof, the first Fiscal
Quarter may be a short Fiscal Quarter beginning on the first day of the first Fiscal Month
beginning on or after the Commencement Date and ending on that date which would have
been the ending date for such Fiscal Quarter if such Fiscal Quarter had been part of a Fiscal
Year commencing on the Wednesday following the last Tuesday in the December
immediately preceding the Commencement Date.
Golf Course Management Agreement Page 3
2.14. Fiscal Year. The term "Fiscal Year" shall mean a period commencing on the
Wednesday following the last Tuesday in December during each calendar year and ending
on the last Tuesday of the following December; provided, however,that for purposes hereof,
the first Fiscal Year may be a short Fiscal Year commencing on the first day of the first Fiscal
Month beginning on or after the Commencement Date and ending on the last Tuesday of the
following December.
2.15. Forest Creek Golf Course. The term "Forest Creek Golf Course" shall mean
the 18-hole golf course located on the Real Property.
2.16. Green Fees. The term "Green Fees"shall mean the fees paid for the privilege
of playing golf at the Forest Creek Golf Course.
2.17. Gross Receipts. The term "Gross Receipts"shall mean all receipts related to
or derived from the operation of the Forest Creek Golf Course, computed on an accrual
basis,from cash or credit transactions recognized after the Commencement Date, and shall
include, but shall not be limited to, green fees, cart fees, the amount of all sales (wholesale
or retail) of food, beverages, goods, wares or merchandise on, at, or from the Property, or
for services of any nature performed on, at, or from the Property, determined in accordance
with generally accepted accounting principles applied on a consistent basis. Gross Receipts
shall be reduced by any refunds, rebates, discounts and credits of a similar nature given,
paid, or returned by Operator in the course of obtaining such Gross Receipts.
Gross Receipts shall not include:
2.17.1. Applicable gross receipts,taxes,admission,cabaret,excise,sales and
use taxes, or similar governmental charges collected as a part of the sales price of
any goods or services;
2.17.2. Income and revenues of licensees and concessionaires of Operator
from the Property or any part thereof; provided, however, (i) that all commissions,
percentages or other payments received or earned by Operator from any licensee or
concessionaire shall be included in Gross Receipts and (ii) any licenses or
concessionaires of Operator from the Property, or any portion thereof, shall be
subject to the prior approval of Owner which approval shall not be unreasonably
withheld;
2.17.3. Service charges, which are defined to mean percentage gratuities
added to billings as compensation to Operator's employees;
2.17.4. Proceeds of borrowing by Operator; or
2.17.5. Proceeds paid as a result of an insurable loss.
Golf Course Management Agreement Page 4
2.18. Gross Receipts Variable Fee. The term "Gross Receipts Variable Fee" shall
have the meaning as defined in Section 5.1.2 of this Agreement.
2.19. Improvements. The term"Improvements"shall mean the improvements of any
nature located or to be located on the Real Property (including, nut not limited to, a
clubhouse,an 18-hole golf course,and a maintenance facility),and any other improvements
constructed or to be constructed on the Real Property.
2.20. Intangible Personal Property. The term "Improvements" shall mean the
improvements of any nature located or to be located on the Real Property(including,but not
limited to, a clubhouse, an 18-hole golf course, and a maintenance facility), and any other
improvements constructed or to be constructed on the Real Property.
2.21. Intangible Personal Property. The term "Intangible Personal Property" shall
mean all intangible property or rights owned or held in connection with the Forest Creek Golf
Course or the Property, including, but not limited to, security deposits, prepaid rents, liquor
and operating licenses, and all trademarks related to the operation or use of the Forest
Creek Golf Course and/or any other Property.
2.22. Management Fees. The term"Management Fees"shall collectively mean the
Base Management Fee and the Gross Receipts Variable Fee to be paid to Operator
pursuant to the terms of Article 5 herein.
2.23. Monthly Debt Payment(s). The term "Monthly Debt Payment" shall mean a
monthly payment in accordance with Exhibit"A," said payments to be applied by the City to
the New Bonds Debt Payment(s).
2.24. Negative Net Cash Flow. The term"Negative Net Cash Flow"shall be defined
as the amount, if any, by which the sum of(i) Monthly Debt Payments, PLus (ii) the amount
to be funded to the Capital Reserve,plus(iii)Operating Expenses exceeding Gross Receipts
for the particular period in question.
2.25. New Bonds. The term"New Bonds"shall mean the City of Round Rock,Texas
Combination Tax and Revenue Certificates of Obligation, Series 1995, and any refinancing
thereof.
2.26. New Bonds Debt Payment(s). The term "New Bonds Debt Payment" shall
mean the semi-annual debt payments as set out in Exhibit"B."
2.27. Operating Expenses. The term "Operating Expenses" shall mean those
necessary or reasonable operating expenses of the Forest Creek Golf Course incurred or
paid during or after the Commencement Date hereof in connection with the normal course
of conducting and operating the business affairs of the Property and/or Forest Creek Golf
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Course, set forth in the then current Annual Operations Budget, computed on an accrual
basis, including, but not limited to, the following items:
2.27.1. Salaries, wages, employee benefits and payroll expenses, including,
but not limited to, standard pension and/or profit sharing plans, payroll taxes, profit
sharing programs and insurance of all employees employed on-site in the direct
operation of the Property, excluding, however,service charges,which are defined as
percentage gratuities and paid to employees;
2.27.2. Marketing, advertising and promotional expenses;
2.27.3. Replacement of inventories of maintenance parts and supplies, food
stores and bar supplies;
2.27.4. Replacement of broken, lost or damaged silver, chinaware,glassware,
cooking utensils and other similar items of equipment;
2.27.5. Office supplies, postage, printing, routine office expenses and
accounting services incurred in the on-site operation of the Property;
2.27.6. The costs of entertainment at the restaurant, or other portion of the
Property, including vocalists and bands;
2.27.7. Reasonable travel expenses of on-site employees incurred exclusively
in connection with the business of the Property;
2.27.8. Accrual of a reserve for insurance and property taxes each month in an
amount or at a rate that is sufficient to pay such insurance premiums or property
taxes when they become due and payable;
2.27.9. Insurance premiums, to the extent not provided for in any reserve
established therefor;
2.27.10. Accounts receivable previously included within Gross Receipts, to the
extent they remain unpaid ninety (90) days after the first billing;
2.27.11. Auditing, accounting costs,computer fees and legal fees performed by
a non-affiliate of Operator and incurred in respect of the operation of the Property,
including any financial management and accounting fees paid for services rendered
by any non-affiliate of Operator;
Golf Course Management Agreement Page 6
2.27.12. Costs incurred for utilities, including, but not limited to, all electric,gas,
and water costs and any other private utility charges incurred in connection with the
operation of the Property;
2.27.13. Ordinary maintenance and repairs,to the extent same are not paid from
the Capital Reserve, as well as the cost of any capital improvements or capital
replacements;
2.27.14. All lease payments on any item of furniture, fixtures or equipment
utilized in the operation of the Property, except as set forth below;
2.27.15. Any Negative Net Cash Flow deficit carried forward from previous Fiscal
Months;
2.27.16. All out-of-pocket expenses incurred by Operator or Operator's affiliates,
including, but not limited to, Golf Holding, Inc., in providing the services under the
terms of this Agreement;
2.27.17. Principal or interest payments on indebtedness of Operator in providing
the services under the terms of this Agreement.;
2.27.18. Rental or lease payments for items of furniture, fixtures or equipment
incurred by Operator in providing the services under the terms of this Agreement;
2.27.19. An amount to be paid to Owner equal to the Monthly Debt Payments
as they become due; and
2.27.20. All other customary and reasonable expenses incurred in the operation
of the Property.
Any of the above provisions resulting in a double deduction as an Operating Expense shall
be allowed as a deduction only once.
2.28. Operator's Personal Property. The term "Operator's Personal Property" shall
mean the property of Operator or others used in operations at the Forest Creek Golf Course.
Owner may request a listing of Operator's Personal Property not more often than once every
three (3) years.
2.29. Owner's Personal Property. The term"Owner's Personal Property"shall mean
the personal property purchased by the Forest Creek Golf Course or by Operator for which
the Operator is reimbursed shall be owned by the Owner. Owner may request that Operator
prepare a listing of Owner's Personal Property not more often than once every three (3)
years.
Golf Course Management Agreement Page 7
2.30. Personal Property. The term "Personal Property" shall mean (a) Owner's
Personal Property, (b) Operator's Personal Property, and (c) all other personal property,
machinery, fixtures, furnishings, installed or to be placed or installed on or about the Real
Property and to be used as a part of or in connection with the operation of the Forest Creek
Golf Course, including, but not limited to, (i) all equipment, fixtures, and furniture, (ii) golf
carts, (iii) restaurant equipment, (iv)golf course maintenance equipment, and (v) any other
furniture, fixtures and equipment to be utilized by the Property, as determined by Operator
to be required to operate a public golf course facility.
2.31. Positive Net Cash Flow. The term "Positive Net Cash Flow" shall mean that
amount, if any,by which Gross Receipts exceed the sum of the following for the Fiscal Month
in question: (i)the Monthly Debt Payments, plus (ii)the amount to be funded to the Capital
Reserve, plus (iii) Operating Expenses.
2.32. Prior Management Agreement. The term"Prior Management Agreement" shall
mean that one certain Management Agreement dated October 24, 1995, and all
amendments thereto, between Owner and Operator.
2.33. Prior Management Fees. The term "Prior Management Fees" shall have the
meaning as defined in Section 5.4 hereof.
2.34. Property. The term "Property" shall mean (i) the Real Property, (ii) the
Easements and Rights, (iii)the Personal Property, (iv)the Intangible Personal Property, (v)
the Improvements, and (vi)any other contract or property rights owned by Owner related to
the Real Property and the Personal Property.
2.35. Real Estate Taxes. The term "Real Estate Taxes" shall mean all taxes,
assessments, excises, levies and other charges required to be paid upon or with respect to
the Real Property and/or improvements,assessed,levied or imposed by any public authority
having jurisdiction, whether general or special.
2.36. Real Property. The term "Real Property" shall mean that certain parcel or
parcels of land described in Exhibit "C" attached hereto.
2.37. Tax Year. The term "Tax Year" shall mean each fiscal year from time to time
utilized by the taxing authorities having jurisdiction over the Real Property which occurs after
the execution date of this Agreement.
2.38. Term. The term"Term"of this Agreement shall mean a period of five(5)years
beginning on the Commencement Date, unless sooner terminated as provided herein.
Golf Course Management Agreement Page 8
ARTICLE 3.
APPOINTMENT OF OPERATOR AND
OWNERSHIP OF PERSONAL PROPERTY
3.1. Management of the Property. Owner hereby appoints, hires and employs
Operator as Owner's exclusive agent to supervise, manage, direct and operate the Forest
Creek Golf Course and the Property during the Term of this Agreement, and Operator
hereby accepts said appointment upon and subject to the terms, conditions, covenants and
provisions set forth herein. Owner hereby delegates to Operator the sole responsibility,
discretion and authority to determine operating policies and procedures, standards of
operation, house rules, standards of service and maintenance, pricing, and other policies,
rules and regulations affecting the Property or the operation thereof, to implement all such
policies and procedures, and to perform any act on behalf of Owner deemed necessary or
desirable for the operations and maintenance of the Property. The performance of all
activities shall be for the account of Operator.
3.2. Use of the Property and Nondisturbance. Owner hereby grants to Operator
the exclusive use and possession of the Property during the Term of this Agreement for the
purposes set forth herein for the purposes of managing and operating the Property. During
the Term of this Agreement, Owner agrees that it may not in any event remove or prohibit
Operator's use and possession of the Property, except due to an act which is not cured by
Operator within the applicable grace period provided herein afterwritten notice from Owner
to Operator.
3.3. Ownership of Personal Property. The Owner and Operator agree that
(i) Operator is the owner of all of Operator's Personal Property together with any and all
additions and substitutions thereof during the Term of this Agreement and (ii) Owner is the
owner of all of Owner's Personal Property together with any and all additions and
substitutions thereof during the Term of this Agreement. Owner acknowledges and agrees
that Operator owns Operator's Personal Property and that upon the termination of this
Agreement for any reason whatsoever, including, but not limited to, a Default by Operator
which is not cured within the time permitted after written notice from Owner to Operator,
Operator will be entitled to remove all Operator's Personal Property together with all
additions and substitutions thereof during the Term of this Agreement.
ARTICLE 4.
TERM
4.1. Term. The Term of this Agreement shall be for a period of five (5) years
beginning on the Commencement Date unless sooner terminated in accordance with the
provisions of this Agreement. Owner hereby reserves the option to terminate this Agreement
(the "Early Termination Option") on the date which is three (3) years following the
Commencement Date of this Agreement (the "Early Termination Date") by the delivery of
Golf Course Management Agreement Page 9
written notice by Owner to Operator of the exercise by Owner of the Early Termination
Option not less than sixty (60) days prior to the Early Termination Date.
ARTICLE 5.
CURRENT MANAGEMENT FEES, OWNER'S RECEIPTS,
PRIOR MANAGEMENT FEES AND PRIORITY OF PAYMENTS
5.1. Current Management Fees. During the period in which this Agreement is in
effect, Operator shall be paid the following (collectively referred to as the "Current
Management Fees"):
5.1.1. Base Management Fee. On the Commencement Date and on the first day of
each Fiscal Month thereafter during the Term, in advance, Operator shall earn and
be entitled to deduct from Gross Receipts a fee equal to ELEVEN THOUSAND
SEVENTY-SIX AND 07/100 DOLLARS($ 11,076.07)(the"Base Management Fee").
The Base Management Fee shall be increased, or decreased, on an annual basis on
each anniversary date of the Commencement Date by multiplying the then current
Base Management Fee by an amount equal to any increase in the Consumer Price
Index over the Consumer Price Index for the prior year.
5.1.2. Gross Receipt Variable Fee. Subject to the conditions set out below, on the
first day of each Fiscal Month, Operator shall earn and be entitled to deduct from
Gross Receipts a sum equal to the following(the"Gross Receipts Variable Fee"): two
percent(2%)of Gross Receipts for the prior Fiscal Month until such time as the Prior
Management Fees,and all interest accrued thereon,are paid in full, at which time the
Gross Receipts Variable Fee shall automatically increase to ten percent(10%)of the
Gross Receipts for the prior Fiscal Month. Notwithstanding the foregoing,the parties
agree that in no event will the Gross Receipts Variable Fee exceed the Base
Management Fee accrued in any year of the Term (a "Term Year")which begins on
the anniversary date hereof provided, however, notwithstanding anything contained
herein to the contrary, on a Term Year Basis, in the event the Gross Receipts
Variable Fee exceeds the Base Management Fee, as adjusted,for such period, then
the Gross Receipts Variable Fee that Operator shall be paid for such period shall be
an amount which is ONE AND NO/100 DOLLAR ($1.00) less than the Base
Management Fee,as adjusted,that is payable to Operator for such applicable period.
The Gross Receipts Variable Fee shall be reduced by an amount equal to the amount
that prior Monthly Debt Payments have not been fully funded by Gross Receipts, but
only to the extent that New Bonds Debt Payment(s) have not been fully funded out
of Gross Receipts.
5.2. Accrual of Unpaid Current Management Fees Notwithstanding anything
herein to the contrary, in the event that during any Fiscal Month during the Term of this
Agreement there are not sufficient Gross Receipts to pay the full amount of the Current
Golf Course Management Agreement Page 10
Management Fees after payment by Operator to Owner of an amount equal to the Monthly
Debt Payments required pursuant to Section 5.3, and Operating Expenses, the unpaid
portion of the Current Management Fees shall accrue until such time as and to the extent
that Gross Receipts are sufficient to pay such accrued Current Management Fees, at which
time Operator shall deduct same from Gross Receipts. At the termination of this Agreement,
save and except arising from a Default by Owner which is not cured within the time permitted
after written notice thereof from Operator to Owner, all Current Management Fees and
unreimbursed Operating Expenses arising during the Term of this Agreement, and interest
on Prior Management Fees, shall be paid solely from the existing, unencumbered or not
otherwise budgeted balance in the Capital Reserve account and any remaining unpaid
balance of such Current Management Fees, interest on Prior Management Fees, and
unreimbursed Operating Expenses shall not subsequently be due or payable.
5.3. Monthly Debt Payments. From and after Commencement Date and continuing
thereafter throughout the Term (including any renewals or extensions hereto), to the extent
Gross Receipts are available,Operator shall make monthly payments to Owner in an amount
equal to the Monthly Debt Payments to Owner, or Owner's designee on the dates which
occur during the Term of this Agreement in the amounts set forth on Exhibit "A," attached
hereto, with the first such Monthly Debt Payment due and payable on June 1, 2000. If
directed by the Owner in writing, Operator hereby agrees to make the payments otherwise
payable to Owner in the amount of the Monthly Debt Payments required herein directly to
the party specified by Owner in writing. Owner covenants to Operator and agrees to make
the New Bonds Debt Payments as they come due.
5.4. Payment of Prior Management Fees. Owner and Operator agree that as of the
December 31, 1999, Operator has accrued unpaid prior management fees and expenses
in connection with the Prior Management Agreement of Seven Hundred Fifty Thousand and
no/100 Dollars($750,000.00)(hereinafter collectively referred to as the"Prior Management
Fees"). The Owner and Operator agree that the then current unpaid portion of Prior
Management Fees shall bear interest at the rate of five and one-half percent (5.5%) per
annum (which is the same rate of interest as the New Bonds) until the Prior Management
Fees and all interest accrued thereon is paid in full or until the termination of this Agreement,
whichever first occurs. At the termination of this Agreement, save and except arising from
a Default by Owner which is not cured within the time permitted after written notice thereof
from Operator to Owner,all Prior Management Fees and interest on Prior Management Fees
shall not subsequently be due or payable.
5.4.1. Financial Statement and Owner and Operator's Right to Audit. Owner and
Operator agree that the parties shall have the following additional rights as set forth
below:
5.4.1.1. Operator's Right to Review and Audit. In the event of
termination of this Agreement for any reason whatsoever prior to the payment
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in full to Operator of Prior Management Fees, except for a termination of this
Agreement arising from a Default by Operator which is not cured within the
time permitted after written notice from Owner to Operator, within thirty (30)
days of the end of each calendar year ending after the termination of this
Agreement, Owner shall cause to be delivered to Operator (i) financial
statements setting forth in similar detail and form as provided to Owner during
the Term of this Agreement,the Gross Receipts, Operating Expenses and any
other expenses or costs of any nature whatsoever relating to the Property, or
any portion thereof, for the prior calendar year then ending including a
calculation of the amount that is to be paid by Owner to Operator toward the
payment of the then current unpaid principal balance of Prior Management
Fees together with all interest accrued thereon and (ii) the payment to be
made by Owner to Operator in payment of the then current unpaid principal
balance of Prior Management Fees together with all accrued interest thereon.
All such payments received by Operator shall be applied first to the accrued
and unpaid interest on Prior Management Fees, and the remaining balance
of such payments, if any, shall be applied to the payment of the unpaid
principal balance of Prior Management Fees. Operator, at Operator's sole
cost, shall be entitled to review and audit the books and records of Owner and
any other entity that may have possession of such books and records relevant
to the determination of Gross Receipts, Operating Expenses and other costs
and expenses relating to the Property or any portion thereof, at any time upon
not less than twenty-four(24)hours written notice to Owner. Such review and
audit shall take place at the offices of Owner; provided, however, Operator
shall use Operator's best efforts to minimize the disruption of Owner's
business. If Operator disputes any calculation by Owner which impacts the
amount of any payments to be paid by Owner to Operator on the unpaid
principal balance or accrued and unpaid interest on Prior Management Fees,
Operator shall provide Owner written notice of the disputed items within thirty
(30)days following the completion of Operator's review and audit. In the event
that Operator and Owner are unable to resolve any disputed items to which
Operator has provided Owner written notice within the 30-day period following
the delivery by Operator to Owner of such notice, such dispute shall be settled
by a nationally recognized accounting firm mutually acceptable to Operator
and Owner. In the event that Owner and Operator are unable to agree upon
a nationally recognized accounting firm,Owner and Operator shall each select
a nationally recognized accounting firm and the representatives of those two
(2) firms shall jointly select one (1) nationally recognized accounting firm to
settle the disputed items. Upon the conclusion of such review and audit by the
nationally recognized accounting firm,the costs of such review and audit shall
be paid by Operator unless the amount of the payment toward the payment of
the then current unpaid principal balance and accrued interest on Prior
Management Fees is increased by two percent (2%) or more as a result of
Golf Course Management Agreement Page 12
such audit over the amount of the payment specified in the applicable annual
calculation of such payment provided by Owner to Operator in accordance
with the provisions of this Agreement.
5.4.1.2. Owner's Right to Review and Audit. During the Term of
this Agreement, Owner shall have the right to request and have performed an
audit, review or a financial examination agreed upon with Operator, of the
financial records of Operator by an independent Certified Public Accountant
selected by Owner. Notwithstanding anything contained in Section 5.4.1.1 or
5.4.1.2 to the contrary, in no event will any audit which is performed at the
request of Owner, which is to be an Operating Expense, exceed the sum of
FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) provided that the
financial records of Operator are in reasonably good order, reasonably readily
available for examination and there are no unusual circumstances that would
otherwise cause the cost of such review, audit or other financial examination
to be significantly higher.
5.5. Priority of Gross Receipts and Positive Net Cash Flow. Owner and Operator
agree that the following shall be the priority of payments under this Agreement:
5.5.1. Gross Receipts received shall be applied by Operator to the payment
of the following items in priorities indicated:
5.5.1.1. First, to the payment of the then current scheduled
Monthly Debt Payment which is due, but only to the extent that the next
scheduled New Bonds Debt Payment is not fully funded (i.e., once the next
scheduled New Bonds Debt Payment is fully funded, no additional Monthly
Debt Payment is due);
5.5.1.2. Second, to any amounts remaining unpaid for prior
Monthly Debt Payments, but gnly to the extent that the next scheduled New
Bonds Debt Payment is not fully funded.
5.5.1.3. Third, to the payment of the amounts to be paid to the
Capital Reserve account, including any amounts remaining unpaid from prior
months and including the reimbursement to the account for any sums paid out
for one or more New Bonds Debt Payment(s) or portion thereof; and
5.5.1.4. Fourth, to the payment of the then current Operating
Expenses.
Golf Course Management Agreement Page 13
5.5.2. Positive Net Cash Flow shall be applied by Operator to the payment of
the following items in the priorities indicated within thirty (30) days following
the end of each Fiscal Month, or at such other time as may be set forth below:
5.5.2.1. First, to the payment of any of the Base Management
Fees which are then currently due and payable to Operator until they are paid
in full;
5.5.2.2. Second, to the payment of any portion of the Gross
Receipts Variable Fee which is then currently due and payable to Operator
until they are paid in full.
5.5.2.3. Third, to the payment of the unpaid portion of Prior
Management Fees,plus all accrued interest thereon,which payments shall be
made within forty-five(45)days following the expiration of each Fiscal Quarter
for the prior Fiscal Quarter then ended. Such payments shall be applied first
to the payment of accrued and unpaid interest on Prior Management Fees
and, at any time during which such interest is then currently paid in full, to the
unpaid principal of Prior Management Fees until the Prior Management Fees
are paid in full; and
5.5.2.4 Fourth, any Positive Net Cash Flow remaining after the
payment in full, on a then current basis, of all three (3) of the foregoing
priorities of Positive Net Cash Flow to Operator, shall be paid and distributed
to Owner within forty-five (45) days following the expiration of each Fiscal
Quarter then ended.
ARTICLE 6.
REAL ESTATE TAXES AND
PERSONAL PROPERTY TAXES
During the Term of this Agreement, Owner covenants and agrees that there shall be
no Real Estate Taxes payable or levied of any nature whatsoever. Nothing herein contained
shall require Operator to pay or be charged for any portion of(i) municipal, state or federal
income taxes assessed against Owner, (ii) municipal, state or federal capital levy, estate,
succession, inheritance or transfer taxes of Owner, or (iii) corporation franchise taxes
imposed upon Owner or any corporate owner of the fee of the Property.
Golf Course Management Agreement Page 14
ARTICLE 7.
GENERAL RESPONSIBILITIES OF OPERATOR
7.1. Operation of Forest Creek Golf Course. Operator shall operate, maintain and
manage the Forest Creek Golf Course in a manner which Operator deems in its sole
discretion to be necessary to operate a public golf club; provided, however,the Forest Creek
Golf Course shall be maintained by Operator in a good and attractive condition reasonably
comparable to other municipally owned golf courses in the central Texas area that (i) have
similar annual budgets for golf course maintenance, (ii) that charge similar greens fees to
those being charged for playing the Forest Creek Golf Course and (iii) that have similar
climatic and soil conditions to the Forest Creek Golf Course. Operator shall have the
authority and duty to exercise all prerogatives of management with respect to the Forest
Creek Golf Course, including implementing all policies and procedures established by
Operator, collecting Gross Receipts into a special trust account held in Operator's name in
trust for the benefit of Owner and paying an amount to Owner equal to the Monthly Debt
Payments required pursuant to Section 5.3 and Operating Expenses therefrom, and
performing any act necessary or desirable for the operation and management of the Forest
Creek Golf Course and the Property.
7.2. Commencement Date. From and after the Commencement Date and so long
as it has not been excluded from possession of the Property by Owner, Operator shall, as
Operating Expenses,maintain,preserve and keep the Property in good repair,working order
and condition,and shall from time to time make all repairs, replacements and improvements
necessary to keep the Property in such condition. Owner shall have no responsibility for
such maintenance or for any of these repairs, replacements or improvements. All such
additions,modifications and improvements shall thereafter comprise partof the Property and
be subject to the provisions of this Agreement. Such additions, modifications and
improvements shall not in any way damage the Property nor cause it to be used for purposes
other than those authorized under the provisions of state and federal law; and the Property,
upon completion of any additions, modifications and improvements made pursuant to this
Section, shall be of a value not less than the value of the Property immediately prior to the
making of such additions, modifications and improvements.
7.3. Annual Operations Budget. No later than each December 1St prior to the
commencement of the next Fiscal Year, Operator shall prepare, and provide to Owner, an
annual operations budget for such Fiscal Year (hereinafter referred to as the "Annual
Operations Budget")setting forth the projected Gross Receipts and Operating Expenses for
such Fiscal Year associated with the operation of the Property.
7.4. Annual Capital Budget. No later than each December 1St prior to the
commencement of each Fiscal Year, Operator shall prepare, and provide to Owner, an
annual capital replacements and repair budget for such Fiscal Year(hereinafter referred to
as the"Annual Capital Budget")setting forth the projected capital repairs and improvements
Golf Course Management Agreement Page 15
to the Property for such Fiscal Year. Owner and Operator agree that the Annual Capital
Budget for the 2000 Fiscal Year has already been prepared by Operator and provided to
Owner. The parties agree that the source for the funding of the items set forth in the Annual
Capital Budgets shall be the funds in the Capital Reserve. The accounting for the utilization
of the funds in the Capital Reserve account shall be done on an annual basis based on the
Fiscal Year of Operator. In the event during any Fiscal Year, Operator spends an amount
in excess of the funds available in the Capital Reserve account, then the amount of such
excess shall be credited toward the expenditures to be made in subsequent Fiscal Years.
In the event that during any Fiscal Year, Operator spends an amount which is less than the
funds available in the Capital Reserve account, Operator shall be entitled to spend such
unutilized funds in subsequent Fiscal Years with Owner's approval,which approval shall not
be unreasonably withheld.
7.5. Accounting Records and Reporting Operator agrees from and after the
Commencement Date and during the Term of this Agreement,at Operator's cost,to maintain
efficient and accurate accounting records in a format consistent with other public golf
courses operated by Operator or its affiliates as follows:
7.5.1. From and after the Commencement Date, and during the Term of this
Agreement, Operator shall submit to Owner on or before the twentieth day following
the previous Fiscal Month, a Financial Statement showing in detail all of the Gross
Receipts, Operating Expenses and a statement of financial position (a balance
sheet), of Operator for the preceding Fiscal Month and the Fiscal Year to date.
7.5.2. From and after the Commencement Date, and within sixty (60) days
after the close of each Fiscal Year, Operator shall submit to Owner a financial
statement showing all Gross Receipts,Operating Expenses and statement of position
(a balance sheet)for the Fiscal Year then ended. The Financial Statement shall be
certified by a Certified Public Accountant selected by Operator and shall include a
statement that the financial statements were compiled in compliance with the terms
and conditions of this Agreement and in accordance with generally accepted
accounting principles.
7.6. Status Reports and Meetings Operator agrees to have a representative of
Operator present at the meetings of the Golf Course Advisory Board of the Owner provided
that Operator has sufficient prior notice of the date, time, and location of such meetings.
Additionally, a representative of Operator and a representative of Owner shall hold quarterly
meetings for the purpose of having the representative of the Operator update the Owner on
the general operations of the Property and review the financial performance of the Property.
On or before December 15th of each year, Operator shall provide Owner with an annual
status report setting forth the general condition of the Property and a general outline of all
planned improvements and needed changes for the forthcoming operating year.
Golf Course Management Agreement Page 16
7.7. Emergency Expenditures In the event that a condition should exist in, on, or
about the Property, or any portion thereof, of an emergency nature, including structural
repairs, which requires immediate repairs to preserve and/or protect the Property, and
assure its continued operation or to protect the members of employees. Operator is
authorized to take all steps and to make all expenditures necessary to repair and correct any
such conditions whether or not provisions have been made in the applicable budget or
budgets for any such emergency expenditures and the applicable budget or budgets shall
be automatically increased to include the full amount of such expenditures as if such
amounts were originally set forth in the applicable budgets. Operator agrees to deliver
written notice to the Owner within three(3)Business Days of any such emergency specifying
the exact nature of the emergency and the expenditures which Operator has made or may
be additionally planning on making in order to address the repairs or other measures
required to be done in connection with the applicable emergency. The term"Business Days"
shall mean all days during which there is regular delivery of the U.S. Mail, excluding
Saturdays.
7.8. Expenditures Required for Compliance with Law. In the event that at any time
during the Term of this Agreement repairs, additions, changes, or corrections in or to the
Property shall be required by reason of any laws, ordinances, rules, or regulations, now or
hereafter in force,or by order of any governmental or municipal power,department,agency,
authority, or officer, such repairs shall be made at the direction of Operator; provided,
however, in the event that any such expenditures were not included within the applicable
budget or budgets, the applicable budget or budgets shall be automatically increased to
include the full amount of such expenditures as if such amounts were originally set forth in
the applicable budgets.
ARTICLE 8.
POSSESSION OF THE PROPERTY
On the Commencement Date, Owner shall deliver possession of the Property to
Operator.
ARTICLE 9.
UTILITIES AND SERVICES
Operator agrees to pay all charges for utilities and services used by it on the Property,
which shall be separately metered, including, but no limited to, gas, electricity, telephone,
sanitary sewer,domestic water,fire protection,water, and trash collection. Notwithstanding
the foregoing, Owner and Operator agree that during the Term of this Agreement, Operator
shall have the option of utilizing water wells on the Real Property for the irrigation of the Real
Property at no cost except for the actual operation and maintenance cost associated with the
well and the production of the water. When it becomes available, Owner shall have the
option of replacing well water with effluent from the wastewater treatment plant. The cost
Golf Course Management Agreement Page 17
of the effluent will also be the actual operation and maintenance cost of transporting it from
the treatment plant to the Real Property.
ARTICLE 10.
OWNER'S COVENANTS AND REPRESENTATIONS
10.1. Owner's Covenants. Owner makes the following representations to Operator,
which representations shall, unless otherwise stated herein, survive the execution and
delivery of this Agreement and the Commencement Date:
10.1.1. Status. Owner is a duly formed and validly existing home rule
city of the State of Texas, governed by the Constitution and the laws of the State of
Texas.
10.1.2. Authorization. The Constitution and the laws of the State of
Texas authorize Owner to enter into this Agreement and the transactions
contemplated hereby and thereby; and to carry out its obligations under this
Agreement. The officers of Owner executing this Agreement have been duly
authorized to execute and deliver this Agreement under the terms and provisions of
a resolution or resolutions of Owner's governing body or by other appropriate official
action.
10.1.3. Compliance. Owner has complied with all open meetings and
public bidding laws and all other State laws applicable to this Agreement and the
acquisition of the Property by Owner.
10.1.4. Governmental Agencies As of the execution date hereof,Owner
has no knowledge of any existing conditions in or about the Property or otherwise
which violate any city, county, state or federal law,ordinance or regulation, including,
but not limited to, regulations relating to zoning and use of the Property, and Owner
has not received any notice, written or otherwise, from any governmental agency
requiring the correction of any condition with respect to the Property which might be
in violation of any law, ordinance or regulations.
10.1.5. Title to the Real Property Existing Encumbrances Owner has
good and indefeasible title to the Real Property, free and clear of all liens, claims and
encumbrances of any nature, except those specific items set forth on Exhibit"D" (the
"Existing Real Property Conditions").
10.1.6. Access. There is no fact or condition which would result in the
termination of the current access to the Real Property from existing roads or to sewer
and other utility services,and Owner represents that on the Commencement Date the
Real Property will enjoy access and service for sewers and all utilities (including, but
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not limited to, water, sewer, electricity and telephone facilities) available to the Real
Property in sufficient quantities necessary to service the Property for use as a public
golf course facility.
10.1.7. Zoning, The Real Property is properly zoned for use as a public
golf course facility, including, but not limited to, the sale of alcoholic beverages.
10.1.8. Assessments. As of the execution date hereof, Owner has
received no notice and has no knowledge of any pending improvements, liens or
special assessments to be made against the Property by any governmental authority.
10.1.9. Violation of Representations From and after the execution date
hereof and until the termination of this Agreement, Owner shall not take any action
or omit to take any action which would have the effect of violating any of the
representations of Owner contained in this Agreement.
10.1.10. Violation of Agreement Neither the execution and delivery of
this Agreement by Owner nor Owner's performance of its obligations hereunder will
result in a violation or breach of any term or provision or constitute a Default or
accelerate the performance required under any other agreement or document to
which Owner is a party, or is otherwise bound, or to which the Property, or any part
thereof, is subject, and will not constitute a violation of any law, ruling, regulation or
order to which Owner is subject.
10.1.11. Documentation. If necessary to carry out the intent of this
Agreement and as allowable by law, Owner agrees to execute and provide to
Operator, on or after the execution date hereof, any and all other instruments,
documents, conveyances, assignments and agreements which Operator may
reasonably request in connection with the operation of the Property.
10.1.12. Noninterference. If Operator shall keep and perform its
covenants, conditions and obligations hereunder, owner covenants and agrees that
Owner will not,other than as permitted by this Agreement or required by law, interfere
in any manner with Operator's operation, possession and management of the
Property.
10.1.13. Litigation. Claims or Proceedings There are no existing or
pending actions, suits, litigation, claims, proceedings or governmental investigations
with respect to any aspect of any of the Property or the Forest Creek Golf Course,
nor, to the knowledge of Owner, have any such actions, suits, litigation, claims,
proceedings or governmental investigations been threatened or asserted. In the
event that a lien, claim or cause of action affecting the Property or the Forest Creek
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Golf Course should arise resulting from any activities by Owner prior to the
Commencement Date, Owner shall advise Operator in writing.
10.1.14. Construction Claims. Owner shall hold Operator harmless, to
the extent permitted by law, from any unpaid bills or claims in connection with the
construction of any improvements to the Property.
10.1.15. Improvements. The Improvements have been constructed and
installed in compliance with (i) all applicable laws, statutes, ordinances, codes,
covenants, conditions, and regulations, (ii)restrictions of any kind or nature affecting
the Real Property, and (iii) any occupancy classification applicable to the Forest
Creek Golf Course's operation.
10.1.16. Permits. All permits and licenses necessary for the operation
and occupancy of the Property, including, but not limited to, all building and use
permits, have been obtained for all operations of the Forest Creek Golf Course, and
no notice to revoke, suspend, or terminate same has been received by Owner.
Owner shall cooperate fullywith Operator as necessaryto enable Operator to procure
and/or transfer and maintain all licenses, permits or authorizations necessary for the
operation of the Property.
10.1.17. Liens. From and after the execution date hereof and until the
Commencement Date or earlier termination of this Agreement, Owner shall not sell,
assign or create any right, title, or interest whatsoever in or to the Property, or create
or permit to exist any lien, encumbrance or charge thereon, without promptly
discharging the same.
10.1.18. Contracts. There are no outstanding contracts, commitments,
leases, or agreements of any nature to which the Forest Creek Golf Course,
Operator, or the Property is or may become subject. Owner further agrees not to
enter into any contracts, commitments, leases, or agreements after the execution
date hereof to which the Forest Creek Golf Course, Operator,or the Property may be
or become subject to without the prior express written approval of Operator.
10.1.19. Owner's Violation. In the event of a violation of any of the
representations made in this Article by Owner occurring subsequent to the execution
date hereof, Owner shall promptly cure any condition created by such violation. In
the event Owner fails to promptly cure said violation, Operator may take whatever
action, at law or in equity, available to Operator as a result of said Default, including,
but not limited to, the right to (i)terminate this Agreement, or(ii)bring suit for specific
performance and/or damages sustained by Operator as a result of Owner's Default.
No remedy herein conferred upon or reserved to Operator is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall be
Golf Course Management Agreement Page 20
cumulative and shall be in addition to every other remedy given under this Agreement
or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any breach by Owner shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed
expedient.
ARTICLE 11.
OPERATOR'S COVENANTS AND REPRESENTATIONS
11.1. Operator's Covenants. Operator makes the following representations to
Owner, which representations shall, unless otherwise stated herein, survive the execution
and delivery of this Agreement:
11.1.1. Corporate Status. Operator is a corporation duly organized,
validly existing, and in good standing under the laws of Texas, with full corporate
power to enter into this Agreement and execute all documents required hereunder.
11.1.2. Authorization. The making, execution, delivery, and
performance of this Agreement by Operator has been duly authorized and approved
by all requisite action of the Board of Directors of Operator, and this Agreement has
been duly executed and delivered by Operator and constitutes a valid and binding
obligation of Operator, enforceable in accordance with its terms.
11.1.3. Violation of Agreement Neither the execution and delivery of
this Agreement by Operator nor Operator's performance of its obligations hereunder
will result in a violation or breach of any term of provision or constitute a Default or
accelerate the performance required under any other agreement or document to
which Operator is a party or is otherwise bound or to which the Property or any part
thereof is subject, and will not constitute a violation of any law, ruling, regulation or
order to which Operator is subject.
11.1.4. Documentation. If necessary to carry out the intent of this
Agreement, Operator agrees to execute and provide to Owner, on or after the
execution date hereof, any and all other instruments, documents, conveyances,
assignments and agreements which Owner may reasonably request in connection
with the operation of the Property, including, but not limited to, an assignment of
Operator's contractual rights to all leased equipment and any licenses or permits.
Golf Course Management Agreement Page 21
ARTICLE 12.
INDEMNITY AND INSURANCE
12.1. Operator's Indemnification Operator covenants to defend and save Owner
and its officers and employees, while acting within the scope of their duties, harmless and
indemnified from and against any and all actions,suits,proceedings,claims,demands,costs
(including attorneys' fees and court costs), expenses and liability of any kind or nature
whatsoever,for injury to or death of person or damage of property including property owned
by Owner), which may be brought, made, filed against, imposed upon or sustained by
Owner, its officers or employees, based upon or arising out of an act or omission of
Operator, its officers, agents, or employees. This indemnity shall not include claims based
upon or arising out of the willful misconduct of Owner, its officers or employees. Further,this
indemnity shall not require payment of a claim by Owner or its officers or employees as a
condition precedent to Owner's recovery under this provision.
12.2. Owner's Indemnification. Owner covenants and agrees,to the extent permitted
by law,to indemnify and save Operator, Operator's affiliates,Operator's shareholder,parent
corporation, and all its respective officers, directors, legal representatives, and employees
(hereinafter referred to as the "Indemnified Parties") harmless from any and all costs,
expenses, penalties, claims, demands, and liabilities resulting from (i) any action or claim,
or otherwise,arising with respect to Owner's operation or ownership of the Forest Creek Golf
Course or the Property, or the construction or acquisition of the Improvements, and (ii) any
negligent act or omission of Owner or of its invitees, agents or employees, but this indemnity
shall not extend to costs, expenses, penalties,claims,demands and liabilities resulting from
acts of willful misconduct of Operator, its employees or agents. Further,this indemnity shall
not require the payment of a claim by any of the Indemnified Parties as a condition to
recovery under this provision.
12.3. Operator's Insurance. Operator shall obtain, as Operating Expenses, the
following insurance concerning the Property and cause all contractors to maintain similar
insurance, where appropriate:
12.3.1. Worker's compensation and employer's liability insurance as
may be required under applicable laws covering all employees of Operator included
in the operation of the Forest Creek Golf Course, with such deductible limits as are
generally established by Operator;
12.3.2. Comprehensive general public liability insurance against claims
for bodily injury, death or property damage occurring on, in, or about the Property,
and automobile insurance on vehicles operated in conjunction with the Property,with
a combined single limit of not less than TWO MILLION AND NO/100 DOLLARS
($2,000,000.00) each occurrence for personal injury, death, and property damage,
with such deductible limits as are generally established by Operator;
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12.3.3. Insurance on the Property, including the Improvements and
Personal Property, against loss or damage by fire, lightning, flood, earthquake, and
all other risks covered by the usual standard extended coverage endorsements, in
such amounts and with such deductible limits as established by Operator and agreed
to by Owner, all in an amount of not less than ninety percent (90%) of the
replacement cost thereof; and
12.3.4. Such other insurance in amounts as Operator, in its reasonable
judgment,deems advisable for protection against claims,liabilities and losses arising
out of, or connected with, the operation of the Property.
12.3.5. All insurance provided by Operator under this Article shall name
Operator and Owner as named insureds. Operator shall deliver to Owner, at least
thirty (30) days prior to the Commencement Date, certificates of insurance with
respect to all policies so procured, including existing,additional,and renewal policies,
and in the case of insurance about to expire, shall deliver certificates of insurance
with respect to the renewal policies not less than ten (10)days prior to the respective
dates of expiration. All policies of insurance provided for under this Article 12 shall,
to the extent obtainable, have attached thereto an endorsement that such policy shall
not be canceled or materially changed without at least thirty (30) days prior written
notice to Owner and Operator.
12.4. Subrogation. Anything in this Agreement to the contrary notwithstanding,
Owner and Operator each hereby waive any and all rights of recovery, claims, actions or
causes of action against the other, its agents, officers, and employees for any loss or
damage that may occur to the Property,any personal property therein,or any improvements
made thereto, or any part thereof, or any other real or personal property of either party by
reason of fire, the elements, or any other cause which is insured against under the term of
the policies of casualty insurance that Operator or Owner are required to provide hereunder
or may otherwise carry,to the extent and only to the extent of any proceeds actually received
by Owner or Operator, respectively, with respect thereto, regardless of cause or origin,
including negligence of either party hereto, its agents,officers,or employees,and each party
covenants that no insurer shall hold any right of subrogation against the other.
ARTICLE 13.
DESTRUCTION BY FIRE OR OTHER CASUALTY
13.1. Total Destruction. In the event that the Improvements are totally destroyed by
fire or other casualty to the extent that the damage cannot be materially restored with due
diligence within two hundred forty (240) days from the date construction commences,
Operator may, at its option, terminate this Agreement by giving written notice to the other
party within sixty(60)days following such damage or destruction. In the event of termination
of this Agreement pursuant to this Section, this Agreement shall cease and come to an end
Golf Course Management Agreement Page 23
as of the date of such damage or destruction as though such date were the date originally
fixed for the expiration of the Term of this Agreement.
13.2. Partial Destruction. In the event the Improvements are damaged by fire or
other casualty and such damage can be materially restored with due diligence within two
hundred forty(240)days following the date construction commences, Owner shall have the
obligation to repair the Improvements, as the case may be, as nearly as practicable to the
condition same was in prior to such damage, but in no event shall Owner be required to
expend funds in excess of proceeds of insurance received relating to the damage. Owner
shall cause such repair to be commenced with all reasonable dispatch so as to complete the
same at the earliest, reasonable, possible date.
ARTICLE 14.
CONDEMNATION
14.1. Notice of Taking. Owner shall,within ten (10)days of Owner's receipt of notice
of a proposed and/or actual taking of the Real Property, or a portion of either, under any
governmental law, ordinance or regulation, or by right of eminent domain, provide Operator
(i)written notice of such proposed or actual taking, and (ii) a copy of the documents and/or
pleadings received from the governmental authorities.
14.2. Effect of Entire Taking. If, during the Term of this Agreement, the entire Real
Property shall be appropriated or taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or under the power of eminent domain by any
public or quasi-public authority, then this Agreement and the Term hereof shall cease and
come to an end as though such date were the date originally fixed for the expiration of the
Term of this Agreement.
14.3. Effect of Partial Taking. If, during the Term of this Agreement, a portion of the
Real Property shall be appropriated or taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or under the power of eminent domain by any
public or quasi-public authority so as to render the Property substantially unusable for the
purposes and in the manner contemplated herein, then, in such event, Operator shall have
the right to cancel and terminate this Agreement by giving written notice to Ownerwithin sixty
(60) days after the receipt by Operator from Owner of written notice of such appropriation
or taking. In the event of termination of this Agreement pursuant to this Section, then this
Agreement shall cease and come to an end as of the date of such written notice by Operator
as though such date were the date originally fixed for the expiration of the Term of this
Agreement, and neither party shall have any obligation to the other arising out of or in any
way connected with this Agreement by virtue of such termination subject to the provisions
of Section 14.5 hereof.
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14.3.1. In the event less than the whole of the Real Property are so
appropriated or taken and Operator does not elect to terminate this Agreement and
Operator remains in that portion of the Real Property which shall not have been
appropriated or taken, then, in such event, the rental payable hereunder to Owner
shall abate until Owner has restored (and Owner hereby agrees, at Owner's cost and
expense, to restore) the Property as far as possible to a complete unit of the like
quality and character as existed prior to such appropriation or taking.
14.4. Operator's Award If this Agreement is terminated pursuant to the provisions
of this Article, then the damage award to be made pursuant to the condemnation
proceedings shall be apportioned between Owner and Operator according to the value of
their respective interests in the Property and this Agreement.
ARTICLE 15.
RIGHT TO CURE
15.1. Owner's Performance. After the expiration of any permitted grace period
recited in this Agreement, if Operator shall have failed to cure any Default in the performance
of any covenant or promise on its part to be performed, Owner may, immediately, or at any
time thereafter,without further notice, perform the same for the account and at the expense
of Operator. Notwithstanding the above, in the case of an emergency (being defined as a
situation involving the immediate threat of a loss of property or injury), Owner may, after
notice to Operator, so perform in Operator's stead prior to the expiration of any applicable
grace period; provided, however, Operator shall not be deemed in default under this
Agreement.
15.2. Operator's Performance. After the expiration of any permitted grace period,
if Owner shall have failed to cure any Default in the performance of any covenant or promise
on its part to be performed, Operator may, immediately, or at any time thereafter, without
further notice, perform the same for the account and at the expense of Owner.
Notwithstanding the above, in the case of an emergency, Operator may, after notice to
Owner, so perform in Owner's stead prior to the expiration of any applicable grace period,'
provided, however, Owner shall not be deemed in default under this Agreement.
15.3. Reimbursement. If, pursuant to this Article, Owner or Operator at any time is
compelled or elects to (i) pay any sum of money, (ii) do any act which will require the
payment of any sum of money, or (iii) incur any expense (including reasonable attorneys'
fees) in instituting, prosecuting and/or defending any action or proceeding instituted by
reason of Operator's or Owner's failure to reimburse, as herein provided, the sum or sums
so paid or payable by Owner or Operator, as the case may be, with all interest, costs and
damages, shall be immediately due from the other upon receipt of a statement therefor.
Golf Course Management Agreement Page 25
ARTICLE 16.
QUIET ENJOYMENT
16.1. Quiet Enjoyment. Owner, for itself, its successors and assigns, agrees that
upon the due performance and observance by Operator of the terms, covenants and
conditions contained herein, Operator shall, and may, at all times during the Term of this
Agreement, peaceably and quietly have, hold, and enjoy the Property. Within ten (10)days
of the date of the execution of this Agreement, Owner shall obtain for Operator from any
present mortgagee or mortgagees of the Property a nondisturbance agreement (the
"Nondisturbance Agreement") assuring Operator that in the event of a default and/or
foreclosure under such mortgage, Operator's possession and enjoyment of all of its rights
under this Agreement shall continue unimpaired. The executed Nondisturbance Agreement
shall be delivered by Owner to Operator and shall be recorded of record in the real property
records of Williamson County, Texas.
16.2. Inspection and Maintenance of Property. Operator agrees that Owner shall
have the right at all reasonable times to enter upon and to examine and inspect the Property.
Operator further agrees that Owner and any representative of Owner shall have such rights
of access to the Property as may be reasonably necessary to cause the proper maintenance
of the Property in the event of a Default herewith, or to carry out Owner's obligations and
exercise Owner's rights under Article 18, or to determine whether Operator is in compliance
with this Agreement.
ARTICLE 17.
SALE AND ASSIGNMENT
17.1. Operator's Sale or Assignment. Operator shall not assign, sublet or permit an
assignment by operation of law of this Agreement or any interest hereunder without the prior
written approval of Owner, which approval shall not be unreasonably withheld by Owner.
If this Agreement is assigned,Owner may collect payments from such assignee or sublessee
and shall apply the net amount collected to the rental for which Operator is obligated to pay,
but no such collection shall be deemed a waiver of Owner's prior approval or the acceptance
of such assignee hereunder.
17.2. Effect of Assignment. Any person who shall by operation of law or otherwise
become an assignee of this Agreement or become vested with the leasehold interest
hereunder, or a portion thereof, shall be bound by and liable upon all covenants and
provisions contained in this Agreement, but neither Operator nor any subsequent tenant
whose interest is assigned or divested shall be relieved of liability hereunder. In the case
of any transfer or vesting of the interest hereunder, or any part thereof, either through
foreclosure proceedings or otherwise by operation of law, it shall be a condition to the validity
of such transfer or vesting of interest that, if so requested by Owner, any person or persons
claiming the leasehold interest hereunder, or any part thereof, so derived shall promptly
Golf Course Management Agreement Page 26
execute and deliver to Owner a written assumption of the obligations of Operator hereunder,
in such form so that such person or persons shall thereupon be bound by and liable upon
all the covenants and provisions of this Agreement to the same extent as was Operator.
17.3. Owner's Sale. Lease or Assignment. In the event of the sale or assignment
of Owner's interest in this Agreement to another party, as a condition precedent to such sale
or assignment, the assign thereof ("Owner's Successor") must execute an assumption
agreement providing for the assignment by Owner's Successor of all of the obligations and
liabilities of Owner under this Agreement. Additionally, in the event of the sale or lease of
the Property, the Forest Creek Golf Course or any portion thereof or in the event of the
assignment by the City of this Agreement by Owner, as a condition precedent to either of the
foregoing, the City must pay in full to Operator the then current unpaid principal balance of
Operator's investment plus all accrued interest thereon.
ARTICLE 18.
EVENTS OF DEFAULT
18.1. Operator's Default. The occurrence of any of the following events which is not
cured in the time permitted herein shall constitute a default underthis Agreement(hereinafter
referred to as a "Default"):
18.1.1. If Operator fails to pay any sums payable under this Agreement
when and as the same shall become due and payable, and said failure shall
continue for a period of twenty (20) days after written notice (specifying the
item not paid) thereof from Owner to Operator to cure any payment failure.
18.1.2. If Operator shall fail in the performance of or compliance with
any of the covenants, agreements, terms or conditions contained in this
Agreement, other than that referred to in the immediately preceding
Paragraph, and such failure shall continue for a period of thirty(30)days after
written notice thereof from Owner to Operator specifying in detail the nature
of such failure, or, in the case such failure cannot be cured with due diligence
within thirty (30) days. Operator fails to proceed promptly and with all due
diligence to cure the same and thereafter to prosecute the curing of such
failure with all due diligence(it being intended that in connection with a failure
not susceptible of being cured with due diligence within thirty [30] days, that
the time within which to cure the same shall be extended for such period as
may be reasonably necessary to complete the same with all due diligence).
18.1.3. If the Forest Creek Golf Course shall fail to generate Gross
Receipts, during any twelve (12) month period beginning on June 1St of each
calendar year and ending on May 31 st of the subsequent calendar year during
the Term of this Agreement, of at lease FIVE HUNDRED THOUSAND AND
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NO/100 DOLLARS ($500,000.00), it shall be considered as a Default of
Operator. The parties hereto acknowledge and agree that said failure shall
not be considered as a Default if any Unavoidable Delay, as defined in Article
21 hereof, caused or significantly contributed to such failure.
18.2. Owner's Default. The occurrence of any of the following events which is not
cured in the time permitted herein shall constitute a default under this Agreement(hereinafter
referred to as a "Default"):
18.2.1. If Owner shall fail to pay any sums payable to Operator under this
Agreement when and as the same shall become due and payable and such failure
shall continue for a period of twenty (20) days after written notice thereof from
Operator to Owner.
18.2.2. If Owner shall fail in the performance of or compliance with any of the
covenants, agreements, terms or conditions contained in this Agreement and such
failure shall continue for a period of thirty (30) days after written notice thereof from
Operator to Owner specifying in detail the nature of such failure, or, in the case such
failure cannot, with due diligence, be cured within thirty (30) days, Owner fails to
proceed promptly and with all due diligence to cure the same and thereafter
prosecute the curing of such failure with all due diligence, it being intended that in
connection with a failure not susceptible to being cured with due diligence within thirty
(30) days, that the time within which to cure the same shall be extended for such
period as may be necessary to complete the same with all due diligence.
ARTICLE 19.
REMEDIES
19.1. Owner's Remedies. Upon the occurrence of a Default by Operator which is
not cured within the time permitted, Owner shall be entitled to proceed with the following
remedies as set forth below:
19.1.1. Right to Remedy Defaults of Operator. Owner may remedy any Default
of Operator, and in connection with such remedy, Owner may pay all expenses and
employ counsel, and all sums so expended or obligations incurred by Owner in
connection therewith shall be paid by Operator to Owner, upon demand by Owner,
and on failure of such reimbursement,Owner may at Owner's option,deduct all costs
and expenses incurred in connection with remedying a Default of Operator from the
next sums subsequently becoming due to Operator from Owner under the terms of
this Agreement.
19.1.2. Right to Terminate Agreement Owner may terminate this Agreement
by Owner's written notice of termination to Operator. Upon receipt of Owner's notice
Golf Course Management Agreement Page 28
of termination of this Agreement, Operator shall surrender possession of the Real
Property, Owner's Personal Property and the Improvements to Owner and assist in
an orderly transfer of the operation to another management entity or Owner;provided,
however, in the event of the termination of this Agreement arising from a Default by
Operator which is not cured within the time permitted, the parties stipulate and agree
that in the event of such termination of this Agreement, the unpaid or unreimbursed
portion of any amounts owed to Operator including, but not limited to, any Prior
Management Fees, Current Management Fees, and interest thereon, shall be
deemed to be paid in full not as a penalty but as liquidated damages for the Default
by Operator as Owner's sole and exclusive remedy hereunder.
19.1.3. Remedies Not Exclusive with Specific Exceptions Save and except for
(i) the remedy of having the unpaid portion of the Prior Management Fees and any
reimbursed amounts owed to Operator, being deemed to have been paid in full in the
event of a Default by Operator which is not cured and the termination of this
Agreement arising from such Default as provided in Section 19.1.2 hereof,and(ii)the
exercise by Owner of the Option To Terminate in accordance with the provisions of
Section 19.1.4 hereof, no remedy granted to Owner is intended to be exclusive of any
other remedy herein or by law provided, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law,
in equity or by statute. No delay or omission of Owner to exercise any right or power
accruing upon any Default shall impair Owner's exercise of any right or power or shall
be construed to be a waiver of any Default or acquiescence therein.
19.2. Operator's Remedies. Upon the occurrence of a Default which is not
cured by Owner within the time permitted, Operator shall be entitled to proceed with any or
all of the following remedies:
19.2.1. Right to Remedy Defaults of Owner Operator may remedy any Default
of Owner, and in connection with such remedy, Operator may pay all expenses and
employ counsel, and al sums so expended or obligations incurred by Operator in
connection therewith shall be paid by Owner to Operator, upon demand by Operator,
and on failure of such reimbursement, Operator may, at Operator's option,deduct all
costs and expenses incurred in connection with remedying a Default of Owner from
the next sums subsequently becoming due to Owner from Operator under the terms
of this Agreement.
19.2.2. Right to Terminate Agreement Operator may terminate this Agreement
by Operator's written notice of termination to Owner.
No remedy granted to operator is intended to be exclusive of any other remedy herein
or by law provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law, in equity or by statute. No delay
Golf Course Management Agreement Page 29
or omission of Operator to exercise any right or power accruing upon any Default shall impair
Operator's exercise of any right or power or shall be construed to be a waiver of any Default
or acquiescence therein.
19.3. Attorneys' Fees. In the event Operator or Owner should Default under any of
the provisions of this Agreement and the nondefaulting party should employ attorneys or
incur other expenses for the enforcement of performance or observance of any obligation
or agreement on the part of the defaulting party, the defaulting party shall, on demand
therefor,pay to the nondefaulting party the reasonable fees of such attorneys and such other
expenses reasonably incurred.
ARTICLE 20.
TERMINATION
20.1. Termination. The Term of this Agreement shall terminate on the occurrence
of any of the events set forth in Paragraphs 20.1.1 through 20.1.4 below:
20.1.1. A Default by Operator which is not cured within the time permitted and
Owner sends to Operator a written notice of termination for cause;
20.1.2. A Default by Owner which is not cured within the time permitted and
Operator sends to Owner a written notice of termination for cause;
20.1.3. The expiration of the Term of this Agreement; and
20.1.4. In the event that Owner delivers written notice of the exercise by Owner
of the Early Termination Option in accordance with the provisions of Section 4.1
hereof.
ARTICLE 21.
UNAVOIDABLE DELAYS
The provisions of this Article shall be applicable if there shall occur during the Term
of this Agreement or prior to the Commencement Date any of the following (hereinafter
collectively referred to as"Unavoidable Delays"): (i)acts of God,governmental restrictions,
regulations or controls, enemy or hostile governmental action, civil commotion,fire, or other
casualty; or (ii) other conditions similar to those enumerated in this Article beyond the
reasonable control of the party obligated to perform. As the result of any of the above
described events, if Owner or Operator shall fail punctually to perform any obligation on its
part to be performed under this Agreement,then, upon written notice to the other,within ten
(10)days of such event,such failure shall be excused and not be a breach of this Agreement
by the party claiming an unavoidable delay, but only to the extent occasioned by such event.
If any right or option of either party to take any action under or with respect to the Term of
Golf Course Management Agreement Page 30
this Agreement is conditioned upon the same being exercised within any prescribed period
of time or at or before a named date, then such prescribed period of time or such named
date shall be deemed to be extended or delayed, as the case may be, upon written notice,
as provided above,for a time equal to the period of the unavoidable delay. Notwithstanding
anything contained herein to the contrary,the provisions of this Article shall not be applicable
to Operator's or Owner's obligation to pay any sums, monies, costs, charges or expenses
required to be paid pursuant to the terms of this Agreement.
ARTICLE 22.
OPERATOR'S OBLIGATIONS
22.1. Independent Corporation Owner recognizes and acknowledges that Operator
is an independent corporation, chartered under the laws of the State of Texas, and is solely
responsible for the obligations and liabilities recited herein, arising hereunder, or in any
manner related to the transactions contemplated hereby,and Ownerfurther recognizes and
acknowledges that no other entity or entities, including(i)the parent corporation of Operator,
Golf Holding, Inc., (ii)any officer,employee or individual,or(iii)any corporation affiliated with
Operator, is in any manner liable or responsible for the obligations and liabilities of Operator,
whether recited herein, arising hereunder, or in any manner related to the transactions
contemplated hereby.
22.2. Entire Agreement. This Agreement embodies the entire agreement and
understanding of Owner and Operator relating to the subject matter hereof and supersedes
all prior representations, agreements and understandings, oral or written, relating to such
subject matter. Neither this Agreement nor any provision hereof maybe amended,enlarged,
modified, waived, discharged or terminated orally, but only as expressly provided herein or
by an instrument signed by Owner and Operator.
ARTICLE 23.
NOTICES
Any notices or other communications required or permitted hereunder shall be sufficiently
given if in writing and (i)delivered personally, (ii)forwarded by prepaid telegram, or(iii)sent
by certified mail, return receipt requested, postage prepaid, addressed as shown below, or
to such other address as the party concerned may substitute by written notice to the other.
All notices personally delivered shall be deemed received on the date of delivery. All notices
forwarded by prepaid telegram shall be deemed received two (2) days after the date same
are sent. All notices forwarded by mail shall be deemed received on a date seven (7)days
(excluding Sundays and holidays) immediately following date of deposit in the U.S. mail;
provided, however, the return receipt indicating the date upon which all notices were
received shall be rima facie evidence that such notices were received on the date on the
return receipt.
Golf Course Management Agreement Page 31
If to Owner: CITY OF ROUND ROCK, TEXAS
221 East Main
Round Rock, Texas 78664
Attention: City Manager
With a copy to:
Stephan L. Sheets
309 East Main
Round Rock, Texas 78664
If to Operator: CCA SILBAND/GOLFCORP/ROUND ROCK, INC.
3030 LBJ Freeway, Suite 700
Dallas, Texas 75234
Attention: General Counsel
With a copy to:
CCA Silband/GolfCorp/Round Rock, Inc.
d/b/a Forest Creek Golf Club
99 Twin Ridge Parkway
Round Rock, Texas 78664-9603
Attention: General Manager
The addresses and addressees may be changed by giving notice of such change in
the manner provided herein for giving notice. Unless and until such written notice is
received, the last address and addressee given shall be deemed to continue in effect for all
purposes. No notice to either Owner or Operator shall be deemed given or received unless
the entity noted "With a copy to" is simultaneously delivered notice in the same manner as
any notice given to either Owner or Operator.
ARTICLE 24.
GENERAL PROVISIONS
24.1. No Broker. Owner and Operator each warrant that no real estate broker or
person acting as such was consulted or dealt with by them in connection with or had any part
in interesting them to enter into this Agreement. Each party shall hold the other harmless
from any liability or expense incurred by the other party because of any claim for
commission, fees or other compensation made by any real estate broker or other person
based on claims contrary to this warranty.
24.2. Counterparts. This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
Golf Course Management Agreement Page 32
24.3. Successors and Assigns. This Agreement and the terms and provisions hereof
shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and assigns whenever the context so requires or permits.
24.4. Time. Time is of the essence in this Agreement and each and all of its
provisions. Any extension of time granted for the performance of any duty or obligation
under this Agreement shall not be considered an extension of time for the performance of
any other duty or obligation under this Agreement.
24.5. Severability. Except as expressly provided to the contrary herein, each
section, part, term, or provision of this Agreement shall be considered severable, and if for
any reason any section, part, term, or provision herein is determined to be invalid and
contrary to or in conflict with any existing or future law or regulation by a court or agency
having valid jurisdiction, such determination shall not impair the operation of or have any
other effect on other sections, parts, terms, or provisions of this Agreement as may remain
otherwise intelligible, and the latter shall continue to be given full force and effect and bind
the parties hereto, and said invalid sections, parts,terms, or provisions shall be deemed not
to be a part of this Agreement.
24.6. Applicable Law. This Agreement has been executed and delivered in the State
of Texas and shall be construed in accordance with the laws of the State of Texas. Any
action brought to enforce or interpret this Agreement shall be brought in the court of
appropriate jurisdiction in the jurisdiction in which the Property is located. Should any
provision of this Agreement require judicial interpretation, it is agreed that the court
interpreting or considering same shall not apply the presumption that the terms hereof shall
be more strictly construed against a party by reason of the rule or conclusion that a
document should be construed more strictly against the party who itself or through hits agent
prepared the same; it being agreed that all parties hereto have participated in the
preparation of this Agreement and that legal counsel was consulted by each responsible
party before the execution of this Agreement.
24.7. Amendment and Waiver. This Agreement may not be amended or modified
in any way except by an instrument in writing executed by all parties hereto; provided,
however,either Owner or Operator may, in writing, (i)extend the time for performance of any
of the obligations of the other, (ii)waive any inaccuracies and representations by the other
contained in this Agreement, (iii) waive compliance by the other with any of the covenants
contained in this Agreement,and(iv)waive the satisfaction of any condition that is precedent
to the performance by the party so waiving any of its obligations under this Agreement.
24.8. No Joint Venture. Nothing contained herein shall be deemed or construed by
the parties hereto or by any third party as creating the relationship of(i) principal agent, (ii)
a partnership, or (iii) a joint venture between the parties hereto.
Golf Course Management Agreement Page 33
24.9. Exhibits. All Exhibits attached hereto are incorporated herein by this reference
as if fully set forth herein; provided, however, in the event that at the time of the execution
of this Agreement any of the Exhibits to be attached are incomplete, the parties shall use
their best efforts to complete such Exhibits at the earliest possible date. To the extent this
Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits,
such defect shall be cured as such incomplete Exhibits are made complete in accordance
with this Section, except to the extent that such Exhibits are deemed and stipulated by the
parties to be complete on the execution of this Agreement by the parties hereto. If any
Exhibits are subsequently changed by the mutual written agreement of the parties, the
Exhibits shall be modified to reflect such change or changes and initialed by the parties.
24.10. Caption. Captions,titles to sections,and paragraph headings used herein are
for convenience or reference and shall not be deemed to limit or alter any provision hereof.
24.11. Survival. All covenants, agreements, representations, and warranties made
herein shall survive the execution and delivery of this Agreement. All other documents and
instruments to be executed and delivered in accordance herewith shall continue in full force
and effect.
24.12. Governing Document This Agreement shall govern in the event of any
inconsistency between this Agreement and any of the Exhibits attached hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their proper, duly authorized corporate officers, all as of the day and year first
above set forth.
OWNER:
Attest: CITY OF ROUND ROCK, TEXAS
-'1
By:
4Rrt .AStluka,AJr., Ma
OPERATOR:
Attest: CCA SILBAND/GOLFCORP/ROUND
ROCK, INC.
By; By.
Ekyl , its
Golf Course Management Agreement Page 34
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT (!) AMOUNT
1 06/01/2000 46,000.00
2 07/01/2000 46,000.00
3 08/01/2000 46,000.00
4 09/01/2000 46,000.00
5 10/01/2000 46,000.00
6 11/01/2000 36,671.28
7 12/01/2000 36,671.28
8 01/01/2001 36,671.28
9 02/01/2001 36,671.28
10 03/01/2001 36,671.28
11 04/01/2001 36,671.28
12 05/01/2001 60,000.00
Total 510,027.70 440,055.40
13 06/01/2001 46,000.00
14 07/01/2001 46,000.00
15 08/01/2001 46,000.00
16 09/01/2001 46,000.00
17 10/01/2001 46,000.00
18 11/01/2001 36,671.28
19 12/01/2001 36,671.28
20 01/01/2002 36,671.28
21 02/01/2002 36,671.28
22 03/01/2002 36,671.28
23 04/01/2002 36,671.28
24 05/01/2002 60,000.00
Total 510,027.70 440,055.40
25 06/01/2002 46,000.00
26 07/01/2002 46,000.00
27 08/01/2002 46,000.00
28 09/01/2002 46,000.00
29 10/01/2002 46,000.00 (')Debt service payments are to be
30 11/01/2002 36,671.28 made according to this schedule
31 12/01/2002 36,671.28 from gross receipts to the extent
32 01/01/2003 36,671.28 they are available. Once the full
33 02/01/2003 36,671.28 amount of the annual bond debt
34 03/01/2003 36,671.28 payment has been funded, no
35 04/01/2003 36,671.28 further monthly debt payment will be
36 05/01/2003 00,000.00 due during that term year.
Total 510,027.70 440,055 40
EXHIBIT
GLF2000A.WK4 [-A--]
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT ( 1 AMOUNT
37 06/01/2003 46,000.00
38 07/01/2003 46,000.00
39 08/01/2003 46,000.00
40 09/01/2003 46,000.00
41 10/01/2003 46,000.00
42 11/01/2003 36,671.28
43 12/01/2003 36,671.28
44 01/01/2004 36,671.28
45 02/01/2004 36,671.28
46 03/01/2004 36,671.28
47 04/01/2004 36,671.28
48 05/01/2004 60,000.00
Total 510,027 70 440,055.40
49 06/01/2004 46,000.00
50 07/01/2004 46,000.00
51 08/01/2004 46,000.00
52 09/01/2004 46,000.00
53 10/01/2004 46,000.00
54 11/01/2004 36,671.28
55 12/01/2004 36,671.28
56 01/01/2005 36,671.28
57 02/01/2005 36,671.28
58 03/01/2005 36,671.28
59 04/01/2005 36,671.28
60 05/01/2005 60,000.00
Total 510,027 70 440,055 40
61 06/01/2005 46,000.00
62 07/01/2005 46,000.00
63 08/01/2005 46,000.00
64 09/01/2005 46,000.00
65 10/01/2005 46,000.00 (*)Debt service payments are to be
66 11/01/2005 36,671.28 made according to this schedule
67 12/01/2005 36,671.28 from gross receipts to the extent
68 01/01/2006 36,671.28 they are available. Once the full
69 02/01/2006 36,671.28 amount of the annual bond debt
70 03/01/2006 36,671.28
Payment has been funded, no
71 04/01/2006 36,671.28
72 05/01/2006 further monthly debt payment will be
00 due during that term year.
Total 510,027 70 440,055 40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT(*) AMOUNT
73 06/01/2006 46,000.00
74 07/01/2006 46,000.00
75 08/01/2006 46,000.00
76 09/01/2006 46,000.00
77 10/01/2006 46,000.00
78 11/01/2006 36,671.28
79 12/01/2006 36,671.28
80 01/01/2007 36,671.28
81 02/01/2007 36,671.28
82 03/01/2007 36,671.28
83 04/01/2007 36,671.28
84 05/01/2007 6-0,000.00
Total 510,027.70 440,055.40
85 06/01/2007 46,000.00
86 07/01/2007 46,000.00
87 08/01/2007 46,000.00
88 09/01/2007 46,000.00
89 10/01/2007 46,000.00
90 11/01/2007 36,671.28
91 12/01/2007 36,671.28
92 01/01/2008 36,671.28
93 02/01/2008 36,671.28
94 03/01/2008 36,671.28
95 04/01/2008 36,671.28
96 05/01/2008 60,000.00
Total 510,027 70 440,055 40
97 06/01/2008 46,000.00
98 07/01/2008 46,000.00
99 08/01/2008 46,000.00
100 09/01/2008 46,000.00
101 10/01/2008 46,000.00
(")debt service payments are to be
102 11/01/2008 36,671.28
made according to this schedule
103 12/01/2008 36,671.28
from gross receipts to the extent
104 01/01/2009 36,671.28
they are available. Once the full
105 02/01/2009 36,671.28
amount of the annual bond debt
106 03/01/2009 36,671.28
Payment has been funded, no
107 04/01/2009 36,671.28
108 05/01/2009 further monthly debt payment will be
6 0 .00 due during that term year.
Total -5-10,027.70 440,055.40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT (*) AMOUNT
109 06/01/2009 46,000.00
110 07/01/2009 46,000.00
111 08/01/2009 46,000.00
112 09/01/2009 46,000.00
113 10/01/2009 46,000.00
114 11/01/2009 36,671.28
115 12/01/2009 36,671.28
116 01/01/2010 36,671.28
117 02/01/2010 36,671.28
118 03/01/2010 36,671.28
119 04/01/2010 36,671.28
120 05/01/2010 60 00.00
Total 510,027.70 440,055.40
121 06/01/2010 46,000.00
122 07/01/2010 46,000.00
123 08/01/2010 46,000.00
124 09/01/2010 46,000.00
125 10/01/2010 46,000.00
126 11/01/2010 36,671.28
127 12/01/2010 36,671.28
128 01/01/2011 36,671.28
129 02/01/2011 36,671.28
130 03/01/2011 36,671.28
131 04/01/2011 36,671.28
132 05/01/2011 60,000.00
Total 510,027.70 440,055.40
133 06/01/2011 46,000.00
134 07/01/2011 46,000.00
135 08/01/2011 46,000.00
136 09/01/2011 46,000.00
137 10/01/2011 46,000.00 (*)Debt service payments are to be
138 11/01/2011 36,671.28 made according to this schedule
139 12/01/2011 36,671.28 from gross receipts to the extent
140 01/01/2012 36,671.28 they are available. Once the full
141 02/01/2012 36,671.28 amount of the annual bond debt
142 03/01/2012 36,671.28 payment has been funded, no
143 04/01/2012 36,671.28 further monthly debt payment will be
144 05/01/2012 60.000.00 due during that term year.
Total 510,027 70 440,055 40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT(*) AMOUNT
145 06/01/2012 46,000.00
146 07/01/2012 46,000.00
147 08/01/2012 46,000.00
148 09/01/2012 46,000.00
149 10/01/2012 46,000.00
150 11/01/2012 36,671.28
151 12/01/2012 36,671.28
152 01/01/2013 36,671.28
153 02/01/2013 36,671.28
154 03/01/2013 36,671.28
155 04/01/2013 36,671.28
156 05/01/2013 60,000.00
Total 510,027.70 440,055.40
157 06/01/2013 46,000.00
158 07/01/2013 46,000.00
159 08/01/2013 46,000.00
160 09/01/2013 46,000.00
161 10/01/2013 46,000.00
162 11/01/2013 36,671.28
163 12/01/2013 36,671.28
164 01/01/2014 36,671.28
165 02/01/2014 36,671.28
166 03/01/2014 36,671.28
167 04/01/2014 36,671.28
168 05/01/2014 60,000.00
Total 510,027.70 440,055.40
169 06/01/2014 46,000.00
170 07/01/2014 46,000.00
171 08/01/2014 46,000.00
172 09/01/2014 46,000.00
173 10/01/2014 46,000.00 (')Debt service payments are to be
174 11/01/2014 36,671.28 made according to this schedule
175 12/01/2014 36,671.28 from gross receipts to the extent
176 01/01/2015 36,671.28 they are available. Once the full
177 02/01/2015 36,671.28 amount of the annual bond debt
178 03/01/2015 36,671.28 payment has been funded, no
179 04/01/2015 36,671.28 further monthly debt payment will be
180 05/01/2015 60,000.00 due during that term year.
Total 510,027 70 440,055.40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT(*1 AMOUNT
181 06/01/2015 46,000.00
182 07/01/2015 46,000.00
183 08/01/2015 46,000.00
184 09/01/2015 46,000.00
185 10/01/2015 46,000.00
186 11/01/2015 36,671.28
187 12/01/2015 36,671.28
188 01/01/2016 36,671.28
189 02/01/2016 36,671.28
190 03/01/2016 36,671.28
191 04/01/2016 36,671.28
192 05/01/2016 60,000.00
Total 510,027.70 440,055.40
193 06/01/2016 46,000.00
194 07/01/2016 46,000.00
195 08/01/2016 46,000.00
196 09/01/2016 46,000.00
197 10/01/2016 46,000.00
198 11/01/2016 36,671.28
199 12/01/2016 36,671.28
200 01/01/2017 36,671.28
201 02/01/2017 36,671.28
202 03/01/2017 36,671.28
203 04/01/2017 36,671.28
204 05/01/2017 60,000.00
Total 510,027.70 440,055.40
205 06/01/2017 46,000.00
206 07/01/2017 46,000.00
207 08/01/2017 46,000.00
208 09/01/2017 46,000.00
209 10/01/2017 46,000.00 (*)Debt service payments are to be
210 11/01/2017 36,671.28 made according to this schedule
211 12/01/2017 36,671.28 from gross receipts to the extent
212 01/01/2018 36,671.28 they are available. Once the full
213 02/01/2018 36,671.28 amount of the annual bond debt
214 03/01/2018 36,671.28 payment has been funded, no
215 04/01/2018 36,671.28 further monthly debt payment will be
216 05/01/2018 60,000.00 due during that term year.
Total 510,027.70 440,055.40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT (!) AMOUNT
217 06/01/2018 46,000.00
218 07/01/2018 46,000.00
219 08/01/2018 46,000.00
220 09/01/2018 46,000.00
221 10/01/2018 46,000.00
222 11/01/2018 36,671.28
223 12/01/2018 36,671.28
224 01/01/2019 36,671.28
225 02/01/2019 36,671.28
226 03/01/2019 36,671.28
227 04/01/2019 36,671.28
228 05/01/2019 60,000.00
Total 510,027.70 440,055.40
229 06/01/2019 46,000.00
230 07/01/2019 46,000.00
231 08/01/2019 46,000.00
232 09/01/2019 46,000.00
233 10/01/2019 46,000.00
234 11/01/2019 36,671.28
235 12/01/2019 36,671.28
236 01/01/2020 36,671.28
237 02/01/2020 36,671.28
238 03/01/2020 36,671.28
239 04/01/2020 36,671.28
240 05/01/2020 60.000.00
Total 510,027.70 440,055.40
241 06/01/2020 46,000.00
242 07/01/2020 46,000.00
243 08/01/2020 46,000.00
244 09/01/2020 46,000.00
245 10/01/2020 46,000.00 (*)Debt service payments are to be
246 11/01/2020 36,671.28 made according to this schedule
247 12/01/2020 36,671.28 from gross receipts to the extent
248 01/01/2021 36,671.28 they are available. Once the full
249 02/01/2021 36,671.28 amount of the annual bond debt
250 03/01/2021 36,671.28 payment has been funded, no
251 04/01/2021 36,671.28 further monthly debt payment will be
252 05/01/2021 60,000.00 due during that term year.
Total 510,027.70 440,055.40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT (*) AMOUNT
253 06/01/2021 46,000.00
254 07/01/2021 46,000.00
255 08/01/2021 46,000.00
256 09/01/2021 46,000.00
257 10/01/2021 46,000.00
258 11/01/2021 36,671.28
259 12/01/2021 36,671.28
260 01/01/2022 36,671.28
261 02/01/2022 36,671.28
262 03/01/2022 36,671.28
263 04/01/2022 36,671.28
264 05/01/2022 60,000.00
Total 510,027.70 440,055.40
265 06/01/2022 46,000.00
266 07/01/2022 46,000.00
267 08/01/2022 46,000.00
268 09/01/2022 46,000.00
269 10/01/2022 46,000.00
270 11/01/2022 36,671.28
271 12/01/2022 36,671.28
272 01/01/2023 36,671.28
273 02/01/2023 36,671.28
274 03/01/2023 36,671.28
275 04/01/2023 36,671.28
276 05/01/2023 60,000.00
Total 510,027.70 440,055.40
277 06/01/2023 46,000.00
278 07/01/2023 46,000.00
279 08/01/2023 46,000.00
280 09/01/2023 46,000.00
281 10/01/2023 46,000.00 (*)Debt service payments are to be
282 11/01/2023 36,671.28 made according to this schedule
283 12/01/2023 36,671.28 from gross receipts to the extent
284 01/01/2024 36,671.28 they are available. Once the full
285 02/01/2024 36,671.28 amount of the annual bond debt
286 03/01/2024 36,671.28 payment has been funded, no
287 04/01/2024 36,671.28 further monthly debt payment will be
288 05/01/2024 60,000.00 due during that term year.
Total 510,027.70 440,055.40
GLF2000A.WK4
City of Round Rock, Texas
Exhibit A
Monthly Debt Payment Schedule
MONTHLY ANNUAL
DEBT BOND DEBT
PAYMENT DUE PAYMENT PAYMENT
NUMBER DATE AMOUNT (*) AMOUNT
289 06/01/2024 46,000.00
290 07/01/2024 46,000.00
291 08/01/2024 46,000.00
292 09/01/2024 46,000.00
293 10/01/2024 46,000.00
294 11/01/2024 36,671.28
295 12/01/2024 36,671.28
296 01/01/2025 36,671.28 (*)Debt service payments are to be
297 02/01/2025 36,671.28 made according to this schedule
298 03/01/2025 36,671.28 from gross receipts to the extent
299 04/01/2025 36,671.28 they are available. Once the full
300 05/01/2025 60,000.00 amount of the annual bond debt
payment has been funded,no
Total 510,027.70 440,055.40 further monthly debt payment will be
due during that term year.
Grand Total 1.001.385.00
GLF2000A.WK4
City of Round Rock,Texas
Exhibit B
Summary Bond Debt Payments-
Golf Portion-1995 C.O. & 1997 G.O
Due
Date Amount Total
12/01/00 $220,028
06/01/01 220.028 $440,055
12/01/01 220,028
06/01/02 220,028 440,055
12/01/02 220,028
06/01/03 220,028 440,055
12/01/03 220,028
06/01/04 220,028 440,055
12/01/04 220,028
06/01/05 220.028 440,055
12/01/05 220,028
06/01/06 220,028 440,055
12/01/06 220,028
06/01/07 220,028 440,055
12/01/07 220,028
06/01/08 220.028 440,055
12/01/08 220,028
06/01/09 220,028 440,055
12/01/09 220,028
06/01/10 220,028 440,055
12/01/10 220,028
06/01/11 220,028 440,055
12/01/11 220,028
06/01/12 220,028 440,055
12/01/12 220,028
06/01/13 220,028 440,055
12/01/13 220,028
06/01/14 220,028 440,055 EXHIBIT
r11 rnnnnn tnniA
City of Round Rock, Texas
Exhibit B
Summary Bond Debt Payments-
Golf Portion-1995 C.O. & 1997 G.O
Due
Date Amount Total
12/01/14 220,028
06/01/15 220,028 440,055
12/01/15 220,028
06/01/16 220,028 440,055
12/01/16 220,028
06/01/17 220.028 440,055
12/01/17 220,028
06/01/18 220,028 440,055
12/01/18 220,028
06/01/19 220.028 440.055
12/01/19 220,028
06/01/20 220,028 440,055
12/01/20 220,028
06/01/21 220,028 440,055
12/01/21 220,028
06/01/22 220.028 440,055
12/01/22 220,028
06/01/23 220.028 440,055
12/01/23 220,028
06/01/24 220,028 440,055
12/01/24 220,028
06/01/25 220.028 440,055
Grand Total $11.001,324
/� r`11 f%A 1 A/I/A
•, VOL 2060PA6E413
FIELD NOTES
FOREST CREIK GOLF CUM
BEING 185.25 acres of land out of -the E. W. Matthews Survey, Abstract No. 449,
and the John H. Randall Survey, Abstract No. 531. Williamson County, Texas, being
all of that certain 15.25 acre tract of land described in a deed to the City of
Round Rock recorded In Volume 1853 at Page 855, Official Records, Williamson
County, and 170.00 acres out of that certain 582.35 acre tract of land described
In a deed to the Ben Franklin Corporation recorded in Volume 1020 at Page 812,
Official Records of Williamson County, and being more particularly described by
metes and bounds as follows, to wit:
11ACr 1
BEGINNING at the most northerly northeast corner of said 582.35 acre tract, said
Beginning Point also being the southeast corner of Oak Bluff Estates, Phase 2, a
subdivision of record filed in Cabinet F. Slide 253, Plat Records of Williamson
County;
THENCE S 110 59' 28" W a distance of 241.09 feet with the east line of said
582.35 acre tract to an iron rod set at the most northerly corner of said 15.25
acre tract;
THENCE S 440 231 26" E a distance of 362.62 feet to an iron rod set at the
northeast corner of said 15.25 acre tract;
THENCE S 120 43' 00" W a distance of 1068.00 feet to an iron rod at the southeast
corner of said 15.25 acre tract in the north line of said 582.35 acre tract;
THENCE N 890 17' 00" W a distance of 250.00 feet with the north line of said
582.35 acre tract and the south line of said 15.25 acre tract to an iron rod,
from which an iron rod at the southwest corner of said 15.25 acre tract bears
N 89' 17' W a distance of 490.00 feet;
THENCE traversing the Interior of said 582.35 acre tract, the following described
courses and distances to iron rods set:
(1) S 000 00' 00" W a distance of 185.00 feet;
(2) S 73' 08' 37" E a distance of 491.70 feet;
(3) N 870 47' 51" E a distance of 910.67 feet;
(4) S 710 18' 25" E a distance of 702.03 feet;
(5) S 410 49' 46" E a distance of 249.69 feet;
(6) S 120 06' 57" W a distance of 428.54 feet;
(7) S 63' 30' 59" E a distance of 192.50 feet;
(8) S 06° 19' 50" W a distance of 195.32 feet;
(9) S 67" 12' 02" W a distance of 209.34 feet;
(10) S 030 27' 20" E a distance of 133.67 feet;
(11) S 70' 46' 37" W a distance of 337.32 feet;
(12) N 370 21' 55" W a distance of 80.59 feet;
(13) N 730 21' 35" W a distance of 861.06 feet;
(14) N 790 41' 42" W a distance of 479.02 feet;
(15) N 85" 13' 05" W a distance of 113.57 feet;
(16) N 730 15' 50" W a distance of 97.58 feet;
(17) S 61" 31' 35" W a distance of 59.27 feet; EXHIBIT
(18) S 140 32' 49" W a distance of 629.23 feet;
(19) S 350 34' 39" W a distance of 665.09 feet;
(20) N 830 58' 40" W a distance of 213.16 feet;
YOL2060pAAM
TRACT I- (Continued)
(21) N 550 02' 00" W a distance of 167.70 feet;
(22) N 030 131 30" E a distance of 592.02 feet;
(23) N 620 54' 16" E a distance of 231.51 feet;',
(24) N 000 00' 00" E a distance of 215.00 feet;
(25) N 430 36' 10" E a distance of 290.00 feet;
(26) N 08' 12' 44" W a distance of 115.12 feet;
(27) N 32' 48' 33" W a distance of 477.18 feet;
(28) N 010 50' 47" W a distance of 532.27 feet;
(29) N 47' 40' 35" W a distance of 118.82 feet;
(30) N 090 17' 54" W a distance of 310.19 feet;
(31) N 070 12' 51" E a distance of 786.85 feet;
(32) N 500 33' 43" W a distance of 146.28 feet;
(33) N 770 28' 40" W a distance of 129.26 feet;
(34) S 540 45' 43" W a distance of 574.87 feet;
(35) S 41° 49' 01" W a distance of 674.91 feet;
(36) S 03" 16' 37" E a distance of 73.15 feet to an iron rod set in the north line
of Golf Road;
(37) N 590 49' 56" W a distance of 405.72 feet with the north line of said Golf
Road to an iron rod set;
(38) N 300 10' 04" E a distance of 42.96 feet;
(39) N 07" 40' 14" W a distance of 299.68 feet;
(40) N 000 39' 17" E a distance of 175.01 feet;
(41) N 32° 12' 39" E a.distance of 118.19 feet;
(42) N 61° 45' 31" E a distance of 111.23 feet;
(43) N 790 39' 30" E a distance of 231.84 feet;
(44) N 580 08' 42" E a distance of 351.95 feet;
(45) N 24' 26' 38" E a distance of 226.91 feet to an iron rod set in the south
line of Golf Road;
VOL 2d6OPAGA15
TRACT 1 (Continued)
THENCE along and with the southerly line of Golf Road, the following described
four (4) courses and distances:
(1) S 880 54' 23" E a distance of 236.04 feet to an Iron rod found at the
beginning of 'a curve to the right;
(2) An are distance of 138.62 feet with said curve to the right, said curve
having a central angle of 6° 59' 52", a radius of 1134.99 feet, tangents of 69.40
feet, and a chord bearing and distance of S 850 241. 27" E 138.53 feet, to an iron
rod found at the point of tangency of said curve
(3) S 810 54' 31" E a distance of 84.27 feet to an iron rod found at the
beginning of a curve to the left;
(4) An are distance of 240.06 feet with said curve to the left, said curve having
a central angle of 590 48' 05", a radius of 230.00 feet, tangents of 132.26 feet,
and a chord bearing and distance of N 680 11' 27" E 229.31 feet, to an iron rod
found at the intersection of the southerly line of said Golf Road and the north
line of said 582.35 acre tract;
THENCE along and with the north line of said 582.35 acre tract and the south line
of said Oak Bluff Estates, Phase 2, the following described three (3) courses and
distances:
(1) S 880 53' 40" E a distance of 89.20 feet to an iron rod found;
(2) S 880 47' 57" E a distance of 380.72 feet to an iron rod found, and;
(3) S 890 02' 29" E a distance of 501.86 feet to the Place of Beginning,
containing 145.4457 acres of land.
SAVE AND EXCEPT PARCEL 1, described as follows, to wit:
BEGINNING at an Iron rod set in the interior of the above described Tract 1, from
which the northeast corner of said .582.35 acre tract described in Volume 1020,
Page 812, Official Records of Williamson County, (also being the northeast corner
of Tract 1), bears N 100 12' 08" E a distance of 2008.84 feet;
THENCE traversing the interior of said 130.1957 acre tract, the following
described courses and distances to iron rods set;
(1) S 590 10' 43" E a distance of 286.11 feet;
(2) S 820 42' 15" E a distance of 256.26 feet;
(3) N 840 11' 36" E a distance of 593.04 feet;
(4) N 650 03' 22" E a distance of 237.12 feet;
(5) $ 530 33' 39" E a distance of 665.02 feet;
(6) S 100 14' 05" E a distance of 365.82 feet;
(7) S 200 33' 22" W a distance of 170.88 feet;
(8) S 590 51' 31" W a distance of 115.00 feet;
(9) N 680 55' 55" W a distance of 397.09 feet;
(10) N 500 37' S0" W a distance of 252.24 feet;
ti
r t
vot 2060pa-A16
PARCEL 1 (Continued)
(11) N 86° 18' 31" W a distance of 621.29 feet;
(12) N 700 271 48" W a distance of 164.47 feet;
(13) S 610 08".59"'.W a distance of 190.66 feet;
(14) N 56° 431 30" W a distance of 153.10 feet;
(15) N 360 081 31" W a distance of 220.42 feet;
(16) N 250 061 53" W a distance of 168.12 feet, and;
(17) N 180 351 36" E a distance of 286.88 feet to the Place of Beginning,
containing 25.2753 acres of land.
r
AND ALSO TRACT 2, described as follows, to wit:
BEGINNING at an Iron rod set in the southerly line of Golf Road, from which the
northeast corner of said 582.35 acre tract bears N 550 291 40" E a distance of
2490.84 feet;
THENCE traversing the interior of said 582.35 acre tract, the following described
courses and distances to iron rods set;
(1) S 030 161 42" E a distance of 172.03 feet;
(2) S 650 021 25" W a distance of 323.33 feet;
(3) S 100 271 36" W a distance of 400.32 feet;
(4) S 180 211 32" E a distance of 548.24 feet;
(5) S 000 001 00" E a distance of 161.86 feet;
(6) S 450 351 55" W a distance of 328.92 feet;
(7) S 620 391 48" W a distance of 132.83 feet;
(8) S 190 441 27" W a distance of 48.14 feet to an iron rod set in the northerly
line of Golf Road;
(9) N 700 151 53" W a distance of 146.91 feet with the north line of Golf Road to
an iron rod set;
(10) N 190 441 10" E a distance of 96.36 feet;
(11) N 19" 131 50" W a distance of 227.71 feet;
(12) N 480 141 2311 W a distance of 187.68 feet;
(13) N 90' 001 00" W a distance of 260.00 feet;
(14) S 81° 471 34" W a distance of 475.50 feet;
(15) S 64° 171 29" W a distance of 95.14 feet;
(16) S 460 47' 24" W a distance of 85.12 feet;
(17) S 280 48' 59" W a distance of 293.23 feet to an iron rod set in the north
line of Golf Road;
HL 2 aA17
TRACT 2 (continued)
(18) An are distance of 210.00 feet with the north line of said Coif Road, said
north line being a curve to the left having a central angle of 230 08' 19", a
radius of 520.00 feet, tangents of 106.45 feet, and a chord bearing and distance
of N 770 58' 57" W 208.58 feet, to an iron rod set;
(19) N 08° 31'04"•W a distance of 103.05 feet;
(20) N 57' 08' 21" W a distance of 191.67 feet;
(21) N 610 28' 37" W a distance of 471.77 feet;
(22) N 010091 00" E a distance of 224.77 feet;
(23) N 3011 05' 17" E a distance of 269.28 feet;
(24) N 090 10' 59" W a distance of 626.69 feet;
(25) N 180 49' 17" W a distance of 132.25 feet;
(26) S 750 001 00" W a distance of 20.00 feet;
(27) N 270 19' 05" W a distance of 115.46 feet;
(28) N 08" 41' 22" E a distance of 117.28 feet;
(29) N 73" 36' 11" E a distance of 200.60 feet;
(30) N 250 15' 48" E a distance of 96.35 feet;
(31) N 520 48' 39" E a distance of 177.48 feet;
(32) N 460 31' 54" E a distance of 437.22 feet;
(33) N $20 16' 52" E a distance of 494.26 feet;
(34) N 050 41' 35" W a distance of 286.74 feet;
(35) N 890 49' 52" E a distance of 228.02 feet;
(36) S 750 38' 46" E a distance of 75.39 feet;
(37) S 610 23' 10" E a distance of 75.22 feet;
(38) S 250 08' 10" E a distance of 79.27 feet;
(39) S 07° 51' 10" W a distance of 81.81 feet;
(40) S 540 17' 36" E a distance of 174.08 feet;
(41) S 190 39' 22" E a distance of 420.78 feet;
(42) S 540 28' 33" E a distance of 475.71 feet;
(43) N 36" 09' 31" E a distance of 26.21 feet to an iron rod set in the south line
of Golf Road;
(44) An arc distance of 210.32 feet with the south line of said Golf Road, said
south line being a curve to the left having a central angle of 220 16. 25", a
radius of 541.03 feet, tangents of 106.51 feet, and a chord bearing and distance
of S 480 41' 44" E 209.00 feet, to an iron rod found at the point of tangency of
said curve;
(45) S 59° 49' 56" E a distance of 530.52 feet with the south line of said Golf
Road to the Place of Beginning, containing 118.4600 acres of land.
VOL 2060PA6E418 .
SAVE AND F MT PARCEL 2. described as follows, to wit:
BEGIM(NG at an iron rod set in the interior of the above described Tract 2. from
which the northeast corner of said 582.35 acre tract described in Volume 1020,
Page 812, Official Records of Williamson County. bears N 630 22' 40" E a distance
of 2903.79 feet;
THENCE traversing, the Interior of said 118.4600 acre Tract 2, the following
described courses and distances to Iron rods set;
(1) S 15° 56' 43" W a distance of 135.00 feet;
(2) S 320 29' 26" W a distance of 154.35 feet;
(3) S 100 50' 05" W a distance of 425.59 feet;
(4) S 000 47' 07" E a distance of 221.07 feet;
(5) S 680 36' 00" W a distance of 1177.19 feet;
(6) N 710 50' 18" W a distance of 120.23 feet;
(7) N 490 32' 18" W a distance of 198.82 feet;
(8) N 220 49' 00" W a distance of 90.58 feet;
(9) S 670 11' 00" W a distance of 152.19 feet;
(10) N 280 27' 38" W a distance of 48.46 feet;
(11) N 300 21' 46" E a distance of 310.60 feet;
(12) N 210 00' 23" W a distance of 772.36 feet;
(13) N 490 18' 38" E a distance of 676.38 feet;
(14) N 430 37' 01" E a distance of 556.66 feet;
(15) S 660 18' 34" E a distance of 107.02 feet;
(16) S 170 41' 23" E a distance of 396.44 feet;
(17) S 67° 22' 48" E a distance of 825.00 feet to the Place of Beginning,
containing 53.3804 acres of land.
COALTER i ASSOCIATES. SURVEYORS `` .��.• �c^-
1
Stan Coalter, RPS, LSLS ` (� Z3
7-21-91 STATE OF TEXAS F
hereby certify that thl u,,ira
on the date and at the time stamrje-- ;l ,e -o
by me, and was duly RECORDED in the'Volum(; N c
and Page of the named RECORDS of Miliamsor,
y t
County, Texas, as stamped hereon by me. on 7)
S P 2 6 1991 - C'
• r � - fV J
It W
COUM
` 1I�
`�O• ouN�r CLERK
CIO
._ NTY, TEXAS
T-1 Owners Policy Schedules—Form Prescribe¢by State Board of Insurances of Texas—Rev1 1-1-1984
THIS.POLIjCY IS ISSUID IN SCHEOF A ICY NUNE
5801 677836 A
GFNo. 89014961
Owner Policy No.:o-5801= 788110. A Date of Policy. December 2 9, 1989
Name of Insured: C I T Y O F ROUND ROCK
Amount of:
$6 , 232 , 969 . 00
1. The estate or interest in the land,insured by this policy is:.(fee simple,leasehold,easement,etc.-identify or describe)
FEE SIMPLE
2. The land referred to in this policy is described as follows:
TRACT A : 170. 00 acres of land, more or less, out of the E. W.
MATTHEWS SURVEY, Abstract No. 531, in Williamson County, Texas,
and being more fully described by metes and bounds in Exhibit
"A" attached hereto and made a part hereof.
TRACT B': 15.25 acres of land, more or less, out of the E. W.
MATTHEWS SURVEY, Abstract No. 449, in Williamson County, Texas,
and being more _fully described by metes and bounds in Exhibit
"A" attached hereto and made a part hereof.
EXHIBIT
STEWART TITLE
5612
GUARANTY COMPANY
T-1 Owners Porpy Form Ptescn'bed by-State Board of hmar>ce of Tf--, Revised 2-1-91
SCHEDULE B .Policy No.:0-5801-
GF -89014961' 788110 A
This policy Is subject to the Conditions and Stipulations hereof,the terms and conditions of the leases or
easements lnsured,ff any,shown in Schedule A,and to the following matters which are additional exceptions from
the coverage of this policy:
1. The following restrictive covenants of record itemized below(the Company must either insert specific recording
data or delete this exception): AS TO TRACT A: None, of record, except as
recorded in Volume 1020, Page 769, Official Records, Williamson
County, Texas, and Amendment to Restrictions and Easements dated
December 8, 1989, recorded in Volume 1866 , Page 1 , Official
Continued on next page
2. Any discrepancies,Conflicts,or shortages in area or boundary lines,or any encroachments,or any overlapping
of improvements.
3. Standby Fees and taxes for the year 19 89- and subsequent years,and subsequent assessments
for prior years due to change in land usage or ownership. * SEE BELOW
4. The following Gens)and all terms,provisions and conditions of the instrucnent(s)creating or evidencing said
lien(s):
5. Rights of parties in possession.
6. Visible and apparent easements, if any.
7. - The rights of Brushy Creek Water Control and Improvement
District No. 1 to levy taxes and issue bonds.
8. Any and all liens arising by reason of unpaid bills or claims
for work performed or materials furnishe'd in connection with
improvements placed, or to be placed, upon the subject land.
However, the Company does guarantee that no such liens have been
filed with the County Clerk of Williamson County, Texas, prior
to the date hereof. Liability hereunder at the date hereof is
limited to $1 , 700,000.00. Liability shall increase. as
contemplated improvements are made, so that any lost payable
hereunder shall be limited to said sum plus the amount actually
expended by the Insured in improvements at the time the loss
occurs . Any expenditures made for improvements, subsequent to
the date of this policy, will be deemed made as of the date of
this policy. In no event shall that liability of the Company
hereunder exceed the face amount of this policy. Nothing
contained in this paragraph shall be construed as limiting any
exception or any printed provision of this policy.
9 . All rights , terms , conditions, liens, mineral reservations ,
easements , reversionary interests and other provisions of Land
Use Agreement for Texas and Franklin Capital Corporation ,
recorded in Volume 1853 , Page 806 , Official Records, Williamson
County , Texas , as corrected by instrument recorded in Volume
206 :, Page 447, Official Records, Williamson County , Texas .
Continued on next page
GEORGET LE & Y, INC.
By
Authorized erSTEWART TITLE
GUARANTY COMPANY
GF 89014961 1'
Attached to:and made A.part of Stewart Title Guaranty Company.Policy No.. 0-5801-7.88110
A 3
Continuation of Schedule B
SCHEDULE B, PARAGRAPH 1 CONTINUED
Records, Williamson County, Texas.
AS TO TRACT B: None of record, except those in Deed dated December
21, 1989, recorded in Volume 1853,, Page 855, Official Records ,
Williamson County, Texas.
10 . Terms , provisions and conditions of Trust Agreement dated as of
December 1 , 1989 by and among the City of Round Rock, Texas,
First City, Texas-Austin, N.A. and Round Rock Golf, Inc . as
described in Memorandum of Trust Agreement , recorded in Volume
1864, Page 940, Official Records, Williamson County, Texas.
11. Terms, provisions and conditions of Golf Course Construction
Lease/ Purchase Agreement between Round Rock Golf, Inc. , as
Lessor and the City of Round Rock, Texas, as Lessee, dated as of
December 1 , 1989, recorded in Volume 1851, Page 693, Official
Records, Williamson County, Texas, as corrected by instrument
recorded in Volume 2060, Page 419, official Records, Williamson
County, Texas.
12. Terms , provisions and conditions of Ground Lease between City . of
Round Rock and Round Rock Golf, Inc. dated December 1 , 1989.
13. Terms, provisions and conditions of Management Agreement between
City of Round Rock and CCA Silband/GolfCorp/Round Rock, Inc.
dated December 1 , 1989.
14 . We do not insure access to the herein described property.
15. Easement dated May 1 , 1958, executed by Otto C. Pfluger to
Brushy Creek Water Control and Improvement District No. 1 ,
recorded in Volume 430, Page 643, Deed Records, Williamson
County, Texas.
16 . AS TO TRACT A: Easement dated June 29, 1981 , executed by Karen
Lamprecht et al to Texas Power & Light Co . and Southwestern Bell
Telephone Co. , recorded in Volume 848 , Page 611 , Deed Records ,
Williamson County, Texas , if located so as to affect this
property .
17 . Portion of the property lying within 100 year flood plain as
shown on survey plat dated January 13 , 1984 , prepared by R. T .
Magness , Jr.-, Registered Public Surveyor No . 1433.
18 . 10 ' public utility easement along the most northerly property
Continued on next page
Page
203 STEWA RT TITLE
GUARANTY COMPANV
GF 89014961
Attached-to and made a part of Stewart Title Guaranty Company Policy No. -0-5801-788110 A
Continuation of Schedule 6
line as set out in deed dated May 1.0, 1984 , executed by
Pfluger-Knebei Ranch Partnership to Richland Hills Joint
Venture, recorded in Volume 1020, Page 769 , and as shown on
survey plat dated January 13, 1984, prepared by R. T. Magness,
Jr. , Registered Public Surveyor No. 1433, and subject to the
terms set out in Paragraph 3 of Amendment to Restrictions and
Easements dated December 8, 1989, recorded in Volume 1866, Page
19 Official Records, Williamson County, Texas .
19. Roadway easements as set out in Paragraph 4 of Amendment to
Restrictions and Easements dated December 8 , 1989, recorded in
Volume 1866, Page 1 , Official Records, Williamson County, Texas .
20. Covenant and Agreement to provide access to a certain 100 acre
tract by dedicated and constructed public roads in two (2)
locations as set out in deed dated May 10, 1984 , from Pfluger-
Knebel Ranch Partnership to Richland Hills Joint Venture,
recorded in Volume 1020, Page 769, Official Records, Williamson
County, Texas, as amended by Amendment to Restrictions and
Easements dated December 8, 1989, recorded in Volume- 1866, Page
1 , Official Records, Williamson County, Texas.
21 . Reversionary interest as set out in Dedication Deed dated
September 28, 1989, executed by Franklin Capital Corporation to
City of Round Rock, recorded in Volume 1853, Page 798, Official
Records, Williamson County, Texas, as corrected by Correction
Dedication Deed recorded in Volume 2060, Page 401 , Official
Records, Williamson County, Texas .
22. AS TO TRACT 8: Repurchase Option by Grantor in the event the
construction of a public golf course on this property _is not
commenced within two (2) years after the date' of the deed set
forth in Deed dated December 21 , 1989, from Pfluger-Knebel Ranch
Partnership to the City of Round Rock, recorded in Volume 1853,
Page 855, Official Records, Williamson County, Texas .
23. Covenant to include the remainder of the 100 acre tract of land
(approximately 84 . 75 acres) in Grantee ' s master plan for streets
and utility services as set forth in Deed dated December 21 ,
1989 from Pfluger-Knebel Ranch Partnership to the City of Round
Rock, recorded in Volume 1853 , Page 855 , Official Records ,
Williamson County, Texas.
24 . Agreement for the installation of fence by the Grantee on the
common property line of this property and the remainder of that
certain 100 acre tract of land as set forth in Deed dated
December 21 , 1989, from Pfluger-Knebel Ranch Partnership to the
City of Round Rock, recorded in Volume 1853 , Page 855 , Official
Continued on next page
Page
203A STEWART TITLE
GUARANTY ct)mrANV
GF . 89014961
Attached to.and made apart of Stewart Title Guaranty Company Policy No. 0-5801-788110 .A
Continuation of Schedule g
Records, Williamson County, Texas.
` including taxes levied by Brushy Creek Water Control and
Improvement District No. 1
Page
203A STEWART TITLE
GUARANTY COMPANY
voL 2060?„6E404 CT A
REVISED FIELD No TES
FOREST CREEK GOLF CLUB
BEING 170.00 acres of land out of the E. W. Matthews Survey, Abstract No. 449, and
the John H. Randall Survey, Abstract No. 531, Williamson County, Texas, and being
a part of that certain 582.35 acre tract of land described In a deed to Ben
Franklin Corporation recorded in. Volume 1020 at Page 812, Official Records of
Williamson County, and being more particularly described by metes and bounds as
follows, to wit:
TRACT 1
BEGINNING at the northeast corner of said 582.35 acre tract, said Beginning Point
also being the southeast corner of Oak Bluff Estates, Phase 2, a subdivision of
record filed in Cabinet F, Slide 253, Plat Records of Williamson County;
1111ME S 110 59' 28" W a distance of 610.09 feet to an iron rod found;
TRUCE S 480 10' 52" W a distance of 766.87 feet to an iron rod found;
111MCE S 090 53' 59" W a distance of 425.73 feet to an Iron rod found;
11010E S 890 17' 00" E a distance of 490.00 feet to an Iron rod set;
TIIEVCE traversing the Interior of said 582.35 acre tract, the following described
courses and distances to Iron rods set:
(1) S 00° 00'00" W a distance of 185.00 feet;
(2) S 730 08' 37" E a distance of 491.70 feet;
(3) N 87° 47' S1" E a distance of 910.67 feet;
(4) S 710 18' 25" E a distance of 702.03 feet;
(5) S 410 49' 46" E a distance of 249.69 feet;
(6) S 120 06' 57" W a distance of 428.54 feet;
(7) S 630 30' 59" E a distance of 192.50 feet;
(8) S OG° 19' 50" W a distance of 195.32 feet;
(9) S 670 12' 02" W a distance of 209.34 feet;
(10) S 030 27' 20" E a distance of 133.67 feet;
(11) S 700 4G' 37" If a distance of 337.32 feet;
(12) N 370 21' 55" W a distance of 80.59 feet;
(13) N 730 21' 35" W a distance of 861.06 feet;
(14) N 790 41' 42" 1Y a distance of 479.02 feet;
(I5) N 850 13' 05" 1Y a distance of 113.57 feet;
(16) N 730 15' 50" 1Y a distance of 97.58 feet;
(17) S 610 31' 35" if a distance of 59.27 feet:
(18) S 14° 32' 49" W a distance of 629.3 feet;
EEXHISIT
(19) S 35° 34' 39" 1Y a distance of 665.09 feet;(20) N 83° 58' 40" W a ctiatnnce of 213.16feet;
TRACT I` (Continued) 1/0L2060?na40t5
(21) N 550 02' 00" W a distance of 167.70 feet;
(22) N 030 13' 30" E a distance of 592.02 feet;
(23) N 620 54' 16" E a dlstance of 231.51 feet;
(24) N 000 00' 00" I� a distance of 215.00 feet; ,
(25) N 430 36' 10" E a distance of 290.00 feet; '
(26) N 080 12' 44" W a distance of 115.12 feet;
(27) N 320 48' 33" W a distance of 477.18 feet;
(28) N 01* 50' 47" W a distance of 532.27 feet;
(29) N 47' 40' 35" W a distance of 118.82 feet;
(30) N 090 17' 54" W a distance of 310.19 feet;
(31) N 070 12. 51" E a distance of 786.85 feet;
(32) N 500 33' 43" W a distance of 146.28 feet;
(33) N 770 28' 40" W a distance of 129:26 feet;
(34) S 540 45' 43" W a distance of 574.87 feet;
(35) S 410 49' 01" W a distance of 674.91 feet;
(36) S 030 16' 37" E a distance of 73.15 feet to an iron rod set In the north line
of Golf Road;
(37) N 590 49' 56" 1Y a distance of 405.72 feet with the north line of said Golf
Road to an Iron rod set;
(38) N 30' 10' 04" E a distance of 42.96 feet;
(39) N 070 40' 14" W a distance of 299.68 feet;
(40) N 000 39' 17" E a distance of 175.01 feet;
(41) N 320 12' 39" E a distance of 118.19 feet;
(42) N 610 45' 31" E a distance of 111.23 feet;
(43) N 790 39' 30" E a distance of 231.84 feet;
(44) N 580 08' 42" E a distance of 351.95 feet;
(45) N 240 26' 38" E a distance of 226.91 feet to an Iron rod set in the south
line of Golf Road;
�.V01206.0r„c.4
TRACT 1 (Continued)
TIIEtViCE along and with the .southerly 'line. of Golf Road, the following described
four (4) courses and distances:
(1) S 880 54' 23" E a distance of 236.04 feet to an Iron rod found at the
beginning of a curve to the right;
(2) An are distance of 138.62 feet with said curve to the right, said curve
having a central angle of 60 59' 52", a radius of 1134.99 feet, tangents of 69.40
feet, and a chord bearing and distance of S 850 24' 27" E 130.53 feet, to an iron
rod found at the point of tangency of said curve; ,
(3) S 810 54• 31" E a distance of 84.27 feet to an Iron rod found at the
beginning of a curve to the left;
(4) An arc distance of 240.06 feet with said curve to the left, said curve having
a central angle of 590 48. 05". a radius of 230.00 feet, tangents of 132.26 feet,
and a chord bearing and distance of N 680 11' 27" E 229.31 feet. to an Iron rod
found at the intersection of the southerly line of said Golf Road and the north
line of said 582.35 acre tract;
THENCE along and with the north line of said 582.35 acre tract and the south line
of said Oak Bluff Estates. Phase 2, the following described three (3) courses and
distances:
(1) S 88' 53' 40" E a distance of 89.20 feet to an Iron rod found;
(2) S 880 47' 57" E a distance of 380.72 feet to an iron rod found, and;
(3) S 890 021 29" E a distance of 501.86 feet! to the Place of Beginning.
containing 130.1957 acres of land.
SAVE AND EXCEPT PARCEL 1. described as follows. to wit:
DMIMIING at an Iron rod set In the Interior of the above described Tract 1, from
which the northeast corner of said 582.35 acre tract described In Volume 1020,
Page 812, Official Records of Williamson County, (also being the northeast corner
of Tract 1). bears N 100 12' 08" E a distance of 2008.84 feet;
TIIFNCC traversing the interior of said 130.1957 acre tract, the following
described courses and distances to Iron rods set;
(1) S 590 10' 43" E a distance of 286.11 feet;
(2) S 820 42' 15" E a distance of 256.26 feet;
(3) N 840 11' 36" E a distance of 593:04 feet;
(4) N 650 03' 22" E a distance of 237.12 feet;
(5) S 53' 33' 39" E a distance of 665.02 feet;
(6) S 10° 14' 05" E a distance of 365.82 feet;
(7) S 200 33' 22" W a distance of 170.88 feet;
(8) S 590 51' 31" W a distance of 115.00 feet;
(9) N 680 55' 55" W a distance of 397.09 feet;
(10) N SO- 37' 50" W a distance of 252.24 feet;
PARCEL.1, (Cont I nued)
(11) N 86° 18 31" W a distance of 621.29 feet;
(12) N 700 27' 48" W a distance of 164.47 feet;
(13) S 610 08' 59" W a:distance of 190.66 feet;
(14) N 560 43' 30" W a distance of 153.10 feet;
(15) N 360 08' 31" W a distance of 220.42 feet;
(16) N 250 06' 53" W a distance of 168.12 feet. and;
(17) N 180 35' 36" E a distance of 286.88 feet to the Place of Beginning.
containing 25.2753 acres of land.
AND ALSO TRACT 2. described as follows. to wit:
BIMINNING at an iron rod set In the southerly line of. Golf Road. from which the
northeast corner of said 582.35 acre tract bears N 550 29' 40" E a distance of
2490.84 feet;
T1iD=- traversing the interior of said 582.35 acre tract, the following described
courses and distances to Iron rods set;
(1) S 030 16' 42" E a distance of 172.03 feet;
(2) S 650 02' 25" W a distance of 323.33 feet;
(3) S 100 27' 36" W a distance of 400.32 feet;
(4) S 180 21' 32" E a distance of 548.24 feet;
(5) S 000 00' 00" E a distance of 161.86 feet;
(6) S 450 35' 55" W a distance of 328.92 feet;
(7) S 62° 39' 48" W a distance of 132.83 feet;
(8) S 190 44' 27" W a distance of 48.14 feet to an iron rod set In the northerly
line of Golf Road;
(9) N 700 15' 53" W a distance of 146.91 feet with the north line of Golf Road to
an Iron rod set;
(10) N 190 44' 10" E a distance of 96.35 feet;
(11) N 190 13' 50" W a distance of 227.71 feet;
(12) N 480 14' 23" IV a distance of 187.68 feet;
(13) N 900 00' 00" W a distance of 260.00 feet;
(14) S 810 47' 34" W a distance of 475.50 feet;
(15) S G40 17' 29" IV a distance of 95.14 feet;
(16) S 4G° 47' 24" W a distance of 85.12 feet;
(17) S 280 48' 59" IV a distance of 293.23 feet to an iron rod set In the north
line of Golf Road;
OL 20ba?„cL4 �
TRACT 2 (Continued)
(18) An are distance of 210.00 feet with the north line of said Golf Road, said
north line being a curve to the left having a central angle of 23" 08' 19", a
radius of 520.00 feet. tangents of 106.45 feet. and a chord bearing and distance
of N 770 58' 57" W 208.58 feet. to an Iron rod set;
(19) N 08" 31' 04" W a distance of 103.05 feet;
(20) N 57" 08' 21" W a distance of 191.67 feet;
(21) N 61" 28' 37" W'a distance of 471.77 feet;
(22) N 010 09' 00" E a distance of 224.77 feet;
(23) N 300 05, 17" E a distance of 269.28 feet;
(24) N 09' 10' 59" IN a distance of 626.69 feet;
(25) N 180 49' 17" W a distance of 132.25 feet;
(26) S 750 00' 00" W a distance of 20.00 feet;
(27) N 270 19' 05" W a distance of 115.46 feet;
(28) N 08° 41' 22" E a distance of 117.28 feet;
(29) N 730 36' 11" E a distance of 200.60 feet;
(30) N 250 15' 48" E a distance of 96.35 feet;
(31) N 520 48' 39" E a distance of 177.48 feet;
(32) N 460 31' 54" E a distance of 437.22 feet;
(33) N 520 16' 52" E a distance of 494.26 feet;
(34) N 050 41' 35" IN a distance of 286.74 feet;
(35) N 890 49' 52" E a distance of 228.02 feet;
(36) S 750 38' 46" E a distance of 75.39 feet;
(37) S 610 23' 10" E a distance of 75.22 feet;
(38) S 250 08' 10" E a distance of 79.27 feet;
(39) S 070 51. 10" W a distance of 81.81 feet;
(40) S 540 17' 36" E a distance of 174.08 feet;
(4I) S 19° 39' 22" E a distance of 420.78 feet;
(42) S 54° 28' 33" E a distance of 475.71 feet;
(43) N 360 09' 31" E a distance of 26.21 feet to an Iron rod set In the south line
Of Golf Road;
(44) An arc distance of 210.32 feet with the south line of said Golf Road. said
south line being a curve to the left having a central angle of 22' 1G' 2511, a
radius of 54I.03 feet, tangents of 106.51 feet. and a chord bearing and distance
of S 48" 41' 44" E 209.00 feet. to an Iron rod found at the point of tangency of
said curve;
(45) S 590 49' SG" E R distance of 530.52 feet with the south line of said Golf
Road to the Place of nerinning. containing 118.400 acres of land.
SAVE AND FXCEPT PARCEL 2, described as 'fol lows. to wit:
BEGINNING at an Iron rod set In the Interior of the above described Tract 2, from
which the northeast corner of said 582.35 acre tract described in
Page 812, official Records of William olume 1020.
of 2903.79 feet; on County, bears N 63° 22' 40" VE a distance
THENCE traversing the Interior of said 118.4600 acre Tract 2, the following
described courses and distances to iron rods set;
(1) S 150 56' 43" W.a distance of 135.00 feet;
(2) S 32° 29' 26" W a distance of 154.35 feet;
(3) S 10° 50' 05" W a distance of 425.59 feet;
(4) S 000 47'- 07" E a distance of 221.07 feet;
(5) S 680 36' 00" W a distance of 1177.19 feet;
(6) N 710 50' 18" W a distance of 120.23 feet;
(7) N 490 32' 18" W a distance of 198.82 feet;
(8) N 220 49' 00" W a distance of 90.58 feet;
(9) S 67° 11' 00" W a distance of 152.19 feet;
(10) N 28' 27' 38" W a distance of 48.46 feet;
(11) N 30° 21' 46" E a distance of 310.60 feet;
(12) N 21° 00' 23" W a distance of 772.36 feet;
(13) N 49° 18' 38" E a distance of 676.38 feet;
(14) N 43° 37' 01" E a distance of 556.66 feet;
(15) S 660 18' 34" E a distance of 107.02 feet;
(16) S 170 41' 23" E a distance of 396.44 feet;
(17) S 670 22' 48" E a distance of 825.00 feet to the Place of Beginning,
containing 53.3804 acres of land.
A
COALM. a ASSOCIATES, SURVEyORS
.tti OF T
Stan Coalter, RPS, LSLS
2-21-91
TRACT B
FIELD NOTES
BEING 15.25 acres of land out of the E. W. NiATMVS SURVEY, ABSTRACT NO. 449,
Williamson County, Texas, and being a part of that certain 640 acre tract of
land described as the "First Tract" in a deed to Otto C. Pfluger by deed
recorded in Volume 347 at Page 574, Deed Records of Williamson County, and
being more particularly described by metes and bounds as follows, to wit:
BEGINNING at an iron rod set in an easterly line of that certain 582.35 acre
tract of land described in a deed to The Ben Franklin Corporation recorded in
Volume 1020 at Page 812, Deed Records of Williamson County, from which an iron
rod found at the most northerly northeast corner of said 582.35 acre tract,
(said northerly northeast corner also being the southeast corner of Oak Bluff
Estates, a subdivision of record filed in Cabinet F, Slide 253, Plat Records
of Williamson County), bears N 110 59' 28" E a distance of 241.09 feet;
1HDI CE S 440 23' 26" E a distance of 362.62 feet to an iron rod set;
1704CE S 120 43' 00" W a distance of 1068.00 feet to an iron rod set in the
southerly north line of said 582.35 acre tract, from which an iron rod found
at the most easterly northeast corner of said tract bears S 890 17' E a
distance of 2501.38 feet;
THINCE N 890 17' 00" lY a distance of 740.00 feet with the southerly north line
of said 582.35 acre tract to an iron rod found at an "L" corner in .said line;
THINCE N 090 53' 59" E a distance of 425.73 feet with an easterly line of said
582.35 acre tract to a nail found at an angle point in said line;
111I10E N 480 10' 52" E a distance of 766.87 feet with said easterly line to an
iron rod found at an angle point in said line;
Tffl\-CE N 110 59 ' 28" E a distance of 369.00 .feet with said easterly line of
said 582.35 acre tract to the Place of Beginning, containing 15.25 acres
(664,270 square feet) of land, subject to easements, conditions or
restrictions of record, if any.