HomeMy WebLinkAboutIR 7461 ' INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7461
May 1, 1990
"a4ioAr,� To the Maw and Members of the City Council
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s xry. Subject: AGREEMENT WITH AMERICAN GOLF CORPORATION TO MANAGE
Z. BOAZ GOLF
On February 27 , 1990, the City Council approved amended M&C
C-12195 approving a Management and License Agreement with
American Golf Corporation (AGC) to manage the City's Z. Boaz Golf
Course. The amendment to the M&C stated in part , the
proposed contracts be presented to City Council for review before
they are signed by the City Manager."
Attached please find for your review the Management and License
Agreement with AGC to manage -Z . Boaz Golf Course. Unless there
are questions from the City Council , the agreement will be
executed on May 2 , 1990 . Should you have any questions , please
call Ramon Guajardo at 870-5191.
avid Ivory
City Manager
ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS
STATE OF TEXAS
COUNTY OF TARRANT §
GOLF COURSE MANAGEMENT AND LICENSE AGREEMENT
Z.BOAZ MUNICIPAL GOLF COURSE
PORT WORTH, TEXAS
THIS AGREEMENT is made and entered into by and between the City of
Port Worth (CITY) , a home-rule municipal corporation situated in
Tarrant County, Texas, and American Golf Corporation (CONTRACTOR) ,
a California corporation, both parties acting herein by and through
their duly authorized representatives.
1. GRANT OF LICENSE AND OPERATING RIGHTS
/P (a) City hereby grants to Contractor the license and right
to operate and manage the municipal golf facility known as Z. Boaz
Municipal Golf Course (the Course or the Licensed Premises) in Fort
Worth, Texas, and all improvements thereon (except as excluded
below) , as more fully described in the attached Exhibit "A", which
is incorporated herein. Specifically excluded from this contract
are the following facilities:
- R.D. Evans Recreation Center
- Miniature Golf facility (Putt-Putt) and Recreation Center.
(Approximately 2. 6 acres)
- City maintenance shed located at west side of Course, except as
specifically provided herein.
In addition, it is understood and agreed that the parking area
located adjacent to the Pro Shop and the R.D. Evans Recreation
Center will be utilized by patrons of both facilities.
(b) City further agrees to provide Contractor with the use
of that certain City-owned equipment and personal property listed
in Exhibit "B" attached hereto and incorporated herein. It is
understood and agreed, however, that said equipment and personal
property remains the property of City and is subject to replacement
by Contractor at Contractor's expense. Contractor shall maintain
oppbh said equipment and personal property in good repair, at
Contractor's expense. Contractor shall be entitled to discontinue
use of any City-owned equipment and personal property at any time;
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provided, however, that Contractor will be obligated to return such
equipment and personal property to City upon discontinuance of use
in as good a condition as it was at the time of delivery to
Contractor, normal wear and tear excepted.
(c) Contractor shall operate the Course as a public municipal
golf course open to play by the members of the general public under
the rules and regulations generally applicable to municipal golf
facilities as described in Chapter 2 of the City of Fort Worth Park
S Recreation Department Golf Division Policies and Procedures
Manual . Contractor shall operate the Course solely under the name
of Z. Boas Municipal Golf Course at all times during the term of
this contract .
2. TERM.
This contract shall be for a primary term of eight (8) years,
beginning on May , 2990, and ending on May , 1998. There
shall be two (2) consecutive two (2) year renewal options after the
primary term, which may be exercised only by mutual agreement of
City and Contractor. As used herein, the term "Contract Year"
shall mean a period beginning May of each year and ending on
May of the following year.
3. AGREEMENT CONDITIONED UPON COUNCIL APPROVAL.
This contract is expressly conditioned upon approval by the
City Council of the City of Fort Worth, and shall not be binding
upon the City unless and until so approved.
4. LICENSE FEES TO CITY
(a) Upon execution of this contract, Contractor shall pay
to City the sum of $50,000 as a signing bonus.
(b) Contractor shall pay to City as license fees hereunder
the specified percentages of gross receipts from operations
hereunder (the "percentage license fees") or the guaranteed minimum
amount, whichever is greater, as shown on Exhibit "C" attached
hereto and incorporated herein.
(c) For purposes of calculating the percentage license fees
hereunder, "gross receipts" shall be defined as all money received
by Contractor as a result of the sales of goods or the provision
of services on the Licensed Premises, and in addition all money
received by AM Golf as a result of its operations on the Licensed
Premises purusant to its separate Lease Agreement with City
pertaining to the sale of alcoholic beverages, but shall not
include:
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(1) Cash refunds or credits allowed on returns by customers;
(2) Sales taxes, excise taxes, gross receipts taxes and other
similar taxes now or later imposed upon the sale of food,
beverages, merchandise or services and paid by Contractor to the
appropriate taxing authority, Whether added to or included in the
selling price;
(3) Fees charged for golf lessons and instruction;
(4) The actual uncollectible amount of any check or bank
draft received by Contractor as payment for goods or services and
returned to Contractor from a customer's bank as being
uncollectible (commonly "non-sufficient funds" checks) , but only
after Contractor has made reasonable efforts to collect on the
check or draft;
(5) The actual uncollectible amount of any charge or credit
account (commonly "bad debts") incurred by Contractor for the sale
of merchandise or services; provided, however, that the credit was
extended to the customer by Contractor, and reasonable efforts to
collect said account have been made;
(6) The actual uncollectible amount of any sale of
merchandise or services for which Contractor accepted a credit
card; provided, however, that Contractor has made reasonable
efforts to collect the debt after being notified by the issuing
bank of the invalidity or uncollectibility of the charge;
(7) Interest or other charges paid by customers for the
extension of credit;
(8) Sales or trade-ins of machinery, vehicles, trade fixtures
or personal property used in connection with Contractor's operation
of the Licensed Premises;
(9) The value of any merchandise, supplies or equipment
exchanged or transferred from or to other locations of the business
of Contractor where such exchange or transfer is not made for the
purpose of avoiding a sale which would otherwise be made from or
at the Licensed Premises;
(10) Receipts in the form of refunds from or the value of
merchandise, supplies or equipment returned to shippers, suppliers
or manufacturers;
(11) The amount of any cash or quantity discounts received
from sellers, suppliers or manufacturers;
(12) The amount of any gratuities paid or given by customers
to or for employees of Contractor;
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(13) Receipts from the sales of uniforms or clothing required
to be worn by employees;
(14) Amounts attributed to meals served or provided to
employees of Contractor; and
(15) Receipts from the sale of waste or scrap materials
resulting from Contractor's operations.
(16) Amounts attributable to play by members of the American
Golf Club exercising their membership right to play one round
Without separate payment of green fee; provided, however that City
shall receive five (5) percent of the gross receipts from any
membership sold at the Course; and
(17) The amount of any cash received from operation of an
advance reservation system, but only to the extent necessary to
defray any additional cost which Contractor may incur in order to
offer and operate said advance reservations system provided however
that this subsection shall not be applicable unless Contractor
shall specifically identify such additional cost in writing to City
with the appropriate documentation.
(d) For the purposes of Section 4(c) only, the term
"Contractor" shall include both American Golf Corporation and AM
Golf Corporation.
5. METHOD OF PAYMENT
Contractor shall be required to remit monies due the City on
a monthly basis . Monthly payments shall consist of 1/12th of the
guaranteed annual minimum payment as shown on Exhibit "C" (with
fractional montths prorated) . Payments shall be on a calendar
month basis and payments for each month shall be made on or before
the 10th day of said calendar month (with the exception of the
first fractional month, which shall be paid immediately upon
execution of this contract) . At the end of each Contract Year,
Contractor shall pay to City any additional amount as calculated
on the percentage fee basis shown on Exhibit "C". Such additional
payments shall be made within sixty (60) days after the end of each
Contract Year. In the event any payment is not made as specified
in this contract, a late payment charge of twelve (12) percent per
annum will be charged, calculated from the date payment was
required to be made.
6. CAPITAL IMPROVEMENT PROGRAM AIN
(a) Contractor shall comply with all aspects of the Capital
Improvement Program as set forth in Exhibit "D" attached hereto
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and incorporated herein. Contractor shall coordinate all aspects
of said program with the Park & Recreation Director.
(b) During Contract Years two (2) through eight (8) ,
Contractor agrees to and shall set aside and dedicate five (5)
percent, of gross receipts from green fees at the Course, said sum
to be placed into a separate account dedicated to capital
improvements at the Course (the "CI Account`) . Said sum shall be
paid by the Contractor not later than sixty (60) days following
the end of each Contract Year, The CI Account will be under the
joint custody of City and Contractor. The CI Account will be
interest-bearing and all interest earned shall accrue to and become
part of the CI Account. Contractor shall develop plans for
capital improvements and shall notify City in writing for the need
for such capital improvements to be paid for by funds in the CI
Account. City shall have the final right of approval on all
proposed capital improvements and City's approval shall be
necessary for expenditure of any funds from the CI Account.
Contractor may encumber future CI Account Funds, but only with City
approval .
(c) Should this contract not be renewed at the end of the
eighth (8th) Contract Year, Contractor shall pay to City within
oow sixty (60) days from the end of the Contract Year the five (5)
percent of green fees gross receipts for the eighth contract year,
unless Contractor has already spent funds, with City approval , to
be reimbursed from the CI account.
(d) At the end of the term of this contract, or any renewals
thereof, all unexpended funds and interest in the CI Account shall
become property of the City. Contractor agrees to execute any and
all documents necessary to effectuate transfer of said funds and
interest to the City, and in said regard does hereby appoint the
City Attorney of the City of Fort Worth as its true and lawful
attorney-in-fact to execute on behalf of Contractor any and all
such documents,
(e) In regard to any contract for the construction of
improvements on the licensed premises, Contractor shall require of
its construction contractor adequate performance security by way
of performance and payment bonds, in form and content acceptable
to the City Attorney, said bonds to run in favor of the City of
Fort Worth. Said bonds shall be issued by a licensed surety
company reasonably acceptable to the City.
7. INSURANCE
During the term of this contract, Contractor shall maintain
in full force and effect, at its own cost and expense, the
following minimum insurance coverages.
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(a) Workers compensation - Statutory workers' compensation
insurance with the policy endorsed to provide a waiver of
subrogation as to City, and Employers' Liability Policy of
insurance with coverage of not less than $500,000 per accident.
(b) Commercial General Liability Insurance with no exclusion
in policy, naming the City as additional insured, and meeting the
following requirements:
1. Coverage to be a minimum of $600,000.
2. Annual aggregate limit of not less than
$1,200,000.
3. Liquor liability insurance of not less than
$600,000.
4. Proof of auto liability of not less than standard
coverage.
5. Employer's liability insurance of not less than
$500,000.
6. Garage keeper's insurance of not less than
$50,000 ( for coverage of vehicles in parking
lots. )
(c) Fire and extended coverage. Contractor shall provide and
maintain a standard form policy or policies of fire and extended
coverage insurance on the Licensed Premises, including the
clubhouse and other buildings and structures and all personal
property, furnishings and equipment owned by the City with coverage
limits not less than the full replacement cost. City shall be
named as additional insured. Contractor agrees to maintain
insurance coverage on, or otherwise assume full financial
responsibility for personal property, furnishings and equipment
owned by Contractor.
(d) In fulfilling its obligations under this Section 7 of the
contract, Contractor shall carry insurance or otherwise be
responsible for any deductible stipulated by Contractor's insurance
carrier up to $250,000. All deductibles shall be disclosed to the
City. Contractor may request the City to permit Contractor to
self-insure, where permitted by law, against any hazard up to a
maximum of $250,000, and City may allow such self-insurance if the
City's Risk Manager, in his sole discretion, determines that such
self-insurance is reasonable and prudent.
(e) All policies of insurance required hereunder shall be
obtained from companies authorized to do business in the State of
Texas and which are reasonably satisfactory to the City. Such
policies of insurance shall not be subject to cancellation except
upon at least thirty (30) days written notice to the City.
Contractor shall be required to provide suitable evidence of ,WA
insurance coverage. Such request shall be satisfied by the
submission of either a copy of the policy or policies then in
effect or a certificate of coverage and proof of payment of
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premiums. All policies, where applicable, shall be on an
"occurrence" basis rather than a "claims made" basis.
S. UTILITIES
(a) Contractor shall pay all utility expenses which are or
may be required to operate the Course to the utility providing
same, including, without limitation water, sewer, electricity, gas,
waste disposal , telephone, and cable television service.
Contractor shall pay the standard commercial rate for water.
Contractor shall further be responsible for all necessary
relocation of utilities, permits, connection fees, and all other
normal and customary charges related to the furnishing of utilities
to the Course.
(b) It is understood and agreed that the City of Fort Worth
is the owner and holder of a permit to appropriate State water
(Permit No. 3833) issued by the Texas Water Commission. Said
permit allows the use of certain untreated water for irrigation of
the course, subject to the limitations and conditions of the
permit. The permit expires on December 31, 1991. Contractor shall
be allowed to the extent permitted by law to utilize such untreated
oom` water pursuant to said permit for the irrigation of the course.
All other water required to be used in or about the premises shall
be paid for by Contractor at the standard commercial rate.
Contractor shall be responsible for the keeping and maintenance of
any and all necessary records in connection with the use of any
untreated water pursuant to said permit. City agrees to use
reasonable efforts to secure renewal of said permit and Contractor
agrees to provide assistance in this regard. The City, however,
cannot guarantee renewal of this permit.
(c) For the purposes of the following provisions relating to
water usage, the following definitions shall apply:
"Irrigation Water" shall be defined as that water which
Contractor acquires from the Fort Worth Municipal Water Department
(the "Water Department"') for the specific purpose of golf course
irrigation and maintenance.
"Initial Base Price" for the purchase of Irrigation Water is
that price which was charged by the Water Department to municipal
golf course operators as of June 1, 1989.
"Base Volume" for Irrigation Water usage at the Course shall
be four million (4,000,000) cubic feet per contract year.
The "Ceiling Cost" of Irrigation Water shall be forty-eight
O' thousand dollars (548,000) in any given Contract Year, so long as
the total amount of Irrigation Water used by Contractor does not
exceed the Base Volume. The Ceiling Cost is subject to upward
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adjustment for any given Contract Year in the event that
Contractor's use of Irrigation water in any given Contract year
exceeds the Base Volume according to the following formula: the
multiplier shall be the number of cubic feet over the Base Volume,
which shall be multiplied by a multiplicand of .012 dollars (1.20)
per cubic foot, and the product shall be added to $48,000.00.
For the purposes of this Section 8(c) , "Contract Term" refers
to a total period of not greater than 12 years, that being the
length of the Primary Term and all possible Renewal Terms.
For the purposes of this paragraph, "greens fees" shall be the
benchmark green fee rate at date of execution of this contract i.e.
ten dollars ($10.00) .
Should the amount to be charged to Contractor for Irrigation
Water exceed the Ceiling Cost in any Contract Year, Contractor
shall be entitled to credit every dollar over the Ceiling Cost
against its obligation for the payment of percentage license fees
as provided in Exhibit "C", and should Contractor have no
obligation in a given Contract Year for the payment of percentage
lcense fees above the guaranteed minimum, then Contractor shall be
entitled to a credit against its obligation for payment into the
CI Account as provided for in Section 6 of this Contract; provided,
however, that the foregoing provision shall not apply in the event
that the percentage increase in greens fees approved by the City
during the Contract Term is equal to or greater than the percentage
increase in the Initial Base Price.
9. FEES SET BY COUNCIL
All fees shall be set in accordance with City Council policy
(including green fees, cart rental fees, tournament fees) except
food and beverage charges. Provided, however, that such fees shall
not be less than that charged at other municipal golf courses
operated by the City, absent Contractor's consent. Contractor
shall have the right, from time to time, to seek increases in fees
charged at the Licensed Premises, provided that all fees, except
food and beverage charges, must be set and approved by City. No
additional fees may be established by Contractor without city
approval .
10. TAXES
Contractor shall be responsible for all taxes associated with
the Course and its operations thereon, including without limitation
any ad valorem, possessory interest, income, excise, sales, use,
or other taxes and any and all permits, licenses, and fees 1
associated with the Course and its operations.
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11. MAINTENANCE; ALTERATIONS TO PREMISES
(a) Contractor shall keep and maintain the Course and all
improvements thereon in a good state of repair, at Contractor's
expense, in accordance with the standards as set forth in Exhibit
"E", attached hereto and incorporated herein. It is understood
and agreed that the standard of maintenance of the Course shall at
all times be in accordance with Exhibit "E" and equal to or better
than the standard used at golf courses operated by City.
(b) Contractor shall not make or cause to be made any
alterations, additions or improvements to the Course or Course
facilities without the prior written consent of the City's Park
& Recreation Director. Contractor shall present to the Park &
Recreation Director plans and specifications for such improvements
at the time such approval is sought.
(c) All alterations, additions and improvements made by
Contractor with City's consent, shall become the property of the
City upon this Contract's termination. At City's option,
Contractor may be required to remove any or all of such
improvements at Contractor's expense which were made without City's
consent or which may be removed without substantial damage to
City's property. Fixed improvements made with City's consent shall
not be required to be removed. Contractor shall repair any damage
occasioned by any required removal .
(d) During the first two (2) Contract Years, Contractor may
utilize such portions of the City's maintenance yard located west
of the Course as may be designated by the City. Provided, however,
that after the end of the second (2nd) Contract Year, Contractor
shall no longer utilize such maintenance yard but shall use the
maintenance facility on Lackland Boulevard and any other such
facilities which are constructed or improved at Contractor's
expense.
(e) City may, from time to time, designate certain trees or
other vegetation located on the Course which may not be pruned,
trimmed or cut without approval by the City Forester.
12. SALE OF ALCOHOLIC BEVERAGES
(a) Contractor shall fully comply with all laws, rules, and
regulations related to the sale of beer and shall be responsible
for securing all necessary permits and licenses therefor.
(b) Sales of alcoholic beverages other than beer shall be
Op- permitted only with the express approval of the City Council . To
the extent that applicable law requires that alcoholic beverage
sales be made by an entity other than Contractor, this Agreement
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may be amended to provide for same, provided that the amounts of
percentage license fees to the City remains the same and the City's
insurance protection from liability related to the sale and/or
consumption of alcoholic beverages is not impaired thereby.
13. SALES AND RENTAL LIMITATIONS
Contractor shall have the exclusive right to sell or rent
golf-related equipment at the Course. Contractor shall have the
exclusive right to all food and drink concessions, and rental of
electric and pull-type carts. No privately-owned golf carts are
allowed on the Course, except in accordance with City policy.
14. HOURS AND DAYS OF OPERATION
The operating period shall be daily, daylight to dusk, seven
days a week, 365 days a year. The Contractor shall have reasonable
discretion regarding temporary closure of the Course due to weather
or other causes which make the Course unfit for play.
15. FORCE MAJEURE
Neither City nor Contractor shall be deemed in breach of this
Agreement if it is prevented from performance by Acts of God, acts
of a public enemy, acts of superior governmental authority, strikes
or labor disputes, flood, riots, rebellion, sabotage, or any
similar circumstance not within the reasonable control of the
party; provided, however, that no weather or weather-related
circumstance shall relieve Contractor from its obligation to pay
the guaranteed minimum license fees hereunder.
16. CONTRACTOR TO HONOR CITY GOLF PASSES; HIGH SCHOOL AND COLLEGE
ROTATIONAL PLAY, PREVIOUSLY BOOKED TOURNAMENTS, GOLF SCORECARDS.
(a) Contractor agrees to honor all city-issued golf passes
for play at the Course in accordance with standard City Park and
Recreation policy regarding same; provided, however that the number
of rounds played under any complimentary golf passes issued by City
shall not exceed seventy (70) per Contract Year, with rounds above
said limitation to be reimbursed to Contractor at 80% of the
applicable green fee rate. Contractor shall be entitled to receive
a portion of the income from the sale of city golf passes based
upon the percentage of the total number of golf rounds played under
such passes which are played at Z. Boaz . Any amount owed to
Contractor shall be determined at the end of each Contract Year and
shall take the form of a credit against additional license fees "'t
owed City. In the event no such additional fees are owed, City
shall pay to Contractor such portion of income.
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000,
(b) Contractor agrees to allow the Course to be used for high
school and college golf team rotational play in accordance with
standard City Park and Recreation Department policy.
W Contractor agrees to honor all previously-booked
tournaments scheduled by City.
(d) Contractor understands and agrees that City has an
existing agreement with a supplier of golf score cards for the
Course which obligates use of such supplied score cards for one
year from the date such score cards are delivered, and Contractor
agrees to use and distribute said score cards in normal fashion
upon receipt, in accordance with said agreement.
17. RECORDS AND AUDITS
(a) Contractor shall keep full , complete and proper books,
records and accounts of the gross receipts, both for cash and on
credit, of each separate department, concession, division, and
subsidiary activity at any time operated on the Course and shall
report same monthly to City. Said books, records and accounts,
including any sales tax reports that Contractor may be required to
furnish to any government or governmental agency, shall at all
reasonable times be available for inspection by the City and its
authorized representatives and agents. Contractor agrees to
maintain its financial records pertaining to the operation of the
licensed premises for a period of two (2) years after the
conclusion of any Contract Year.
(b) Not later than sixty (60) days following the end of the
Contract Year, Contractor shall provide a statement of gross
receipts for the Licensed Premises for the previous Contract Year,
certified as accurate by the chief financial officer or other
corporate officer of Contractor.
(c) Contractor shall allow any authorized representative of
the City, upon reasonable notice, to examine and review audited
financial statements related to Contractor. City may not , however,
require production of such financial statements to the City
pursuant to this contract, as opposed to review and examination,
unless City can assure confidentiality of such statements.
Provided, however, that this section shall not operate to prevent
City from obtaining any and all records available to it through
discovery procedures in the event of litigation arising in
connection with this contract .
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18. NON-DISCRIMINATION/EQUAL OPPORTUNITY
Contractor shall not discriminate on the basis of race, color,
creed, religion, sex, age, military status, handicapped status, or
national origin in the performance of this contract. Contractor
shall be subject to the City's affirmative action policy to the
extent that such policy pertains to golf course operations.
Contractor shall also be subject to the Disadvantaged Business
Enterprise {DBE} policy of the City of Fort Worth, including any
amendments thereto, and shall require compliance with said DBE
policy by any contractor performing any capital improvements
hereunder.
19. ASSIGNMENT
Contractor shall not assign, in whole or in part, any portion
of this contract without the prior written approval of the City.
20. INDEPENDENT CONTRACTOR
In all of its operations hereunder, Contractor and its
employees, agents, and contractors shall operate as independent
contractors and not as agents, servants, or employees of the City.
Subject to the terms of this contract, Contractor shall have the
right to control the details of performance hereunder, and nothing
herein shall be construed as creating a partnership or joint
enterprise as between Contractor and City, and the doctrine of
respondeat superior shall not apply.
21. INDEMNITY
Contractor shall indemnify, hold harmless and defend City,
and City's officers, agents and employees from and against any and
all claims, lawsuits, losses, or damages (including court costs and
attorney's fees) arising out of any act or omission in the
performance of this contract, whether or not arising from the
negligence of the City, its officers, agents and employees, except
where caused by the sole negligence or willful misconduct of the
City, its officers, agents, and/or employees .
22. SIGNS
Contractor shall not place any advertising sign or other
advertisements upon the Course, any other public property, or upon
any vehicle used by Contractor or its customers in the performance
of this contract without the prior written approval of the Park &
Recreation Director .
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23. HIRING OF DISPLACED EMPLOYEES, QUALIFICATIONS OF MANAGER
AND SUPERINTENDENT
(a) Contractor shall hire all qualified Fort Worth employees
presently employed at the Course, or as otherwise reasonably
designated by the City, to like positions with the Contractor
(with the exception of the Manager and Superintendent positions)
under Contractor's normal new employee policy (it being understood
that all new employees of Contractor are subject to drug screening
and a 90 day probation period) . For purpose of employee benefits,
and where permitted by law, time in service with the City of Fort
Worth shall be accepted by Contractor as equivalent to time in
service with Contractor.
(b) The Manager shall be a PGA "Class A" golf professional .
The Superintendent shall be a "Class A" GCSAA superintendent.
Provided, however, that Contractor may initially fill such
positions with persons who do not have such designations but are
diligently working toward same as long as such designations are
secured within a reasonable time.
" 24. WARRANTIES EXCLUDED, COVENANT OF CODE COMPLIANCE, CONTRACTOR
TO COMPLY WITH ALL LAWS.
(a) Contractor hereby represents that it has inspected the
Course and the improvements thereon, that it finds same suitable
for all activities and operations agreed to or contemplated
hereunder, and that it takes the Course and all improvements
thereon in an "as is" condition. Except as provided below, City
hereby excludes any and all warranties in regard to the Course,
including without limitation, any warranty of title, or fitness for
any particular purpose.
{b} City agrees and covenants that at the time of execution
of this contract, the licensed premises are in full and complete
compliance with all applicable governmental codes, ordinances and
regulations, including without limitation, building, plumbing,
electrical , heating, ventilating and air conditioning, fire, health
and safety and zoning codes, and environmental laws. To the extent
it is determined following execution of this contract that the
licensed premises were, in fact, not in compliance with any
applicable code, ordinance or regulation at the time of execution
of this contract, City shall take the necessary action to correct
such non-compliance. In the event City fails to correct the non-
compliance, Contractor agrees it shall take all necessary steps to
bring the licensed premises into full compliance with such codes,
ordinance or regulation, and all costs incurred by Contractor in
effecting such compliance shall be treated as a credit toward
Contractor's license fee obligations above. Contractor agrees to
seek inspection by all appropriate agencies empowered to enforce
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applicable codes within ninety (90) days of the execution of this
contract and results of any such inspections so conducted shall be
binding on both parties for purpose of determining which defects
shall be regarded as pre-existing and therefore subject to the
license fee . Contractor will not thereafter be entitled to any
credits, for code compliance repairs unless a defect is determined
to be a hidden and pre-existing problem at the time of execution
of this contract.
(c) Contractor shall comply with all federal , state and local
laws, regulations, and ordinances related to any of its operations
on the premises. In the event of any non-compliance, Contractor
shall immediately correct same at its own cost and expense, except
as otherwise specifically provided herein.
25. BREACH, TERMINATION AND REMEDIES
(a) Condition of Default. The following conditions will
constitute a breach of this lease and a default hereunder:
1. Failure of Contractor to pay license fees, perform
capital improvements, or to fulfill any other monetary obligation
of Contractor to City, which failure is not cured within thirty
(30) days.
2. Failure of either party to perform any of its other
nonmonetary obligations under this Contract when due or called for,
and the party in default fails to cure such nonmonetary default
within sixty (60) days after written notice from the nondefaulting
party of such nonmonetary default; provided, however, that if the
nature of the nonmonetary default is such that it cannot be fully
cured within said sixty (60) day cure period, the party in default
shall have additional time as is reasonably necessary to cure the
default, so long as the party in default is proceeding diligently
to complete the necessary cure after service of notice by the
nondefaulting party.
3. Creation of any lien or purported lien on the
Licensed Premises which is not extinguished within time period set
for in Section 26.
(b) Termination; Remedies. If any of the conditions
identified in Section (a) , above, should occur and the party in
default does not cure the default, the nondefaulting party may
elect to terminate this contract immediately and seek all other
remedies provided under law and equity. The right to terminate
this contract pursuant to this section shall be cumulative of any
other remedies available to the City or Contractor at law or in •�
equity for a breach of this Contract. All such remedies may be
exercised concurrently and whenever and as often as the need
therefore arises. Waiver of any breach does not constitute any
14
continuing waiver or a waiver of any subsequent breach of this
contract.
26. NO LIENS ON PUBLIC PROPERTY
Contractor shall take no action which may result in a lien
being placed upon the Course or other public property, and in the
event any such purported lien shall be created or attempted to be
created, Contractor shall take any and all steps to extinguish said
lien within ten (10) days of its creation.
27. APPLICABLE LAW; VENUE
(a) This Contract shall be construed in accordance with and
governed by the laws of the State of Texas.
(b) venue for any suit, at law or in equity, shall lie
exclusively in Tarrant County, Texas.
28. NOTICES
All notices, demands, requests or replies provided for or
permitted this contract shall be in writing and may be delivered
by any one of the following methods:
1. By personal delivery with receipt acknowledged in writing;
2. By deposit with United States postal service as certified
or registered mail , return receipt requested, postage prepaid to
the addresses stated below;
3. By prepaid telegram; or
4. By deposit with an overnight express delivery service with
receipt acknowledged in writing. Notice deposited with the United
States postal service in the manner described above shall be deemed
effective three business days after deposit with the postal
service. Notice by telegram or overnight express delivery service
shall be deemed effective one business day after transmission to
the telegraph company or after deposit with the express delivery
service. Notice by personal delivery shall be deemed effective at
the time of personal delivery. Notice may also be given by means
of electronic facsimile transmission ("fax") ; provided however that
in order for a fax notice to be deemed effective, the party giving
notice by fax shall provide a hard copy of the faxed notice
thereafter to the other party pursuant to one of the four methods
of hard copy delivery specified in this section. For purposes of
notice demand, request reply or payment the address shall be
15
City:
City of Fort Worth
Attention: Park & Recreation Director
1000 Throckmorton Street
Fort Worth, Texas 96102
With copy to : City Attorney at same address
Contractor:
American Golf Corporation
1633 26th Street
Santa Monica, California 90404-4024
Attention: Legal Department
Each party shall have the right to designate a different address
within the United States of America by the giving of notice in
conformity with this article.
29. PERFORMANCE SECURITY; EVIDENCE OF FINANCIAL STABILITY
Contractor shall at the start of each contract year submit to
the City satisfactory documentation from it and/or its banks or
other lenders that it has the cash, cash equivalents, and/or a line
of credit available for use at the Licensed Premises to fund and
finance the capital improvements to be made to the Course during
said contract year.
EXECUTED on this the day of ,
19—.
CITY OF FORT-WORTH
BY:
Ramon Guajardo
Asst. City Manager
AMERICAN GOLF CORPORATION
BY:
TITLE•
16
EXHIBIT "B"
EQUIPMENT PROPERTY LISTING FOR Z BOAZ GOLF COURSE
JOIPMENT NUMBER DESCRIPTION HISTORIQL_ CDST ACO.DATE
E619001200 Greensmower Self Prop. 3-G 7,110.00 84-10
E609001200 Park Grounds Maintenance 12,563.00 79-09
E207001400 Pickup-Flat Bed 3,476.00 72-10
E102000600 Turf Trickster-Three Wheel 11,419.00 82-08
E837001100 Fairway Gang Mower 7,222.00 79-08
E203017000 1986 Chevy Pick-up 8,321.00 86-09
E602004000 Tractor-Mower Self Propelled 7,240.00 86-07
0000003900 Aerifier Ryan, Green 1,877.00 73-08
E102000900 Trickster, Three Wheel 6,156.00 85-09
601011300 Tractor-Diesel 9,112.00 86-07
2602003500 Groundsmater-72" Rotary 7,594.00 85-09
E837002700 7 Gang Mower 11,280.00 85-10
0000004000 Aerifier Fairway Dedoes 1,574.00 77-03
E819000800 Sand Trap Rake 5,160.00 85-09
E102001300 Scooter-3 Wheel Turf 6,289.00 86-07
E211007800 1986 Chev Pickup 6,692.00 86-10
0000014100 18" Sod Cutter 1,510.00 85-09
In addition, Contractor shall have use of the cart fleet consisting of 52 carts at Z.
Boaz, for a period of up to sixty days after execution of this Contract. Contractor shall
return said carts in as good a condition as existed when Contractor took possession,
reasonable wear and tear excepted. Contractor shall pay City at the rate of $65 per month
per cart for its use of said carts, prorated for fractional months.
1
EXHIBIT "C"
Z. BOAZ
Contractor shall pay the following percentages of gross
receipts as license fees under this agreement:
Green Fees 20%
Golf Cart rentals 20%
Tournament fees 20%
Misc. pro shop sales 5%
Golf accessories 5%
Food & Beverage 5%
American Golf Club
memberships (sold at
Z. Boaz) 5%
Provided, however, that City shall not be paid less than the
following guaranteed minimum amounts for the respective Contract
Years:
Contract
Year Guaranteed Minimum
1 $ 150,000
2 $ 150,000
3 $ 175,000
4 $ 175,000
5 $ 200,000
6 $ 200,000
7 $ 200,000
8 $ 200 ,000
For Contract Years 2 through 8, Contractor shall , in addition,
pay 5% of green fee gross receipts into a separate capital
improvement trust fund in accordance with the provisions of this
Contract.
It is understood and agreed that the amount of the guaranteed
minimum license fees to be paid by Contractor hereunder shall be
reduced by the amount actually paid to City by AM Golf as rentals
under the separate lease agreement related to beverage sales .
EXHIBIT "D"
Z. BOAZ
CAPITAL IMPROVEMENTS
Contractor shall implement a Capital Improvement Program during the
primary term of the Contract which shall encompass the following items:
Contract Years CaRital Improvements Amount
Year 162 Cart paths green to tee 85,000
Year 1 Re-fixture and carpet pro shop $ 12 ,000
Year 1 Snack bar seating expansion (700 sq.ft. ) $ 42,000
Year 1 Snack bar cabinets, counters, equipment
building remodel $ 16,800
Year 1 Electrical service at
cart barn to charge golf carts $ 15,000
r 1 Sodding of high play areas near greens $ 5,000
r 1 Course amenities (ball washers and
water stations) $ 5,000
Year 1 Cart storage for 24 cars $ 26,000
Year 2 Reactivate old maintenance yard $ 30,000
Total Capital Improvements $236,800
In addition, Contractor shall set aside and dedicate five (5) percent
of green fees gross receipts during contract years 2 through 8 for capital
improvements to the Course in accordance with the Contract.
It is understood and agreed that the above-referenced amounts are the
minimum amounts that may be expended by Contractor. The City and Contractor
may agree to revise the above plan and the amounts spent for individual
items, provided that the total amount spent for improvements is not less than
the amount specified above.
City and Contractor agree in advance that Contractor may utilize up to
$16,000 of the funds in the CI Account for the purpose of providing for cart
storage and reactivation of the old maintenance yard.
It is understood and agreed that although Contractor is committed to
expending no less than $220,800 (plus $16,000 from the CI Account, if
necessary, for cart storage and the old maintenance yard, for a total of
$000*6,800) for capital improvements, the amounts listed above for particular
.*
capital improvement projects are estimated amounts only. In the event that
the cost of any particular capital improvement project exceeds the minimum
listed above, the City in its reasonable discretion may allow use of funds
in the CI Account to reimburse or pay for said excess amount, provided good
cause exists and appropriate documentation of the reasons for such overrun
is provided by Contractor. Provided further, that should the cost for any
particular capital improvement project be less than the amount listed above,
Contractor shall utilize the amount of the underrun for some other capital
improvement project approved by the City in accordance with this contract.
•1fa"s
MIBIT "E"
., 1INIMUX MA22:TANCE SPECIr=CATIONS
1. Greens. practise putting greens & ,nurser es
A. Mowing - At least five days per week at a height
between 3/16" - 5116" during the growing season; as
needed during the off season.
B. Change cup locations on all greens and practice
putting greens daily during the active season and at
-least three times weekly in the off-season. Cup
location will be moved at least twenty feet from the
previous placement.
C. Repair ball marks, divots, or any other damaged turf
areas on all greens and practice greens daily.
D. Aerify all greens, practice putting greens and
nurseries at least three times per year during the
growing season. Aerify problem areas as often, as
necessary to produce superior turf quality.
E. Topdress all greens, practice putting greens and
nurseries;
,..w A. After any aerification performed with 1/2" or
larger tines;
B. As needed to maintain a smooth putting surface.
C. Topdressing will be sand or a mix similar to that
used to construct the greens.
F. Light vertical mowing of all greens, practice
putting greens and nurseries shall be performed
as appropriate to smooth and true the putting
surfaces. Heavy dethatching shall be performed only
prior to any winter overseeding.
Note; Where bermudagrass greens are maintained,
they shall be overseeded annually, approximately 2
to 3 weeks before the first annual frost, using
perennial rye or a blend of perennial rye, Poa
trivialis and/or fine fescues - at a rate between
20 and 30 lbs. per 1, 000 square feet.
The putting surface shall be prepared for
overseeding by aerifying not later than 30 days
prior to overseeding and verticutting weekly
starting three to four weeks prior.
overseeding shall be topdressed 1/8" with material
1
similar to green construction material or an .
approved sand/organic mixture. A complete ••t
fertilizer shall be applied immediately prior to
seeding. Greens shall be irrigated sufficient to
remain moist but not soaked until all seed has
germinated.
During germination period, cup shall be changed
frequently. First mowing shall be at 6/16"
reducing to normal cutting heights gradually.
A preventive program of fungicide applications
shall be maintained starting two days after
overseeding.
G. Spiking of all greens and practica greens shall be
performed as needed between aerific:ations to
maintain water infiltration.
H. Fertiliz-at.ir4n - All greens, practice greens, and
nurseries shall be fertilized with nitrogen,
phosphorous, potash, and other elements as needed
to maintain co�,�,r; growth, health and turgidity of
the turf, without g,31crwing excessive or succulent
The goal of the greens fertilization program is to ..
provide the best possible putting surface, not to
produce the maximum arenunt of growth
S. Fungicides - All greens, practice greens and'
nurseries Pball receive appropriate fungicide
applicat.i ins to prk itent and/car control fungal
disease activity.
J. Weed Control - All greens, practice greens and
nurseries shall be maintained free of undesirable
grasses and %reeds. Frey-era gept herbicides shall
be used as necessany to prslrent- nt:Lus.i.on into the
greens of weeds difficult to eradicate Inch as
goosegrass, crabgrass, etc.
L. lnseeLicides - All greens, practice greens and
nuxji�ei:les shall be treated as necessary to prevent
or halt insect damage.
2
J
2. Tees All areas used for tee surface
A. Mowing - All tees shall be mowed at a height
between 3/8" - 5/8" three times per week during
growing season and as necessary during off-season.
B. Topdressing - All worn areas on tees shall be
topdressed at least weekly to fill divots and level
tee surface. Topdressing material shall contain
seed of annual or perennial ryegrasses, or other
species as appropriate.
C. Overseeding - All tees shall be overseeded at a
rate of not less than 10 lbs./1, 000 square feet,
approximately two to three weeks before the first
annual frost. Seed used shall. be a suitable
species or blend.
D. Set-up - Tee markers and all tee equipment shall be
moved daily for proper play and control of turf
wear.
E. Weed Control - Tees shall be kept weed free to an
extent of at least 90% 'of the area by the proper
and t' ely 'application of pre- and/or post-emergent
herbic .
-' F. vertical Mowing - All. tees shall be verticut
as necessary to control mat or thatch build-
up.
G. Aerification - All tees shall be aerified- at least
every two months from March through October and as
necessary during the remainder of tht year.
H. Fertilization - All tees shall be fertilized with
nitrogen, phosphorous, potash, and other elements
as needed to maintain color, - growth, health and
turgidity o€:;the turf, without allowing excessive
or succulent growth.
3. Fairways - All areas of Play except greens, tees, roughs
and natural growth areas
A. Mowing - All fairways shall be mowed at least three
times per week at a height between 1/2" - 7/8"
during the growing season and as needed for the
balance of the year. Contour mowing as specified
,. by the architect in the original plans shall be
3
I
maintained.
B. Aerification - All fairways shall be aerified a
minimum of three times per year during the growing
season. .Aerif ica•tion holes shal i not exceed a
spacing of eight inches on c•iii zr or tae of a
diameter-of less then 1/21".
C. Fertilization G-' A-11 f€clrvays shall be Zertili.zed
with nitrogen, phosphorc_%s, putasho or vI;-hc-i:°
elements'as Aeeded to maintain cn?.,or, Tz;rsth,
health and turgidity of the �'t2."!',, without: allowing
excessiVe or.' su-culent grov,-Jan
D. Vertical cowing -.Ail fafrz aye. shall a �e�ticut
as. necessary:to cortrol_ Loaf; or th;%tch bull ld-
up. "
E. Weed Control - Fairways shall -be !+ ±�e� #re+a to
an extent of at least'*94%- of the- area°.by- the proper
and timely application of pre- and/or host•-Emergent
herbicides.
4 'Roughs
-All turfed areas of play ekc;apt greens, uses, fairways
and nat,.ral growth areas.
A. Mowing - "I'll roughs ''shall be -mc,.wed weakly during
the growing season and as necessany curing the
balahha cif th:e year, at heights betwee'h 3/4" and
1-1/2". _RpugU....)ieignt shall not earned 2" without
the direct ►p ro r l of the .reg,*onal supt:rintendent,
and rough mow ng'khail- i t be_;suspend pd for any
tournament without such approval.
B. Aerification, -
1) Fairway-to-tree-line Malay_areas' 111 be
.aerified, at least two trees per year.
2) Within 'wooded play areas~--.4±as necessary to
establish and/or-maintain tvit.•
r
C. Fertilization - Roughs shall :�c fertij"kzed as
necessa.xy to maintain turf.'
D. Weed Control - Shall be performed as .necessary to
prevent seed formation and to allow prdper play.
k
5. Natural Grawth eas
�
All areas in which native or introduced vegetation is
allowed to survive without routine mowing, cultivating,
irrigation or other routine maintenance procedures. May
be out of play areas, steep slopes, barriers,
windbreaks, nature trails, etc. Such areas are to be
maintained free of excessive trash, noxious weeds and
vertebrate pestw,' and in' such manner as to comply fully- ,
with fire department regulations or other such +
regulations as may apply.. Such natural growth areas may
be improved and' may from time to time be subjected to
irrigation, cultivation,' piuriing,* or other "such
practices as mad► be necessary or desirable to establish ;
or maintain them... -They ;may not be either created or
converted to: x(r re inMten' ively managed. landscape types .
without the direct approval of the regonal" z'
superintendent.
6. ]!lAn-.tens - Al l�a eeaag_2 ,ted with ornamental DlAats, n2t
intended for golf ,play and having a ftfinal2le boXder
A. Clean-up - All planters -shall be,maintained free of
trash and:- debris.
B. Weed Control - AJLI :'planters .shall, be ,maintained
free of weeds by�pechan cal and/or chemical means
C. Trimming - The pl4nt material (trees, shrubbery ands. ._
ground covers) in i planters .shall be tiiAmed-�fior
protection from wind insect
appearance.
� - ; ,•� �
7. Trees All-t es gLt4in the property Iiiieg of the crolf
co
Urse
A. Stakes - Trees. shall be r '
staked as necetia�`Intil
of sufficient Me to stand unassi.stte& Stakes - T
shall be installed $lid,"ma3,ntain,6 .stn the' manner
recommended by r t�te University of California: : -
Stakes shall kiW1:imdved as soon as possible.
B. Pruning --- All trees shall be properly prundd for
protection from wind and pests as well as for
appearance and -dafety.
C. Irrigation - All trees shall be irrigated to
provide adequate moisture for normal growth.
D. Mowing.,-- Large area mowers shall not be used within
5
one foot of the trunk of any tree.
;;- Removal and Repla�:emeni:l.- .jal -dead trees, for ""
whatever caUseg -shall. be,,removed. Replacement
r shall be with a tree of appropriate type and size.
All + 9g p.E.ent requirsd.,to irrigate all
fleas of the nrooerty.
A. Repair or replace all heads, valves, controllers,
wiring, and pipe as needed to maintain the proper
operation of the entire golf course irrigation
_(_including greens, tees, "ffairways, planters,
-sw SkfC rl ads, •'etc.}~ on an Qn-goir Pasis.
VZZ OTC rc, cr:�, '� o atr'se} shall- .irriga' :� , necessary to
_ :tj st4ppor`t COer"growth,:,*f` golf t�uri and associated
l&ndscapirig:'
. h
9. Fences All fences and walls. bl
=7 = - a .wirj. qt, pD o withi j2gMhd6?Us of ;
.A i ae—Repair all b)Tgken or damaged fencing as necessary.
_
B. humidiaTe` replace asa r essary all
fences; gates and locking devices needed for""the
protection of the golf course or equipment.
=1D ' All _s_tru_cturAg within the
A. Courseterd3ms ; :All Dcourse, restrooms shall be
maintained daily to provide Clean and sanitary
facilities for the users and employees of the
course. Soap, towels, .toiapt paper, etc. shall be
j;;4de.d in adequate quantity- at -aal:l times.
blee-cfa`��.4.4 i sha], .:,be-,maintained similarly.
�c ;,.,dillizildings arid, -structur
vp ahal be maintained in
good' repair at 421. times .:jgja rounding areas shall
be maintained free cf weeds4sbrush7, disorganized
junk or broken-down equipment, trash piles, etc.
Interior areas shall be clean and neatly organized,
safe and sanitary for;:�ustomerc and employees.
_- _-_Pa izing, rodent and insect cdntrol, and
.andscapig shall be perforstec as ..necessary.
#' Hoiisekeepzrrg"-dutfes shall_:Jseassigned to all
maintenance crew members., andT;s� all be performed
daily. ..
6
sell. r
wr,R
C. dirt Paths - Maintain all cart paths in a smooth
and cleanr:cgtiditio�-and repair promptly as needed.
D. fti golf- course.- superintendent is responsible for
all facilities and• structures-- maiix# ance not
vithin the clubhcuse' area properio:= .
All Widewalks, *patios and� orcte.°.d'art paths must be
ke t edged. ar—ounr�" ve -#owes, meter boxes,
a `cw` Ce s x; gtc.._sh be dome as needed to
.. e ;Er�ing(
tis'"anc►,3t 4a jkf,6jiTof play or
aintenance' from growth end tte�t+ item
m s.
:.r.
All sand ^traps shallvbe~ edgedy as � ry to maintain
an appropriate. lip, raked daily and-LuM -fed with fresh
sitiid as needed. tp maintain-a minimum 1 1/211 depth on
slopes and 4" in the bottom:- 'Replacement sand will be
W a dust--..Twee tom. ri u�i.%able �Cor trap use.
13. Landscaped areas
e _variaus land , re4.s roughout the course shall
be cultivat LV e e c °dam ik�=dt'f ,t�egu .3�r
:1c
basis, with at eas ams for annuals
7009cheduled=.each:."year,,.,,4 p#Angaon the length of the
seasoh- 3�Var°.Ti4r tT.La''t'�
lot
)ail
IthalVTbid cbl, ted;:. tai; *nd,' repq;4d from the property
as necessary to ensure minimal `pi�dblems from refuse
r
ad odorifl,, cts: eta.' Approved_ trash receptacles shall
Pal
'be• M*niently` stationed-:on' tees°'And other appropriate -
°b �areargVl add emptied. daily..
nest gontxrol'
`9osrShalksbe� routinel a�f6iXi irc a haut the
sn7 Y.:P r g property on
ail'oiidgoing.basis. _ in.-s. r`h`a'n#A iiOr that vertebrate pest
po drat ons.aar'e ,ateadily.:,redu66d and eventually
eliminated.
7
All iak ,-pands
=4 s#xaa �shams . .«iaiifned in aa:
sa f e=and -gaait ta.y'I.-x*T xar-*Ad- aahlppraararaaice.
Analys s t it �l•y. an"'itr awed
c4i
gra .C i1 ¢+a F sn *&UU 4 h ".S"Oval `cad aaai"A
traps, a titi6n or � aa1 ► za=
. i .as y%. 'ix gl+er, �,..air t4 .ffia d3.f is m- o 4 -
; :- � 1 or' the !@�.tic2tCS�gs;: al -:
tM APW :r ;egg "1 -6f tjzty vice
or_ h `s . eri' epresentati re.
aaat ..eta 1. .`jhairnter*nce
+mew as has: .3." t.Ca .� � at t terse:logy supery a by- ...
aaaY anu two' artc� f
be
e r Iis .=and is a Mm.superL7x ant'!.aw� I itr.;e ."
sh.tlx anciaaally:ba the ate . of his 6rerw.
. NOS'•:' ;�`'��:`,a .5� �.IC33�'$. 'l��lR . � �AGTICES.:
OPI ANY GOLF
00. "icei`: E POISIBILIT`Y
C?F' THE ` COURSIt' ' UP E DENT FOR .�
"W)UZOANCE or THE PInOPERTY.
p Aft,r
O