HomeMy WebLinkAboutItem 03 Management Agreement with SSS Down To Earth OPCO
City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
STAFF REPORT
Meeting Date: April 15, 2025
Item #: 3
Contact Name: Dan Abdo, Michael Rumer Department Director: Michael Rumer
Contact Number: Ext. 5101, Ext. 6434 City Manager: Craig Shadrix
Subject: Approval of a Management Agreement with SSS Down To Earth OPCO LLC, for
Interim Operator of Forest Lake Golf Course. (Assistant City Manager Rumer)
Background Summary: On April 1, 2025, the City Commission selected SSS Down To Earth OPCO LLC
(DTE), to take over the Forest Lake Golf Course Interim operations. DTE was selected from three (3) qualified
local vendors to take over the Golf Course's interim operations from May 1, 2025, to November 3, 2025. This
interim management plan implements an interim operator that is tasked with creating a first-class maintenance
program for the Golf Club, which will result in optimum agronomic, turf and playing conditions on a year-round
basis, taking into consideration an Operating Plan approved by the City.
Additional items of interest are:
• Restaurant / Food and Beverage Operations. Manager shall perform all the food and beverage
operations at the Golf Club, including banquet/catering services.
• Resident Rate. Manager shall implement a discounted greens fee rate for all Ocoee Residents, subject
to additional terms, conditions, and restrictions from Owner.
• Golf Shop. Manager will provide operations in the Golf Shop consistent with the Golf Club Quality
Standard
• Driving Range. The driving range shall be open from dawn to dusk every day that the Golf Course is
open for play.
• Manager shall comply with all requirements of any Permits and with all Laws applicable to the Effluent
System permit.
As reviewed and approved by the Commission at the April 1, City Commission meeting, the Management Fee
for DTE is based on the following:
1. Base Management Fee. Manager shall be paid a base management fee in the amount of Five
Thousand and No/00 Dollars ($5,000.00) per month. The Base Management Fee shall be
comprehensive of all of Manager’s expenses, and except as expressly set forth herein and/or in the
Operating Plan, or as otherwise approved, in writing, by Owner, no administrative expenses or
additional overhead or other direct or indirect costs of Manager shall be billed directly or indirectly to
Owner.
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City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
2. Incentive Fee. Manager shall share any Net Income received by Owner, reconciled on a monthly
basis, in a ratio of seventy percent (70%) to Owner and thirty percent (30%) to the Manager, provided
that the Incentive Fee shall not exceed Four Thousand Dollars ($4,000.00) per month.
3. Management Fee Cap. The Management Fee shall not exceed Nine Thousand Dollars ($9,000.00) in
any calendar month during the Term.
Issue:
Should the Honorable Mayor and City Commissioners approve a Management Agreement for the Interim
Operations of Forest Lake Golf Course with Down To Earth for a period from May 1, 2025, to November 3,
2025?
Recommendations:
Staff recommends the Honorable Mayor and City Commissioners approve a Management Agreement for the
Interim Operations of Forest Lake Golf Course with Down To Earth for a period from May 1, 2025, to
November 3, 2025?
Attachments:
1. Forest Lake Golf Management Agreement_DTE_04102025
Financial Impacts:
A Base Management fee of $5,000.00 per month will be paid from the Golf Course Operating Account on a
monthly basis in accordance with this Agreement.
Type of Item: Consent
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Forest Lake Golf Club - Management Agreement (DRAFT - 4.10.25)
MANAGEMENT AGREEMENT
Forest Lake Golf Club
This Management Agreement (this “Agreement”) is made and entered into effective as of the Effective Date
between CITY OF OCOEE, a Florida municipal corporation (“Owner”), and ______________________, a
______________ (“Manager”).
A. Owner is the sole owner of Forest Lake Golf Club, which consists of an 18-hole championship golf course (“Golf
Course”) and certain related improvements, including without limitation, the Clubhouse, a driving range, parking areas, a
golf maintenance building, a golf cart storage building, practice green, parking areas, restrooms, water elements, cart paths,
and related landscaping, and an effluent transmission, disposal, and re-use facility (“Effluent System”), all of which
comprises approximately 229+/- acres of land located in Orange County, Florida (the “Land”). The Golf Course and the
Land are referred to collectively as the “Golf Club”.
B. Manager desires to manage and operate the Golf Club in accordance with this Agreement.
C. Owner is in the process of procuring a new tenant (“Tenant”) via a public solicitation for a request for proposals
(“RFP”) for the management and operation of the Golf Club, however, in the interim and prior to Tenant leasing the Golf
Club, Owner has determined that it is in Owner’s best interest to engage Manager to manage and operate the Golf Club
pursuant to the terms and conditions of this Agreement, and Manager is willing to accept such obligations pursuant to such
terms and conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Definitions. The following definitions and basic terms shall have the indicated meanings when used in this
Agreement:
(a) “Accountant” means collectively the firm(s) of accountants as selected by Owner, in Owner’s sole
discretion, servicing the books and records related to the Golf Club or otherwise assisting Owner in relation to the Golf
Club under this Agreement.
(b) “Affiliate” shall mean, with respect to any entity, (a) officers, directors, members, managers or
employees of, or general partner in such entity, and (b) any individual, corporation, limited liability company, partner,
partnership, trust or other entity which owns or controls, or is owned or controlled by, or is under common ownership or
control with such entity. As used herein the term “control” shall mean the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of partnership interests or voting securities, by
contract, by appointment to a managerial position, or otherwise.
(c) “Affiliated Facilities” shall mean all golf course facilities managed or operated by Manager
throughout the world, including without limitation, if designated as such by Manager, golf facilities operated by an Affiliate
of Manager.
(d) “Bookings” shall mean all bookings, contracts or other reservations (including, without limitation,
any booking for which a written proposal has been made by or on behalf of Manager and accepted by the recipient thereof
or for which a written proposal has been received and accepted by or on behalf of Owner, regardless of whether any deposit
or other amount has been received with respect thereto, or not) for, and all vouchers with respect to the future use of the
facilities and services of the Golf Club, with respect to any period from and after the Commencement Date, together with
any payments and/or other considerations related thereto, and all cash or cash equivalent deposits for the Bookings (other
than any such deposits which have been irrevocably forfeited by the depositing party and with respect to which Owner is
no longer obligated to provide any goods or services).
(e) “Contractor(s)” means collectively all contractors and professionals, including without limitation,
any engineer, architect, surveyor, design professional, consultant, subcontractor, service provider, vendor, materialmen, or
supplier retained by Manager and involved in any way in the improvement, repair, maintenance, and/or construction of any
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Forest Lake Golf Club - Management Agreement (DRAFT - 4.10.25)
improvements and/or other portions of the Golf Club, which all such parties shall be subject to the prior written approval of
Owner, which such approval shall not be unreasonably withheld, conditioned, or delayed.
(f) “City Manager” shall mean the person holding the position of “City Manager” of the City.
(g) “Executive Employees” shall mean the General Manager, Director of Golf, Food and Beverage
Manager, Kitchen Manager / Chef, and Golf Course Superintendent at the Golf Club.
(h) “Capital Improvement” shall mean any alteration of, addition to, or rebuilding or renovation of,
the Golf Club, the cost of which is not deductible for income tax purposes but is, instead, added to the applicable
improvement’s basis.
(i) “Clubhouse” shall mean the clubhouse facility located on the Golf Club consisting of offices, the
Golf Shop, men’s and women’s locker rooms, the Restaurant, and other related facilities.
(j) “Commencement Date” means the date that Owner obtains City Commission Approval.
(k) “Current Tenant” means collectively Forest Lake Golf Club, LLLP, a Florida limited liability
limited partnership, and its respective affiliates and subsidiaries.
(l) “Employees” means all on-site employees hired or retained by Manager in connection with the
operation, management, and maintenance of the Golf Club and pursuant to the Operating Plan.
(m) “Excusable Delay” shall mean any strike, organized labor disputes, governmental preemption in
connection with a national emergency, any rule, order or regulation of any governmental agency, conditions of supply or
demand which are affected by war or other national, state or municipal emergency, or any other cause or any cause beyond
a party’s reasonable control. The parties acknowledge and agree that either party’s incompetence or failure to deploy
reasonable resources to meet its obligations hereunder shall not be deemed to constitute an Excusable Delay.
(n) “Expiration Date” shall mean the effective date of termination of this Agreement, which shall be
October 31, 2025, unless extended or sooner terminated as provided in this Agreement.
(o) “GAAP” shall mean generally accepted accounting principles, which are the standard framework
of accounting guidelines developed by the Financial Accounting Standards Board and used in the United States.
(p) “Golf Cart Lease” means that certain Equipment Lease Agreement between Current Tenant and
PNC Bank, National Association, dated April 12, 2024.
(q) “Golf Club Bank Accounts” means collectively the Revenue Account and the Operating Account,
which shall constitute the entire system of accounts used for the operation and use of the Golf Club and which shall be
interest bearing to the extent reasonably practical.
(r) “Golf Club Quality Standard” shall mean a level of service which is above average in customer
response, quality of service, compassion and warmth, all in accordance with the service level criteria and performance
standards set forth in the Operating Plan and as otherwise stated in this Agreement.
(s) “Golf Shop” shall mean the retail store located within the Clubhouse.
(t) “Gross Revenue” shall mean all amounts received or receivable of any kind, whether in cash,
credit, barter, trade, or otherwise, derived from or connected to the operation, use, or occupancy of all or any portion of the
Golf Club whatsoever, and/or its various components, without deduction for expenses, taxes, or other costs, determined on
an accrual basis in accordance with GAAP consistently applied, including without limitation, greens fees, cart fees, rental
fees, membership fees and dues (including initiation, monthly, annual, and/or seasonal fees and dues), driving range
revenue, storage charges, parking, lesson fees and other amounts received as compensation for lessons and clinics, usage
fees, initiation fees, subscription charges, booking fees, including online and/or third-party bookings and commissions,
cancellation fees, late charges; event fees, tournament fees, and other activity-based revenue; Golf Shop revenue and retail
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Forest Lake Golf Club - Management Agreement (DRAFT - 4.10.25)
merchandise sales; food and beverage sales; all concession or vendor revenue, regardless of whether received directly or
indirectly, including vendor rebates, kickbacks, incentive payments, trade credits, and volume discounts; sponsorships,
advertising, marketing, promotional, and all intellectual rights-related revenue, ATM, vending, coin-operated, and ancillary
service income, all proceeds from the sale or redemption of gift cards, stored value cards, or similar instruments, and shall
also include any breakage income recognized in accordance with GAAP, regardless of when the original payment for such
instruments was received, insurance proceeds related to lost income and/or business interruption (net of the reasonable cost
of settling such claim with insurance carrier), redeemed gift cards, forfeited deposits, and credit balances; and all other
revenue of any kind derived from the Golf Club and/or its operations. The following shall be excluded from Gross Revenue,
only to the extent expressly approved in writing by Owner, which approval may be withheld in Owner’s sole and absolute
discretion, properly documented refunds or credits issued to customers for goods returned or services not rendered, provided
such refunds are not retained by Manager; proceeds from insurance policies compensating solely for physical damage to
property or equipment (excluding any business interruption, loss of use, or similar coverages); revenue from the sale of
capital equipment not held for resale and not regularly used in the operation of the Golf Club; funds collected and remitted
in full to IRS-recognized charities, with no portion retained by Manager; condemnation awards, except for temporary
takings that compensate for lost income; rebates or discounts from suppliers, and promotional refunds provided only when
pre-approved in writing by Owner, and not used to reduce reported Gross Revenue unless such rebates are passed directly
to customers with written documentation; excise, sales, use, gross receipts, and similar taxes collected from customers and
paid to governmental authorities, provided such taxes are separately stated on customer invoices; tips or gratuities actually
paid in full to Employees, and service charges billed to customers that are distributed entirely to staff as gratuities and not
retained by Manager; revenues earned directly by licensees, concessionaires, or vending operators, except to the extent
Manager receives compensation in lieu of rent or commissions tied to Golf Revenue; interest income, financing proceeds,
condemnation proceeds (excluding temporary takings), insurance proceeds (other than business interruption), and any other
capital transaction income; the portion of fees customarily retained by golf professionals or other contractors for private
lessons or services, pursuant to a written agreement approved by Owner; the value of merchandise, supplies, or equipment
returned to suppliers, and vendor refunds unrelated to customer transactions; actual uncollectible receivables, provided that
such amounts were previously included in Gross Revenue, Manager made commercially reasonable efforts to collect them,
and supporting documentation is provided to and accepted by Owner. For clarity, gift card sales, stored value card
redemptions, and any unredeemed balances (e.g., breakage) shall be included in Gross Revenue, and breakage may only be
excluded upon express written approval of Owner and in accordance with GAAP. Gross Revenue shall be reported on an
accrual basis, and shall include sales or services for which payment is not yet received. No discounts, offsets, allowances,
voids, or adjustments shall reduce Gross Revenue unless approved in writing by Owner and fully documented.
(u) “Hazardous Materials” shall include, but not be limited to: (i) any flammable, explosive, toxic,
radioactive, biological, corrosive or otherwise hazardous chemical, substance, solid, liquid, gas, device, form of energy,
material, pollutant, contaminant, or waste or component thereof, (ii) petroleum-based products, diesel fuel, paints, solvents,
lead, radioactive materials, cyanide, biohazards, infectious or medical waste and "sharps", printing inks, acids, DDT,
pesticides, ammonia compounds, and any other items which now or subsequently are found to have an adverse effect on the
environment or the health and safety of persons or animals or the presence of which require investigation or remediation
under any Law or governmental policy, and (iii) any item defined as a "hazardous substance", "hazardous material",
"hazardous waste", "regulated substance" or "toxic substance" under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq., Hazardous Materials Transportation Act,
49 U.S.C. §1801, et seq., Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq., Clean Water Act, 33
U.S.C. §1251, et seq., Safe Drinking Water Act, 14 U.S.C. §300f, et seq., Toxic Substances Control Act, 15 U.S.C. §2601,
et seq., Atomic Energy Act of 1954, 42 U.S.C. §2014 et seq., and any similar federal, state or local Laws, and all regulations,
guidelines, directives and other requirements thereunder, all as may be amended or supplemented from time to time.
(v) “Intellectual Property” shall mean (i) all trademarks, service marks, trade names, domain names,
URL’s, websites, brands, logos, signs or symbols, copyrights and/or other intellectual property (whether or not registered
and, if applicable, including, without limitation, pending applications for registration), owned, used, licensed or controlled
by Owner and/or relating to the Golf Club and/or the operation thereof, (ii) all telephone numbers (including facsimile
numbers) related to the Golf Club, and (iii) all marketing materials, advertising materials, promotional materials and any
directory listing used in the operation of the Golf Club.
(w) “Law(s)” shall mean all applicable federal, state, county, municipal and other governmental laws,
constitutions, statutes, ordinances, codes, orders, authorizations, regulations, resolutions, rules, requirements and directives
and all decisions, judgments, injunctions, orders, decrees or demands of courts, administrative bodies and other authorities
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Forest Lake Golf Club - Management Agreement (DRAFT - 4.10.25)
construing any of the foregoing, together with all Permits and obligations granted to or imposed upon Owner and/or Manager
with respect to the Golf Club by any governmental entity from time to time.
(x) “Management Fee” means collectively the Base Management Fee and the Incentive Fee.
(y) “Manager Representative” means Nick Dunleavy, an individual.
(z) “Mold” means an organism of the class fungi that causes disintegration of organic matter and
produces spores, and includes any spores, hyphae, and mycotoxins produced by mold, as defined under Florida Statutes §
468.8411(2), and this includes, without limitation, all toxigenic, pathogenic, or allergenic species of mold or fungi, whether
visible or hidden, that may pose a risk to human health, cause damage to property, or interfere with the lawful, safe, or
sanitary use of any building, structure, or improvements located on the Golf Club.
(aa) “Net Income” means the amount by which Gross Revenue exceed Operating Expenses for a given
month during the Term. Net Income shall be calculated on an accrual basis, in accordance with GAAP, consistently applied,
and shall reflect only those revenues and expenses properly included in accordance with the definitions and limitations set
forth in this Agreement, including but not limited to the exclusions from Gross Revenue and Operating Expenses. For
clarity, Net Income shall not be reduced by any capital expenditures (unless expressly approved, in writing, by Owner and
specifically designated to be treated as Operating Expenses), any bonuses, incentive compensation, or profit-sharing
amounts paid to Manager or Manager’s employees (unless pre-approved and included as Operating Expenses in accordance
with this Agreement), any depreciation, amortization, or non-cash accounting adjustments not otherwise required under
GAAP for revenue recognition, any corporate overhead, indirect costs, affiliate markups, or other amounts excluded from
Operating Expenses under this Agreement, or any unapproved write-offs, reserves, or accruals without supporting
documentation and Owner consent. In the event of a dispute concerning the calculation of Net Income, Accountant’s
determination shall control unless Manager demonstrates, by clear and convincing evidence and supported by a third-party
audit, that such determination materially deviates from GAAP or the terms of this Agreement.
(bb) “Operating Contracts” shall mean all contracts and agreement now or hereafter entered into for
the management, maintenance, and operation of the Golf Club, including without limitation, all such contracts for utilities
to be provided for the Golf Club and all such contracts for any Personal Property such as (i) all leases and other similar
agreements by which Owner or Manager (as applicable) has the right to use or possess any Personal Property and any other
equipment used in the operation of the Golf Club, (ii) all service, maintenance, management, distribution, marketing, supply,
franchise and/or license agreements and any other agreements relating to the operation of the Golf Club, and (iii) all
assignable licenses (including, without limitation, liquor licenses, if applicable) issued in connection with the Golf Club.
(cc) “Operating Expenses” means all actual, necessary, and reasonable costs and expenses directly and
exclusively related to the operation, maintenance, and management of the Golf Club, and incurred in the ordinary course of
business, in accordance with the Operating Plan and this Agreement, and subject to Owner’s written approval and oversight
as provided herein. Operating Expenses shall include, without limitation, salaries, wages, benefits, payroll taxes, workers'
compensation insurance, and related labor costs for Employees (excluding bonuses, incentive pay, or profit sharing), utility
costs (electricity, gas, water, sewer, internet, trash), janitorial, maintenance, landscaping, pest control, and security services;
Supplies and consumables used in operations, lease payments and minor repairs for leased equipment used exclusively at
the Golf Club, equipment rental (non-capital) and ordinary course maintenance expenses, advertising, marketing, and
promotional expenses approved in the Operating Plan, up to an annual cap set forth in the Approved Budget, or, if not stated
in the Approved Budget, as set by Owner, insurance premiums and deductibles, excluding any form of self-insurance,
reserves, or captive insurance plans, the Management Fee and any other fees or reimbursements due to Manager under this
Agreement, and all other expenses specifically identified as “Operating Expenses” elsewhere in this Agreement. Operating
Expenses shall expressly exclude, without limitation, any capital expenditures, unless specifically approved in writing by
Owner; any compensation, benefits, bonuses, or incentive payments for any corporate, regional, or off-site employees of
Manager, or any other personnel not physically located at and directly providing services to the Golf Club, unless such
personnel are performing a clearly defined, essential function for the Golf Club, the scope and associated cost of such
services are itemized in the Approved Budget, such cost is pre-approved in writing by Owner, and the expense represents
fair market value for such services and contains no markup or embedded overhead allocation, bonuses or incentive
compensation of any kind for Employees or off-site employees unless specifically included in the Approved Budget and
pre-approved in writing by Owner, self-insurance, reserves, or captive insurance structures, overhead allocations, corporate
administrative costs, shared services, or any indirect costs not specifically and solely related to Golf Club operations; fees
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or costs paid to any affiliate or related party of Manager unless expressly pre-approved in writing by Owner and supported
by third-party market pricing, any expenses resulting from Manager’s negligence, willful misconduct, or breach of this
Agreement, legal fees, claims, or settlements paid without Owner’s direction or consent, and any duplicated, inflated, or
undocumented charges. All Operating Expenses must be supported by detailed documentation and are subject to Owner’s
review and audit. Any disputes as to whether an expense qualifies as an Operating Expense shall be resolved in favor of
Owner.
(dd) “Operating Plan” means collectively the Business Plan and the Annual Plan.
(ee) “Operational Year” shall mean November 1 to October 31 of each year during the Term.
(ff) “OUA” means collectively the Ocoee Utility Department and all other related utility authorities.
(gg) “Owner Representative” shall mean the individual(s) designated, in writing, by City Manager to
whom Manager shall report.
(hh) “Permits” means collectively the Golf Club Permits, the Utility Permits, and all other related
permits, licenses, authorizations, approvals, entitlements, consents, and variances, whether regulatory, governmental, quasi-
governmental or otherwise, designated by Owner or necessary, appropriate, or required for the management, operation, and
maintenance of Golf Club, the Effluent System, or any relation portion thereof.
(ii) “Permitted Name” shall mean the Forest Lake Golf Club, subject to change by Owner from time
to time, at Owner’s cost and expense.
(jj) “Personal Property” means all furniture, fixtures, appliances, machinery, vehicles, equipment,
and Supplies used or useful in the operation of the Golf Club, including without limitation, golf carts, mowers, sprayers,
vacuums, flags, grass seed, pesticides, herbicides, maintenance and janitorial equipment and supplies, office supplies, all
furniture, furnishings, fixtures, equipment, inventory and supplies necessary or appropriate for the operation of the retail
and food and beverage portions of the Golf Club in accordance with this Agreement, including without limitation, shelves,
racks and display cases, Golf Shop inventory such as golf-related clothing, equipment and supplies, food and beverage
inventories, paper supplies, cleaning materials and equipment, tables, chairs, linens, uniforms, eating utensils, dishes,
glassware, cookware, stoves, ovens, dishwashers, computer equipment and communication equipment, and all artwork and
lighting fixtures, office equipment and furnishings (including without limitation, all calculators, typewriters, word
processors, and computer equipment), reservation terminal and reservation system equipment and software, cash registers,
kitchen, lounge, and restaurant equipment and furnishings (including without limitation, all china, glassware, silverware
and silver serving pieces, tables and chairs, podiums and staging platforms, and linens), audio visual equipment and sound
systems, laundry and dry cleaning equipment, safes, safety deposit boxes, employee lockers, and all other furnishings and
equipment used in connection with the ownership, operation, and maintenance of the Golf Club.
(kk) “Reimbursable Expenses” means collectively those certain actual out-of-pocket costs and
expenses incurred by Manager in the performance of this Agreement (e.g., travel, postage, and other incidental costs),
provided such costs and expenses are incurred by Manager in accordance with the Operating Plan.
(ll) “Residents” means those certain residents of the City of Ocoee, Florida.
(mm) “Restaurant” means the food and beverage facilities located at the Golf Club, including without
limitation, the main indoor dining area known as the Rusty Niblick Grille, any bar or lounge areas serving food and/or
beverages, any private dining or banquet rooms, all kitchen and food preparation areas, any take-out or quick service
counters operated on-site, and all associated exterior spaces, including patios, terraces, covered porches, decks, and outdoor
seating areas under the operational control of Manager or otherwise used in the service of food and beverage to patrons of
the Golf Club.
(nn) “Supplies” shall mean all inventory and supplies, including without limitation, food and beverage
inventory, Golf Shop inventory, supplies, glassware, plates, and similar supplies, and all other inventory and supplies of all
kinds, whether used, unused, or held in reserve storage for future use in connection with the management, maintenance,
and/or operation of the Golf Club.
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2. Engagement.
(a) Agreement to Manage. Owner hereby appoints and retains Manager, and Manager hereby accepts
such appointment and retention to act as consultant to Owner and as “manager” of the Golf Club during the Term with full
power and authority to carry out all duties, obligations, and responsibilities of Manager under this Agreement, and otherwise
upon the terms and subject to the conditions set forth herein.
(b) Standards of Performance. Manager accepts the relationship of trust and confidence established
between Manager and Owner by the terms of this Agreement. Manager acknowledges that Owner has very substantial
interests in maintaining the image, reputation, aesthetic appearance and quality of, and harmony among, the properties
which surround the Golf Club and that the Golf Club will be used by Residents, Owner’s employees, guests and invitees,
and other patrons. Manager shall operate and maintain the Golf Club in accordance with the Golf Club Quality Standard
and in accordance with the terms and conditions of the Operating Plan (or other applicable period) during the Term.
Manager shall report to City Manager or Owner Representative concerning the management and operation of the Golf Club.
Manager covenants with Owner to furnish Manager’s best skill and judgment in performing Manager’s obligations
hereunder, and Manager shall at all times provide such consulting and managerial services in a manner which maintains the
good name and business reputation of Owner and the Golf Club. Manager shall perform Manager’s duties, obligations, and
responsibilities under this Agreement in an efficient, expeditious, prudent and economical manner, consistent with the best
interests of Owner, in accordance with the standards followed by Manager in Manager’s role as manager of similarly situated
golf course facilities operated by Manager, in accordance with the Golf Club Quality Standard, and in such manner so as to
maximize Gross Revenue and minimize Operating Expenses, both as set forth in this Agreement and otherwise in connection
with operation and maintenance of the Golf Club.
(c) Permitted Use. The Golf Club shall be used solely for the operation of a public (18) hole
championship golf course, and retail golf shop, restaurant, driving range and such other uses and amenities as may be
approved, in writing, by Owner, in Owner’s sole discretion (the “Permitted Use”), and for no other uses or purposes. The
Golf Club shall be used exclusively for the Permitted Use. No other use is allowed without prior written approval from
Owner, which may be granted or withheld in Owner’s sole discretion. Further, the Golf Club shall not be used for any
prohibited uses or actions or illegal purpose, nor in any manner to invalidate either or both Owner’s and Manager’s insurance
or to increase Owner’s and/or Manager’s insurance premium rates. The Golf Club shall only be operated under the Permitted
Name and such name may not be changed without the prior written approval of Owner, which approval may be granted or
withheld by Owner, in Owner’s sole and absolute discretion. All uses of the Golf Club not expressly included within the
Permitted Use shall be deemed prohibited.
3. Term. The term of this Agreement shall commence as of 12:01 a.m. Eastern Standard Time on the
Commencement Date and shall continue until 11:59 p.m. Eastern Standard Time on the Expiration Date (the “Term”) unless
earlier terminated in accordance with Section 11 below.
4. Representations, Warranties, and Covenants of Manager. To induce Owner to enter into this Agreement,
Manager hereby makes the representations warranties, and covenants in this Section as of the Effective Date and as of the
Commencement Date, of which all such representations, warranties, and covenants shall remain true and correct, without
change, at all times during the Term, upon which Manager acknowledges and agrees that Owner is entitled to rely:
(a) Manager (i) is a duly organized and validly existing limited liability company qualified to do
business in the State of Florida, (ii) has the full right and authority to execute, deliver and perform all matters set forth in
this Agreement, and (iii) has all necessary authorizations and approvals authorizing Manager to execute this Agreement.
(b) This Agreement constitutes a valid and binding obligation of Manager, enforceable in accordance
with its terms, subject only to bankruptcy, insolvency or similar laws affecting enforcement of creditors' rights generally as
the same may be applicable to any insolvency of Manager and subject to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(c) The execution and delivery by Manager of this Agreement and the performance by Manager of its
obligations hereunder do not and will not conflict with, or result in a breach of or a default or violation under, any contract,
lease, agreement or arrangement to which Manager is a party or any statute, decree, judgment, regulation, order or rule of
any governmental authority having jurisdiction over Manager.
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(d) There are no actions, suits, proceedings or investigations (including, without limitation,
condemnation or similar proceedings) pending or threatened against Manager or its affiliates that would materially adversely
affect performance by Manager hereunder and Manager is not aware of any facts which might result in any such action, suit
or proceeding.
(e) Manager will, at Manager’s own expense, obtain and keep in full force and effect Manager’s legal
existence and the rights required for Manager to observe all of the terms and conditions of this Agreement.
(f) Manager has knowledge, expertise and experience in managing, operating, maintaining, and
promoting golf club facilities.
(g) Manager is not and will not be and will continue not to be bankrupt or insolvent as such terms are
defined under the Laws.
(h) Manager has the financial wherewithal to perform Manager’s obligations under this Agreement
(i) That neither Manager nor any affiliate of Manager is subject to sanctions of the United States of
America or in violation of any Laws relating to terrorism or money laundering, including without limitation, the Executive
Order and the Patriot Act. Neither Manager nor any affiliate of Manager is a Prohibited Person.
(j) That neither Manager nor any affiliate of Manager will knowingly (i) conduct any business or
engage in making or receiving any contribution of funds, goods, or services to or for the benefit of any Prohibited Person;
(ii) deal in, or otherwise engage in, any transaction relating to any property or interest in property blocked pursuant to the
Executive Order; or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Executive Order or the Patriot Act, nor is
Manager nor any affiliate of Manager currently doing any of the things described in the immediate preceding sentences in
this subsection as of the Effective Date.
(k) Manager shall promptly disclose to Owner, in writing, any conditions or events that arise or occur
subsequent to the Effective Date that become known to Manager, and which contradict or modify any representation or
warranty of Manager set forth in this Agreement
5. Operating Plan.
(a) Business Plan. On or before the Commencement Date, Manager shall prepare and submit to
Owner, for Owner’s prior written approval, a comprehensive written business plan for the management and operation of the
Golf Club during the Term, such proposed plan, as approved, in writing, by Owner in accordance with the terms of this
Agreement, referred to hereafter as the “Business Plan”. The proposed business plan shall include, at a minimum, the
following components:
(i) Transition Plan. A plan to ensure a smooth and efficient transition from Current Tenant to
Manager that will outline Manager’s overall transition process, which shall include Manager Representative overseeing all
aspects of the transition and working directly with Current Tenant and Manager meeting with current employees and other
personnel at the Golf Club for an informational session to explain Manager’s expectations of each employee and Manager’s
policies and procedures, of which such meeting shall occur on or before five (5) days prior to the Commencement Date.
Moreover, during the transition period, Manager shall establish vendor accounts with preferred pricing, set up bookkeeping
and the Operating Account, acquire all point-of-sale systems, maintenance equipment is prepared and moved to the Golf
Club by Manager, Personal Property is acquired as reasonably necessary and in accordance with the Approved Budget, all
Supplies are ordered, website, social media, and other platforms are set up and content planned for launch as of the
Commencement Date.
(ii) Executive Summary. A summary of Manager’s goals and objectives for the Golf Club
operations, including key performance indicators.
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(iii) Operations Plan. A detailed plan for day-to-day operations, including maintenance
schedules, hours of operation, and customer service standards.
(iv) Marketing Plan. A projected marketing plan for the Golf Club, which shall include a
competitive course assessment, a market and tourism study, product positioning analysis, and review of the Golf Club’s
strengths, weaknesses, opportunities and threats, along with strategies for increasing rounds played, memberships,
tournament bookings, food and beverage sales, and other revenue-generating activities.
(v) Merchandise Plan. An inventory list of merchandise and offerings to be sold from the Golf
Shop that shall ensure that the Golf Shop is maintained and operated in accordance with the Golf Club Quality Standard.
(vi) Financial Plan and Budget. A detailed operating budget including projected revenues and
expenses, cash flow projections, Capital Improvement needs, and pricing strategies for green fees, cart rentals, food and
beverage, merchandise, and other services. For purposes of this Agreement, such proposed budget, as approved, in writing,
by Owner in accordance with the terms of this Agreement, referred to hereafter as the “Approved Budget”.
(vii) Capital Improvement Plan. A schedule and budget for any Capital Improvements or
deferred maintenance recommended by Manager during the Term.
(viii) Staffing Plan. Organizational chart, staffing levels, position descriptions, hiring and
training plans, and compensation structure.
(ix) Community Engagement Plan. A strategy for community involvement, including
programming, partnerships, and public outreach.
(x) Environmental and Sustainability Practices. Proposed practices to ensure responsible use
of resources, environmental compliance, and sustainability of course operations.
(xi) Risk Management Plan. Safety protocols, insurance coverage, and procedures for incident
response and liability management.
(xii) Performance Metrics and Reporting. Key metrics by which Manager will evaluate and
report on the success of operations and progress toward objectives, including proposed reporting intervals.
(b) Annual Plan. On or before August 1, 2025, Manager shall prepare and submit to Owner for
Owner’s prior written approval a proposed budget for the Golf Club for the Operational Year, such proposed budget, as
approved, in writing, by Owner in accordance with the terms of this Agreement, referred to hereafter as the “Annual Plan”.
The Annual Plan shall include an operating budget containing estimates of all Gross Revenue and Operating Expenses for
the Operational Year, including detailed expenditures for (i) property operation and maintenance, (ii) annual tree trimming
and over seeding plan, (iii) repairs, replacements, and alterations which do not constitute Capital Improvements, (iv)
Personal Property, and (v) a Capital Improvement plan for the Operational Year. The Annual Plan shall also include a golf
maintenance plan for the Golf Course, including an environmental management plan, and a marketing and business plan for
the Golf Club.
(c) Compliance. Manager shall fully comply with the Operating Plan (as applicable). Without the
prior written consent of Owner, the actual amount expended by Manager for Operating Expenses shall not exceed the
amount set forth in the Operating Plan (as applicable). Transfers of budgeted line-item expenditures shall be approved, in
writing, by Owner. Notwithstanding the above, Manager shall be permitted to make additional expenditures not authorized
under the applicable Operating Plan to the extent necessary to respond to an emergency situation which threatens public
health and safety or an imminent threat of substantial damage to the Golf Club. In the event of an emergency which does
not threaten public health and safety or an imminent threat to the Golf Club, but which materially impairs the ability of
Manager to operate the Golf Club in a normal manner or is necessary to comply with any applicable insurance requirements,
Manager shall submit an emergency funding request to City Manager and Owner Representative, and City Manager and
Owner Representative shall take prompt action to respond to such request.
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6. Duties and Obligations of Manager. Manager acknowledges that Owner has very substantial interests in
maintaining the image, reputation, aesthetic appearance, and quality of, and harmony among, the Golf Club and other
properties that surround the Golf Club, and that the Golf Club will be used by Residents and other patrons. Therefore,
continuously throughout the Term, Manager shall perform and assume the following duties and obligations:
(a) Leadership and Guidance. Manager will provide a comprehensive analysis of all aspects of the
existing goals in place for maintenance, operations and marketing of the Golf Club. Manager will work closely with Owner
in defining the ongoing goals and visions for the Golf Club and will provide the Operating Plan based upon these
conclusions. Manager will provide consistent guidance and vision to the Golf Club and take proactive steps to successfully
operate the Golf Club and adhere to annual operating expectations. Manager will develop, support and implement a culture
of excellence within the Golf Club based upon pride, respect, quality of service, and creating an exceptional experience for
all patrons of the Golf Club.
(b) Comprehensive Pre-Commencement Inspection. Manager shall conduct a thorough and
comprehensive inspection and evaluation of the Golf Club prior to the Commencement Date. Moreover, on or before April
16, 2025, Manager shall participate in a joint inspection of the Golf Club with Owner and Current Tenant to identify any
outstanding maintenance, repair, or compliance issues. The purpose of said inspections is to ascertain, document, and verify
the physical condition, operability, and adequacy of all aspects of the Golf Club and its associated infrastructure,
improvements, and systems, as well as to establish a baseline condition prior to Manager’s assumption of management
responsibilities. No later than three (3) business days prior to the Commencement Date, Manager shall provide Owner a
comprehensive analysis and report of all findings of Manager’s inspections and evaluations of the Golf Club.
(c) General. Manager shall perform the duties set forth in this subsection and as provided elsewhere
in this Agreement in accordance with sound management practices in a diligent, careful and vigilant manner, and in
accordance with the Golf Club Quality Standard, and provided that Manager must so manage and operate within the
parameters and limitations of the Operating Plan then in effect.
(i) Except as otherwise herein provided, Manager shall arrange for, coordinate, supervise,
administer and manage all activities and services required for the promotion, management, operation and maintenance of
the Golf Club in accordance with the Golf Club Quality Standard and in accordance with the other requirements of this
Agreement. Manager shall use Manager’s best efforts, due diligence and reasonable care and shall act at all times in good
faith. Manager shall use its best efforts to comply with and abide by all Laws relating to the operation of the Golf Club,
including without limitation, all Laws relating to employment, on the condition that Manager shall have the right, but not
the obligation, in Manager’s reasonable discretion, to contest or oppose, by appropriate legal proceedings, the validity or
applicability of any Laws. Manager shall indemnify, defend, and hold harmless Owner Parties from and against and loss,
cost, damage expense and including without limitation, attorneys’ fees as a result of such contest or non-compliance.
(ii) Maintain in full force and effect all Operating Contracts (other than such Operating
Contracts as may be replaced by a new Operating Contract) necessary or appropriate for the ongoing management,
maintenance and operation of the Golf Club in accordance with this Agreement.
(iii) Supervise the management of play on the Golf Course and the operation of the Golf Shop,
bag room, locker rooms, driving range, and golf carts.
(iv) Coordinate golf activities and programs with community groups and outside agencies, and
generally, represent the Golf Club within the City of Ocoee, Florida as necessary to ensure maximum use and play.
(v) Immediately advise Owner of any discovery by Manager of any condition or event which
may have a material adverse effect upon the Golf Club or its operations.
(vi) Operate and maintain the Golf Club in a condition and to the Golf Club Quality Standard,
and to a standard that is equal to or better than the standard quality of other similar golf course facilities in Orange County,
Florida, and maintain the Golf Club in a clean, sanitary, safe, attractive condition and in good repair, and shall keep adjacent
sidewalks clean and free of trash or debris.
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(vii) Procure and maintain (and renew as necessary) all necessary permits, licenses, including
occupational licenses and liquor licenses, franchises, authorizations, approvals, entitlements, consents, and variances,
whether regulatory, governmental, quasi-governmental or otherwise, designated by Owner or necessary, appropriate, or
required for management, operation, and maintenance of the Golf Club for the Permitted Use (collectively, “Golf Club
Permits”), all of which shall be in the name of Manager, provided that Owner shall remain financially responsible and that
all Golf Club Permits shall be the sole and exclusive property of Owner. Manager shall expend Manager’s best efforts to
ensure that all Golf Club Permits are not violated by any action or omission by Manager or any Manager Party in the course
of Manager’s performance of Manager’s duties and obligations hereunder.
(viii) Not conduct any auction, bankruptcy, fire, “lost-of-lease,” “going-out-of-business” or
similar sale (whether voluntary, involuntary or pursuant to any bankruptcy or insolvency proceeding) or make any unlawful
use of the Golf Club.
(ix) Continuously and uninterruptedly keep open and operate normal business throughout the
entire Golf Club, of which the Golf Club shall be fully fixtured, stocked, and staffed for the Permitted Use for at least the
operating hours of the Golf Club and applicable portions thereto, as stated in this Agreement.
(x) Manager shall cause all Manager Parties to comply with and abide by the Governing
Documents and the Laws.
(xi) Confer with Owner regarding excessive complaints regarding the Golf Club which come
to the attention of Owner and if such complaints are reasonably found by Owner to be justified, to immediately remedy the
cause or causes of such complaints. Manager shall use best efforts to amicably resolve all complaints, disputes or
disagreements in connection with the Golf Club as promptly and as reasonably possible.
(xii) Take all appropriate action to perform, remediate, and otherwise complete all measures to
abide by the direction and recommendations that Owner may make from time to time with respect to management,
maintenance, and operation of the Golf Club.
(xiii) Make recommendations to Owner regarding possible alterations, modifications or
additions to the Golf Club, all of which shall be subject to Owner’s prior written approval. Manager shall be responsible
for causing the completion of any alterations, modifications or additions to the Golf Club approved by Owner.
(xiv) Conduct all operations, and maintain the Golf Club in accordance with the terms and
conditions of the Golf Club’s rules and regulations and all other governing documents, all as heretofore or hereafter
reasonably amended from time to time at Owner’s direction and consent (collectively, the “Governing Documents”).
Manager shall enforce the Governing Documents, so that all users of the Golf Club are required to use the Golf Club in
accordance therewith.
(xv) Maintain the Golf Club in accordance with all covenants, restrictions, and easements of
record in a good and workmanlike condition.
(xvi) Arrange at Owner’s expense for compliance in all material respects with all Laws and
insurance policies affecting the Golf Club. Manager will promptly notify Owner of any notice that Owner receives of any
non-compliance with any Laws or insurance policies and, with the prior written consent of Owner, make arrangements for
curing the non-compliance, including without limitation, any alterations or repairs ordered or required to cure such non-
compliance, provided, however, that Owner shall have the right to contest any such Laws affecting the Golf Club. The
Approved Budget shall be amended to reflect the cost of curing such non-compliance. Such revision to the Approved
Budget may include Capital Improvements to the extent required by the Laws, and expenditures to comply with the Laws
shall not be subject to Owner’s prior approval if such Capital Improvements must be installed on an emergency basis so as
to avoid violating the Laws, provided that Manager provides prompt written notice to Owner regarding any such Capital
Improvement. Further, Manager shall promptly discharge any lien, encumbrance or charge on or with respect to the Golf
Club and the operation thereof, other than mortgages and/or other encumbrances agreed to, in writing, by Owner.
(xvii) Fully cooperate with, and provide any necessary or appropriate documents, materials and
information to, any financial institution or other lender designated by Owner, and consent to the assignment by Owner of
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this Agreement to any such lender as security for any loan made by such lender to Owner; provided, however, that in no
event will Manager be required to take any action that would materially change Manager’s rights or obligations set forth
herein.
(xviii) Prepare and/or forward to Owner, all notices, reports and other communications arising out
of, connected with or incidental to the management, maintenance, operation, and preservation of the Golf Club.
(xix) Fully cooperate with, and provide all documents, materials, and information to, Owner and
other applicable parties deemed necessary for the RFP and/or as requested by Owner and/or any Owner Party.
(xx) Manager shall comply with all requirements of all permits, licenses, including any
consumptive use permit, authorizations, approvals, entitlements, consents, and variances, whether regulatory, governmental,
quasi-governmental or otherwise, designated by Owner or necessary, appropriate, or required for the management,
operation, and maintenance of the Effluent System (collectively, “Utility Permits”) and with all Laws applicable to the
Effluent System, and if directed by Owner, Manager shall manage, operate, and maintain the Golf Club in such a manner
so as to accept for transmission, disposal, and re-use of treated effluent from the Owner’s wastewater treatment facility
and/or the City of Winter Garden’s wastewater treatment facility.
(xxi) Perform those certain duties, obligations, and responsibilities of Manager stated on Exhibit
B.
(d) Specific Operating Procedures. In addition to the general duties, obligations, and responsibilities
of Manager stated herein, Manager shall manage, operate, and maintain the Golf Club in accordance with the following
specific operating procedures and shall perform or cause to be performed all of the following duties, obligations, and
responsibilities on behalf of Owner and for the benefit of the Golf Club:
(i) Accounting. Manager shall be responsible for performing all accounting services and
financial functions necessary for the proper operation and management of the Golf Club, which such services shall include
without limitation, maintaining complete, accurate, and up-to-date books and records in accordance with GAAP,
consistently applied, preparing and maintaining all journals, ledgers, payroll records, and supporting documentation related
to revenues, expenses, and cash flow, processing accounts payable and receivable, diligently pursuing the collection of all
sums due and owing to Owner from all purchasers of goods and/or services relating to the Golf Club, managing and
reconciling the Golf Club Bank Accounts, recording and tracking all sales, deposits, refunds, credits, and adjustments,
preparing and submitting to Owner financial statements and reports, including profit and loss statements, balance sheets,
cash flow statements, and other reports as reasonably requested by Owner, implementing internal financial controls to
prevent fraud, waste, or unauthorized expenditures; ensuring compliance with all applicable laws, tax regulations, and
financial reporting requirements, and performing those certain duties, obligations, and responsibilities of Manager stated on
Exhibit C. All financial records shall be maintained on-site or in an electronic system accessible to Owner, and shall be
available for inspection and audit by Owner at any time upon reasonable notice.
(ii) Marketing and Sales. Manager shall be responsible for all marketing, advertising, and sales
activities necessary to promote the Golf Club and all related activities thereto. Manager shall develop and implement
marketing and sales plans, budgets, and promotional strategies, subject to prior review and approval by Owner, execute
digital, print, radio, social media, and direct outreach campaigns to increase rounds played, event bookings, restaurant
traffic, and overall customer engagement, maintain and update the Golf Club website and online presence, ensuring accurate
and timely communication of operating hours, promotions, and services, coordinate with tourism bureaus, local businesses,
hotels, and other strategic partners to attract golfers and visitors, manage all group sales, tournament bookings,
memberships, and event rental contracts, track and report marketing performance data and return on investment, as
reasonably requested by Owner, and perform those certain duties, obligations, and responsibilities of Manager stated on
Exhibit D . All marketing materials shall reflect high professional standards and be consistent with the branding and image
of the Golf Club as approved by Owner.
(iii) Human Resources. Manager shall be responsible for the recruitment, hiring, training,
supervision, discipline, and termination of all Employees engaged in the day-to-day operation of the Golf Club. Manager
shall employ a sufficient number of qualified, trained, and courteous Employees to operate the Golf Club at standards
acceptable to Owner, develop and provide Employee job descriptions, and operational and procedural manuals, ensure all
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Employees comply with the Laws, licensing requirements, safety regulations, and equal employment opportunity standards,
develop and implement employee training programs, customer service standards, and operational protocols, maintain
accurate employee records, including timekeeping, payroll, benefits administration, and personnel files, enforce appropriate
employee appearance, conduct, and performance expectations consistent with Owner’s brand and policies, comply with all
workplace safety and Occupational Safety and Health Administration (“OSHA”) requirements, ensure proper handling of
equipment and materials, coordinate all human resource issues, legal issues and matters regarding Employees, and offer
Manager’s advice to Owner on improvements and direction, and perform those certain duties, obligations, and
responsibilities of Manager stated on Exhibit E.
(iv) Maintenance. Manager shall be responsible for the ongoing maintenance, cleanliness,
appearance, and repair of all buildings, grounds, equipment, and improvements at the Golf Club and all portions related
thereto. Manager shall perform all routine, preventative, and corrective maintenance necessary to maintain the Golf Club
in accordance with the Golf Club Quality Standard and in compliance with all Laws, maintain the Golf Course in a condition
consistent with standards approved, in writing, by Owner and the Operating Plan, including mowing, irrigation, fertilization,
pest control, aeration, bunker maintenance, and tree care, maintain all mechanical systems, restrooms, lighting, and
infrastructure in safe and operable condition, promptly address any facility-related customer complaints or safety issues,
maintain and regularly inspect all Personal Property used in the operation of the Golf Club, maintain a detailed maintenance
log and service records, available for Owner review, and perform those certain duties, obligations, and responsibilities of
Manager stated on Exhibit F. No deferred maintenance shall be permitted without Owner’s written approval. Any capital
repairs or replacements shall be subject to Owner’s prior written approval in accordance with this Agreement.
(e) Operating Contracts. Contemporaneously with the execution of this Agreement and effective as of
the Commencement Date, Manager, at no cost or expense to Owner, shall assume all Operating Contracts (including the
Golf Cart Lease), provided that such assumption shall be in writing and otherwise in a form and content reasonably
acceptable to Manager and the third-party so long as Owner is not subject to any liability as of the effective date of such
assignment (which shall be no later than the Commencement Date) until the expiration or termination of this Agreement,
and then only to the extent as specially stated herein. Notwithstanding the foregoing, in the event that any Operating
Contract, by its terms, is not assignable, in the event that third-party consent is required in connection with the assignment
of any Operating Contract, or in the event that any fee is payable in connection with the assignment of any Operating
Contract, Owner, at Owner’s sole expense, shall be responsible for securing such assignment right, securing such third-
party consent, or paying any such fee, provided such Operating Contract was properly procured in accordance with this
Agreement. If Owner is unsuccessful in securing such assignment right and/or securing such third-party consent, then as to
an Operating Contract that cannot be assigned in accordance with this subsection: (i) as between Owner and Manager,
Manager shall be responsible for the satisfaction of Owner’s non-monetary obligations existing in such non-assigned
Operating Contract; and (ii) Manager shall pay to Owner, upon request for reimbursement, all sums paid by Owner to a
third-party under such non-assigned Operating Contract provided, however, that Manager shall not be responsible for
additional sums that become due and payable under a non-assigned Operating Contract due to the actions of Owner or
anyone for whom Owner is legally responsible (e.g., an Owner-caused default of the non-assigned Operating Contract or
an Owner-executed amendment of the non-assigned Operating Contract).
(i) Golf Carts. In furtherance of the foregoing, as of the Commencement Date and continuing
throughout the Term, Manager shall be responsible for all golf carts leased for the Golf Club by entering into an assignment
and assumption of the Golf Cart Lease. Manager shall keep such golf carts in good order and repair, and maintain, repair
and replace the same throughout the Term. Provided that the lessor under the Golf Cart Lease agrees to assign to Manager
the Golf Cart Lease and/or release Owner from all obligations under the Golf Cart Lease, Manager may, at any time during
the Term, elect to enter into an agreement with another party to lease golf carts for the Golf Club, provided, however, that
the agreement must be acceptable to Owner, in Owner’s sole discretion, including without limitation, (i) appropriate term
and (ii) must include a cash trade-in allowance or buy-back fee payable by said party and lease rate acceptable to
Owner, in Owner’s sole discretion. Manager shall provide Owner with a copy of any proposed golf cart lease agreement
for review prior to executing the same. Any trade-in-allowance or buy back fee shall be payable to and retained by Owner
or any other amounts payable by Owner under this Agreement.
(ii) Personal Property; Procurement; Contract Services. Manager shall maintain all Personal
Property in good working order and repair, and otherwise in a safe, clean, sanitary and attractive condition, provided that
Manager shall not be liable for ordinary wear and tear. Subject to the Operating Plan (as applicable), in carrying out
Manager’s duties and obligations hereunder, Manager shall arrange, on Owner’s behalf, for procurement of all Personal
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Property for the normal and ordinary course of operation of the Golf Club and to operate the Golf Club in accordance with
this Agreement. In procuring the applicable Personal Property and other necessary goods and services related to the
management and operation of the Golf Club:
(1) Manager shall enter into applicable Operating Contracts in the name of Manager
and at the expense of Owner for the furnishing to the Golf Club all services required for operation of the Golf Club, including
without limitation, electricity, gas, water, steam, telephone, catering services, consulting services, cleaning services, vermin
extermination services, grease trap removal, maintenance, air conditioning maintenance service, and cable television
services, subject to the Operating Plan (as applicable), provided, however, Manager shall not enter into any Operating
Contract, without the prior written consent of Owner or unless approved in the Operating Plan (as applicable), which
involves an aggregate amount of consideration in excess of Two Thousand Dollars ($2,000.00), which exceeds one (1) year
in length, and/or which are not terminable upon thirty (30) days prior notice without penalty.
(2) Manager may utilize Manager’s purchasing procurement and/or other group
buying programs involving Affiliates and/or Affiliated Facilities, subject to the strict adherence to this Agreement. In
connection therewith, Owner shall be entitled to receive any and all price discounts or credits that are available under such
programs for the specific Personal Property or service provided to the Golf Club, provided that Manager may receive and
retain a fee or other compensation from vendors and service providers that is not based on the price of the specific Personal
Property or service but that is made available to Manager based on the aggregate purchases of such items or services during
a specific time period for their services in making the benefit of volume purchases available to Affiliated Facilities or
negotiating and implementing the arrangements with such vendors or service providers. In any and all events, the cost of
any specific Personal Property and/or service purchased by Manager through such programs shall be competitive with that
which would be charged by non-affiliated third-party vendors in an arms-length transaction, and provided that all Affiliate-
related transactions require prior written approval by Owner, and Manager must disclose, in writing, all ownership interests
in any Affiliates or Contractors contracting and/or providing, directly or indirectly, any Personal Property or other goods or
services to the Golf Club.
(3) With respect to any construction work done by or under Manager’s supervision,
Manager shall obtain all warranties provided by, and lien waivers from, laborers, materialmen and all Contractors in
connection with any work done on, or goods or materials incorporated into, the Golf Club, or any part thereof, and do such
other acts as may be necessary or appropriate to preserve and maintain the Golf Club free and clear of any and all liens.
(f) Meetings. Manager shall be available to meet with City Manager, Owner Representative, and other
individuals as designated by Owner, either personally or by telephone conference call on an as frequent as needed basis to
assure the successful performance of Manager’s duties and obligations hereunder, and of the operations of the Golf Club.
The parties shall meet not less than quarterly for a formal review of the Golf Club operations. Both parties will be available
for telephonic meetings upon reasonable notice to the other. The Executive Employees shall make themselves available to
attend the aforementioned meetings. More specifically, Owner Representative and Manager shall meet monthly to discuss
the operating and financial performance of the Golf Club, and in connection therewith, any amendments or modifications
to the Operating Plan to take into consideration variables, circumstances, or events that did not exist, or could not be
anticipated by Manager or Owner at the time the then-current Operating Plan was approved. Any material amendments or
revisions to the Operating Plan shall be approved, in writing, by Owner.
(g) Entry and Inspection by Owner. Manager agrees that Owner and/or any Owner Party shall have
the right to enter the Golf Club for any reason or no reason, including without limitation, to inspect the same, to exercise
Owner’s rights under this Agreement, to show the Golf Club to any party that Owner desires, and to post appropriate or
lawful notices. Manager waives any claims for damages for any injury or inconvenience to or interference with Manager’s
business. For each of the aforesaid purposes, Owner shall at all times retain a key with which to unlock all of the doors in
the Golf Club. Owner shall have the right to use any and all means which Owner may deem proper to open said doors in
an emergency and any entry to the Golf Club obtained by Owner by any of said means, or otherwise, shall not under any
circumstances be deemed to be a forcible or unlawful entry into, or a detainer of, the Golf Club. Any inspections or reviews
performed by or on behalf of Owner are for the sole benefit of Owner and neither Owner, nor any of Owner Parties, shall
have, assume or incur any liability or responsibility whatsoever, in damages or otherwise, to Manager or any other
person or entity, by reason or on account of any inspection or review and/or any approval or disapproval of any item or
matter by Owner.
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(h) Access for OUA. Manager acknowledges and agrees that this Agreement is solely a management
agreement and does not constitute a lease, sublease, or other conveyance of a real property interest in the Golf Club or any
portion thereof. Manager shall have no right to exclusive possession or control of the Golf Club or any portion thereof,
except as necessary to carry out Manager’s duties, obligations, and responsibilities under this Agreement. Manager further
acknowledges that Owner retains all rights of access, use, and control over the Golf Club, including but not limited to the
right to grant access to OUA or any other utility provider as may be necessary for the operation, maintenance, repair,
inspection, and/or improvement of utility infrastructure located on, under, or adjacent to the Golf Club. Manager shall not
interfere with, and shall provide all reasonable cooperation and accommodations necessary to facilitate, the access and
operational needs of OUA and its contractors, including temporary relocation or adjustment of Golf Club’s activities if
reasonably required by Owner or OUA. Manager shall coordinate in good faith with Owner and OUA to minimize any
disruption to the Golf Club’s operations. Nothing in this Agreement shall be construed to create any tenancy, leasehold,
easement, or possessory interest in favor of Manager with respect to the Golf Club or any related real property.
(i) Prohibited Actions. Without the prior written consent of Owner, which consent may be granted or
withheld in the Owner’s sole discretion, Manager shall not do, or cause or permit to be done, any of the following during
the Term:
(i) Borrow or lend money in the name of the Golf Club or Owner.
(ii) Except for the Operating Contracts which are approved by Owner or the Operating Plan,
enter into any agreement relating, directly or indirectly, to the Golf Club.
(iii) Assign, transfer, pledge, compromise or release any of the claims of or debts due Owner,
except upon payment in full, or, arbitrate or consent to the arbitration or settlement of any claim of or against Owner or any
other dispute or controversy involving Owner.
(iv) Make, execute or deliver in the name of Owner, or with respect to any of the assets of
Owner or the Golf Club, any assignment for the benefit of creditors or any bond, confession of judgment, chattel mortgage,
security instrument, deed, guarantee, indemnity bond or surety bond.
(v) In the name of or on behalf of Owner, endorse any note, or become a surety, guarantor, or
accommodation party to any obligation.
(vi) Commence or maintain in the name of or on behalf of Owner any action or proceeding,
whether judicial, administrative or otherwise.
(vii) Make any deletion, addition, modification, improvement or other alteration to the Golf
Club other than as expressly authorized hereunder or pursuant to the Operating Plan.
(viii) Expend any funds, except as expressly contemplated in the Operating Plan (as applicable)
or this Agreement, or as otherwise agreed upon by Owner.
(ix) Use any Intellectual Property except in connection with the operation and promotion of the
Golf Club.
(x) Hire anyone as an Employee at a rate of compensation and/or other consideration in excess
of that agreed to by Owner in the Operating Plan (as applicable), unless approved in advance by Owner prior to the hiring
of such individual.
(xi) Retain any entity, other than Manager, to manage the management, operation, and/or
maintenance of the Golf Club., except as otherwise stated herein.
(xii) Conduct Manager’s business, or allow or suffer any Manager Party to conduct themselves
in such manner as to create any nuisance, or interfere with, annoy or disturb any customers, invitees, or patrons of the Golf
Club, or commit waste or suffer or permit waste to be committed in or about the Golf Club.
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(xiii) Accept any Bookings for goods and/or services and the Golf Club after December 31, 2025.
(j) Hazardous Materials. Manager hereby represents and warrants to and for the benefit of Owner that
the Golf Club will not be used or operated in any manner that will result in the storage, use, treatment, manufacture, or
disposal of any Hazardous Materials upon the Golf Club or which will result in Hazardous Materials contamination. Except
as provided herein, Manager shall not transport, use, store, maintain, generate, manufacture, handle, dispose, release,
discharge, spill or leak any Hazardous Materials, or permit any Employees or any Manager Parties to engage in such
activities on or about the Golf Club. However, the foregoing provisions shall not prohibit the transportation to and from,
and use, storage, maintenance and handling within, the Golf Club of substances reasonably, customarily and lawfully used
in the operation of a golf club facility similarly situated as the Golf Club, and provided: (i) such substances shall be properly
labeled, contained, used and stored only in quantities reasonably necessary for such permitted use and operation of the Golf
Club and the ordinary course of Manager’s business therein, strictly in accordance with the Laws, highest prevailing
standards, and the manufacturers’ instructions therefor, and as Owner shall reasonably require, (ii) such substances shall
not be disposed of, released, discharged or permitted to spill or leak in or about the Golf Club (and under no circumstances
shall any Hazardous Material be disposed of within the drains or plumbing facilities in or serving the Golf Club or in any
other public or private drain or sewer, regardless of quantity or concentration), (iii) if any Law or the Golf Club’s trash
removal contractor requires that any such substances be disposed of separately from ordinary trash, Manager shall make
arrangements for such disposal in approved containers directly with a qualified and licensed disposal company at a lawful
disposal site, (iv) any remaining such substances shall be completely, properly and lawfully removed from the Golf Club
upon expiration or earlier termination of this Agreement, and (v) for purposes of removal and disposal of any such
substances, Manager shall be named as the owner and generator, shall obtain a waste generator identification number, and
shall execute all permit applications, manifests, waste characterization documents and any other required forms. Manager
shall take all reasonable precautions and safety measures, in accordance with current technology, to prevent the release of
Hazardous Materials. In the event Manager learns of the discharge upon the Golf Club of any Hazardous Materials, Manager
shall immediately undertake to contain, remove, and abate the discharge. Manager shall and hereby does indemnify, defend,
and hold all Owner Parties harmless from and against any and all Claims, including without limitation, costs and expenses
of response, remedial and corrective work and other clean-up activities, arising out of or in any manner connected with the
release of any Hazardous Materials, or contamination from Hazardous Materials caused, by Manager or any Manager Party,
arising out of or in any manner connected with Manager’s use or occupancy of the Golf Club, or Manager’s failure to
comply with any Laws relating to Hazardous Materials originating or located at the Golf Club which are a result of
Manager’s use or occupancy of the Golf Club, or any and all claims for injury or damage to persons or property arising out
of exposure to Hazardous Materials originating or located at the Golf Club which are a result of Manager’s use or occupancy
of the Golf Club, or the failure of Manager to fulfill its obligations under this Agreement. Notwithstanding the foregoing,
Manager shall not be responsible for any Hazardous Materials present on the Golf Club prior to the Effective Date, unless
deposited thereon by Manager, which become present on the Golf Club after the Effective Date as a result of some event or
condition over which Manager had no control, or which become present on the Land after termination of this Agreement
and all extensions hereof, provided, however, Manager shall immediately notify Owner of any notice received by Manager
from any governmental authority of any actual or threatened violation of any Laws governing the use, storage or disposal
of any Hazardous Materials and shall cooperate with Owner in responding to such notice and correcting or contesting any
alleged violation. The indemnification obligations stated in this subsection shall survive the expiration or termination of
this Agreement.
(i) Mold. Manager acknowledges that Mold is a naturally occurring substance which is found
both indoors and outdoors and can occur in humid environments such as the State of Florida. The presence of Mold may
cause property damage or health problems. Notwithstanding the foregoing, and except as set forth in this subsection, Owner
shall not be liable for any loss, damage or personal injury suffered by Manager, or any of the Manager Parties, due to the
presence of Mold in or around the Golf Club. Manager will use commercially reasonable efforts to ensure that Manager’s
use of the Golf Club shall not cause or contribute to the growth of Mold due to the presence of water within the buildings,
structures, or improvements located on the Golf Club or increase humidity levels within the buildings, structures, or
improvements located on the Golf Club above reasonable and normal humidity levels, keep the buildings, structures, or
improvements located on the Golf Club adequately ventilated at all times, repair any condition of the Golf Club which could
cause or contribute to Mold growth within the buildings, structures, or improvements located on the Golf Club, including
without limitation, any condition which causes or permits water to collect or condense within the buildings, structures, or
improvements located on the Golf Club, maintain indoor humidity within the buildings, structures, or improvements located
on the Golf Club at a reasonable level with respect to Manager’s business and the Permitted Use, and regularly inspect all
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window areas or other areas where water may condense in the buildings, structures, or improvements located on the Golf
Club. Manager shall immediately notify Owner in writing of any visible signs of Mold in the buildings, structures, or
improvements located on the Golf Club, any water leak or excessive water condensation in the buildings, structures, or
improvements located on the Golf Club, or if Manager has reasonable cause to believe that Mold has or will occur in the
buildings, structures, or improvements located on the Golf Club. Manager shall use its best efforts to remove immediately
any excess water caused by such leak and return the Golf Club to its condition as it existed immediately prior to such leak.
Manager relieves Owner from any liability for any personal injury or damages to property caused by or associated with
moisture or the growth of or occurrence of Mold or mildew within the buildings, structure, or improvements located on the
Golf Club. Manager agrees to indemnify and defend Owner Parties and hold Owner Parties harmless from any and all
claims, damages, fines, judgments, penalties, costs, expenses, liabilities or losses resulting from Mold or mildew caused by
the acts or omissions of Manager or Manager Parties. The indemnification obligations stated in this subsection shall survive
the expiration or termination of this Agreement
7. Golf Club Bank Accounts. Manager acknowledges Owner’s substantial interest in fulfilling Owner’s
objectives and goals of safeguarding public funds, maintaining full ownership and control of revenues, preventing fraud,
misuse, or unauthorized transfers, ensuring financial transparency, and allowing orderly access and transition upon
expiration or termination of this Agreement. Accordingly, this Agreement contemplates that the flow of funds received and
disbursed in connection with the operation of the Golf Club shall be conducted through and controlled by the following
bank accounts (collectively, the “Golf Club Bank Accounts”):
(a) Revenue Account. Owner shall create a new business checking account or use an existing bank
account, which shall be solely owned by Owner and titled exclusively in Owner’s name, to receive all Gross Revenue
(“Revenue Account”). Owner and Owner’s authorized representatives shall be the sole signatories and administrators of
the Revenue Account. Manager shall have view-only access to the Revenue Account. All Gross Revenue shall be directed
to the Revenue Account, including without limitation, the applicable point of sale system, merchant processing accounts,
online payment processors, daily deposits, credit card sales, online sales, Bookings, etc.). Manager shall make all applicable
cash deposits related to the Golf Club to the Revenue Account.
(i) Operating Account. Manager shall establish a business checking account for the operation
of the Golf Club (“Operating Account”), at a banking institution of Owner’s choice and reasonably acceptable to Manager,
in Owner’s name or Manager’s name, as directed, in writing, by Owner, in Owner’s sole discretion. The Operating Account
shall be used exclusively for the payment of the Operating Expenses, provided that the balance of the Operating Account
shall not exceed Twenty Thousand Dollars ($20,000.00) (“Operating Account Cap”) at any time unless otherwise
approved, in writing, by Owner or as required by the Operating Plan. Owner shall transfer funds into the Operating Account
on a weekly or bi-weekly basis, subject to the Manager’s submission of a requisition detailing anticipated Operating
Expenses, supported by appropriate documentation and aligned with the Operating Plan. Owner shall delegate control over
the Operating Account to Manager, as Owner’s agent, provided that Manager complies with the Operating Plan and this
Agreement. Manager shall appoint at least two (2) designees to be authorized to sign checks and draw from the Operating
Account, provided that such designees shall be bonded or otherwise insured as the parties hereto agree. No funds collected
by Manager related to the Golf Club and the operation thereof shall be commingled with any other funds of Manager.
Withdrawals from the Operating Account shall be made only by authorized representatives of Manager. All payments made
by Manager under this Agreement shall be made from the Operating Account. The Operating Account shall be established
to require the signature of an authorized representative of Owner for any withdrawals in excess of Five Thousand Dollars
($5,000.00) (the “Threshold Amount”), provided, however, that in the event any budgeted amounts set forth in the
Operating Plan require that Manager make withdrawals in excess of the Threshold Amount (by way of example and not
limitation, payroll expenditures), Owner agrees that the Threshold Amount shall be increased to permit such withdrawals
without further authorization from Owner. Manager shall provide Owner monthly statements reconciling and accounting
for all cash in the Operating Account.
(b) Prohibited Banking Practices. Manager shall be expressly prohibited from engaging in the
following, which each shall constitute a material breach under this Agreement, not subject to any notice or cure period:
skimming or underreporting of cash or credit sales, use of unapproved merchant processors or bank accounts, failure to
record or deposit all Gross Revenue within twenty-four (24) hours, reclassification of revenue to rebates, pass-throughs, or
reimbursements, routing funds to Affiliates or third parties without disclosure, applying unapproved discounts or “comp”
programs, misclassifying personal or unrelated expenses as Operating Expenses, inflating labor costs through ghost
employees, padded hours, or misallocations, transacting with Affiliates at above-market rates without disclosure and
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approval, charging excessive “corporate support” or intercompany service fees, and failing to recognize gift card breakage
or unredeemed balances.
(c) Prepaid Fees. In the event that Manager collects fees, charges or other prepaid amounts for more
than one month in advance (“Prepaid Fees”), Manager shall deliver by wire transfer of immediately available U.S. funds
to the Revenue Account, all such Prepaid Fees collected by Manager.
(d) Working Capital. In accordance with the Operating Plan, Owner agrees to provide the funds as
shall be necessary to pay for all Operating Expenses relating to the Golf Club, and to perform and satisfy Owner’s covenants
and responsibilities under this Agreement. Within five (5) days after Manager's request, Owner shall provide funds to be
deposited in the Operating Account sufficient at all times to ensure the uninterrupted and efficient operation of the Golf
Club. The intent of this provision is to ensure that any shortfall is made up, if necessary, on a month-by-month basis after
review and projection of an individual month’s operating results. If Manager is unable to perform any of Manager’s
obligations under this Agreement because of the failure on the part of Owner to provide the funds in accordance with this
Agreement, such failure of performance on the part of Manager shall not be deemed a default on the part of Manager and
shall not give rise to any right to termination, damages or any other remedy against Manager.
(e) Operating Expenses. Manager shall timely pay all Operating Expenses, including the Management
Fee, subject to the terms and conditions otherwise stated herein, from the Operating Account. All Operating Expenses shall
be funded by the Golf Club’s operations or by Owner in the event of a deficit, except as otherwise stated herein. Manager
shall maintain at all times, in its reasonable judgment, sufficient funds in the Operating Account to satisfy the daily working
capital needs of the Golf Club for the thirty (30) days following the disbursement. Upon the expiration or earlier termination
of this Agreement, all funds remaining in the Operating Account after payment of the Operating Expenses shall be disbursed
by Manager to Owner.
(f) Audit and Inspection Rights. Owner shall have the right to inspect, audit, examine and copy, or to
engage Accountant, at any time, and from time to time, during normal business hours, all files, books, records, costs and
expenses maintained by Manager pertaining to the Golf Club. Manager shall cooperate with Owner and/or Accountant in
their performance of the audit. Moreover, Owner shall have full access rights to all financial systems, books, records, point
of sale system, terminals, bank accounts, and payroll systems. Manager shall provide full cooperation, including granting
system access, login credentials, and staff interviews as requested by Owner. If applicable, Owner may reclassify
improperly reported revenue or expenses, and claw back any overpaid fees.
(g) Financial Integrity Safeguards. Notwithstanding any other provision of this Agreement to the
contrary, Manager acknowledges and agrees that upholding and implementing the highest standards of financial integrity
safeguards for the Golf Club is paramount to Owner, and therefore, the following covenants and restrictions shall apply to
the Golf Club Bank Accounts, respectively:
(i) Owner shall have access to account information regarding the Operating Account so that
Owner may monitor the Operating Account, including without limitation, retaining view access and veto rights.
(ii) No auto-sweeps or blanket authorization shall be incorporated into the Operating Account,
except as otherwise stated herein.
(iii) Any funds in the Operating Account in excess of the Operating Account Cap at the end of
a funding cycle shall, unless otherwise approved by Owner, be transferred to the Revenue Account. Manager shall
implement auto-sweep triggers, of which excess funds in the Operating Account shall be swept back to the Revenue Account
regularly. Manager shall submit a monthly account reconciliation, including ledger entries, copies of paid invoices, payroll
registers, and bank statements to Owner.
(iv) Manager shall implement “Positive Pay” fraud controls.
(v) Manager shall have no withdrawal authority for the Revenue Account and only read-only
online access.
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(vi) All disbursements over the Threshold Amount shall require dual signatures, of which one
signature shall be from City Manager or Owner Representative.
(vii) Manager shall not utilize personal accounts, commingled accounts, or vendor-controlled
payment systems.
(viii) There shall be no Manager-held accounts related to the Golf Club outside of the Golf Club
Bank Accounts.
(ix) All merchant, vendor, and other provider of any goods or services related to the Golf Club
accounts must settle into the Revenue Account.
(x) Owner may, in Owner’s sole discretion, implement other banking account safeguards and
controls during the Term.
8. Compensation.
(a) Management Fee. Owner shall pay to Manager the Management Fee pursuant to Exhibit A for the
overall operation and management of the Golf Club and Manager’s performance of Manager’s duties and obligations stated
herein.
(b) Reimbursable Expenses. Owner shall reimburse Manager for the Reimbursable Expenses.
Manager shall be entitled to such reimbursement of the Reimbursable Expenses directly from the Operating Account at the
time Owner approves, in writing, the applicable Reimbursable Expenses. The Reimbursable Expenses shall be in addition
to the Management Fee and other fees and charges expressed herein. Manager shall provide Owner a monthly report
evidencing the Reimbursable Expenses and their applicable reconciliation. Notwithstanding the foregoing, Manager shall
not incur any Reimbursable Expenses in excess of Five Hundred Dollars ($500.00) per calendar month without the prior
written consent of Owner. In no event will Owner pay for travel time if the timekeeper is engaged in work for another
client. Expenses for lodging, restaurants, telephone calls, and transportation should be incurred in a reasonable and prudent
manner. First-class air travel, luxury hotel accommodations, and lavish meals are not considered prudent and reasonable
and will not be reimbursed by Owner. Prior approval must be obtained from Owner when travel by more than one
timekeeper is deemed necessary and appropriate. Owner will not accept the billing of “miscellaneous” or “other” expenses,
and such expenses will not be considered Reimbursable Expenses. No experts or consultants will be retained on behalf of
Owner without Owner’s prior written authorization.
9. Insurance.
(a) At Owner’s option, Owner shall, of Owner shall cause Manager to select, procure, and maintain
the insurance company and agent and all types of insurance appropriate or advisable for the operation of the Golf Club,
including without limitation, casualty, property damage, commercial liability, business interruption, automobile, liquor
liability/dram shop, environmental impairment (pollution liability), umbrella, errors and omissions, workers compensation
and other applicable types of insurance (collectively, “Golf Club Insurance”), subject to the prior written approval of
Owner. If any of the buildings, structures, additions or other improvements to real property on the Golf Club are located
within a Special Flood Hazard Area (100 year floodplain), flood insurance must also be provided on property for the lesser
of: (i) the estimated replacement value, or (ii) the maximum amount of flood insurance available through the National
Flood Insurance Program and such flood insurance will be considered part of the Golf Club Insurance.
(b) The Golf Club Insurance shall commence prior to the Commencement Date and shall be maintained
in force until the termination or expiration of this Agreement. The amount of property insurance shall be no less than the
estimated replacement value of the property insured. Except as otherwise agreed by Owner, the maximum deductible or
self-insured retention applicable to each of the insurance coverages required by this Section 9 shall be Twenty-Five
Thousand ($25,000) per occurrence. All policies shall be specifically endorsed to provide that such coverage shall not be
canceled or materially reduced without at least thirty (30) days prior written notice to Owner. On or prior to the
Commencement Date, Manager shall deliver to Owner certificates of insurance evidencing that the required insurance
coverages are in force.
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(c) Owner shall be listed as the named insured on the Golf Club Insurance policies. The proceeds from
the Golf Club Insurance policies will be payable to Owner and such other party or parties as Owner shall direct. Manager
shall be named as an additional insured on all of the Golf Club Insurance policies. Owner or Manager shall not have any
claim against the other with respect to the failure of any insurance carrier to provide coverage or protection placed with
such carrier as described in this Agreement. All costs and expenses related to the Golf Club Insurance shall be paid from
Gross Revenue or by Owner in the event of a deficit.
(d) In addition to the Golf Club Insurance, Manager shall maintain its own insurance coverage as
follows: (a) General Liability Coverage in the amount of One Million Dollars ($1,000,000.00) per occurrence and Two
Million Dollars ($2,000,000.00) in the aggregate; (b) Workers Compensation Coverage in the amount of One Million
Dollars ($1,000,000.00); and (c) Umbrella Coverage in the amount of Two Million Dollars ($2,000,000.00) per occurrence
and Four Million Dollars ($4,000,000.00) in the aggregate (collectively, “Manager Insurance”). All costs and expenses
related to the Manager Insurance shall be paid by Manager.
(e) Manager shall cause all Contractors on or before the date on which such Contractor first enters the
Golf Club for any purpose, to procure (or cause to procure) and maintain (or cause to be maintained) during the period of
time any Contractors conduct activities of any kind on the Golf Club, the same insurance policies and under the same terms
and conditions as required by Manager, paying before the same become due all premiums and deductibles therefor.
Moreover, all contracts between Manager and Contractors shall explicitly require the contractor/vendor to indemnify,
defend and hold harmless all Owner Parties from and against any loss, damage, claim, or injury, including without limitation,
damage to the Golf Club. Certificates of such insurance complying with the requirements of this Agreement must be
received by Owner before any work or services commence on the Golf Club. In addition, such insurance shall contain a
waiver of subrogation in favor of Owner. Manager will be responsible for any deductibles within Manager’s provided
insurance, and for all damages to the Golf Club not covered under a builder’s risk policy because of breach of insurance
policy terms and conditions by Contractors.
10. Indemnification.
(a) Indemnification by Manager. To the fullest extent permitted by the Law, Manager shall indemnify,
defend, and hold harmless Owner and all of Owner’s respective Affiliates, subsidiaries, principals, partners, members,
shareholders, manager, officers, directors, agents, consultants, employees, lender(s), servants, successors and assigns, and
any other related party that Owner may hereafter reasonably designate (collectively, all such indemnified parties hereunder
including Owner shall be referred as the “Owner Parties”) from and against any and all claims, demands, damages, losses,
liabilities, costs, fines, penalties, judgments, and expenses (including, without limitation, reasonable attorneys’ fees and
costs of investigation and litigation) (collectively, “Claims”) arising out of, related to, or resulting from (i) the acts,
omissions, negligence, negligence, willful misconduct, or breach of this Agreement by Manager or Manager’s Affiliates or
subsidiaries, or their respective officers, directors, agents, representatives, employees, sublessees, assignees, designees,
Contractors, delegees, concessionaires, franchisees, invitees, or anyone else for whose acts any of them may be liable (each
a “Manager Party” and collectively, “Manager Parties”); (b) any claim for personal injury, bodily injury, death, or
property damage occurring in, on, or about the Golf Club or in connection with the operations or activities of Manager,
except to the extent caused by the sole gross negligence or willful misconduct of Owner; and (c) any violation of the Law
by and Manager Party. The obligations under this subsection shall survive the expiration or earlier termination of this
Agreement and shall not be limited by the amount or type of insurance maintained by Manager or required under this
Agreement.
(b) Indemnification by Owner. To the extent permitted by the Law, and subject to the limitations set
forth in this Agreement and in Section 768.28, Florida Statutes, Owner shall indemnify and hold harmless Manager, and
Manager’s officers, directors, employees, and agents (collectively, “Manager Indemnitees”) from and against any third-
party claims, damages, losses, or liabilities (excluding consequential, special, punitive, or exemplary damages) actually
incurred by Manager Indemnitees and directly resulting from Owner’s gross negligence or willful misconduct in connection
with the operation or condition of the Golf Club, but only to the extent that such indemnification is not otherwise prohibited
or limited by the Law. As a condition precedent to Owner’s indemnification obligations under this subsection, Manager
shall promptly notify Owner in writing of any claim, demand, or legal proceeding for which indemnification is sought and
shall provide reasonable cooperation in the defense. Owner shall have the right, but not the obligation, to assume the defense
and settlement of any such claim with legal counsel of Owner’s choosing, at Owner’s own expense. Manager shall not
settle, compromise, or admit liability with respect to any such claim without the prior written consent of Owner, which shall
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not be unreasonably withheld. Notwithstanding anything to the contrary herein: (i) Owner shall have no obligation to
indemnify Manager Indemnitees for any claims arising out of or relating to (a) the acts, omissions, negligence, or breach of
this Agreement by Manager or any Manager Party; (b) any environmental condition, release of Hazardous Material, or
violation of environmental Laws, arising during the Term, unless directly caused by Owner’s gross negligence or willful
misconduct; or (c) conditions of the Golf Club not caused or created by Owner; (ii) Owner’s total aggregate liability under
this subsection shall not exceed the lesser of (x) the amount of insurance coverage actually available and maintained by
Owner as required under this Agreement, or (y) the limits of liability set forth in Section 768.28, Florida Statutes; and (iii)
nothing in this Agreement shall be construed as a waiver of Owner’s sovereign immunity or an expansion of liability beyond
the limitations imposed by the Law. The indemnification obligation under this subsection shall survive the expiration or
earlier termination of this Agreement only with respect to claims arising from events occurring during the Term.
11. Default and Remedies.
(a) Default. Owner shall have the right to terminate this Agreement upon the occurrence of any of the
following events, each of which shall constitute a material breach by Manager (each, a “Termination Event”):
(i) Failure to Maintain Operational Standards. Manager fails to maintain the Golf Club,
including any portion related thereto, in accordance with the Golf Club Operating Standard and/or the Operating Plan (as
applicable) and fails to cure such default within ten (10) days after written notice from Owner.
(ii) Failure to Perform. Manager fails to comply with a term, condition, provision, or covenant
of this Agreement, or Manager violates any rules and regulations now or hereafter established for the operation of the Golf
Club and such failure is not cured within fifteen (15) days after receipt of notice from Owner advising Manager of such
default (provided, if the nature of Manager’s failure is such that more time is reasonably required in order to cure, Manager
shall not be in default if Manager commences to cure within such period and thereafter diligently seeks to cure such failure
to completion within forty-five (45) days following notice thereof).
(iii) Financial Mismanagement. Manager fails to remit any Gross Revenue directly to the
Revenue Account, submit timely and accurate financial reports, maintain required separate Golf Club Bank Accounts, or
comply with audit or inspection rights, and fails to cure such default within ten (10) days after written notice from Owner.
(iv) Reputational or Regulatory Harm. Manager engages in conduct (or permits conduct by
any Manager Party) that results in material reputational damage to the Golf Club or Owner, public scandal, adverse media
coverage, or any regulatory citation, fine, or enforcement action.
(v) Unauthorized Closure or Abandonment. Manager ceases operations of the Golf Club for
more than forty-eight (48) hours without Owner’s prior written approval, except where such closure is excused by Excusable
Delay.
(vi) Gross Negligence, Willful Misconduct, or Fraud. Manager engages in conduct constituting
gross negligence, willful misconduct, criminal activity, fraud, misappropriation of funds, or a knowing and material
violation of the Law, whether or not such conduct results in civil or criminal liability.
(b) Remedies. Upon the occurrence of a Termination Event and the expiration of any applicable cure
period set forth herein, Owner may pursue any one or more of the following remedies, separately or concurrently or in any
combination:
(i) Liquidated Damages. If Owner terminates this Agreement based on any of the Termination
Events, Manager shall pay Owner the following liquidated damages, as compensation for the harm caused by such breach:
(1) Operational or Maintenance Breach. $60,000.00
(2) Failure to Perform. $60,000.00
(3) Financial Mismanagement. $90,000.00
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(4) Reputational or Regulatory Harm. $60,000.00
(5) Unauthorized Closure or Abandonment. $60,000.00
(6) Gross Negligence, Willful Misconduct, or Fraud. $180,000.00
The parties agree that the aforementioned amounts are a reasonable estimate of the actual damages that Owner would incur,
which would be difficult to quantify at the time of contracting, and that such amounts shall not be construed as a penalty.
In the event of termination pursuant to this Section 11, Owner shall have the right to withhold any unpaid amounts due to
Manager under this Agreement, including but not limited to, the Base Management Fee and the Incentive Fee, in an amount
sufficient to offset the applicable liquidated damages. If Manager has provided a performance bond, fidelity bond, or other
financial security, Owner shall have the right to draw upon such bond to satisfy the liquidated damages and any other
amounts due to Owner.
(c) Additional Remedies; Sovereign Immunity Preserved. The remedies set forth in this Section 11
shall be in addition to any other remedies available to Owner under this Agreement or at law or in equity, including the right
to seek injunctive or equitable relief. Nothing in this Agreement shall be construed as a waiver or limitation of Owner’s
sovereign immunity or the monetary limits of liability set forth in Section 768.28, Florida Statutes, as may be amended.
(d) Limitation or Default; Notices and Cure Periods. Notwithstanding anything contained herein to
the contrary, in no event shall either party hereto be obligated to give notice of a substantially similar event of default, and
an opportunity to cure said default more than once in any consecutive six (6) month period. Upon the second such
occurrence within six (6) months, no notice or cure period need be provided.
12. Assignment Upon Expiration or Termination. In the event of any expiration or termination of this
Agreement, Manager shall fully cooperate with Owner by promptly assigning and transferring to Owner any Operating
Contract, Permits, Golf Club Bank Accounts, software programs (including passwords), websites (including passwords), or
other forms of property that may be held in the name of Manager, rather than Owner, but which properly constitute the
property of Owner. Any such transfers and assignments shall be made without representation or warranty to Owner, except
for the fact that Manager has not previously assigned or transferred the same, and that Manager is assigning and transferring
all of Manager’s right, title and interest thereto. Owner must accept all Personal Property and assume all obligations incurred
and entered into on Owner’s or the Golf Club’ behalf by Manager for the operation and maintenance of the Golf Club as
long as such Personal Property was not procured and obtained in violation of this Agreement.
13. Casualty; Condemnation. In the event fire, windstorm or other casualty shall damage or destroy the Golf
Club or any portion thereof, or if the whole of the Golf Club shall be taken or condemned in any eminent domain,
condemnation, compulsory acquisition or similar proceeding by any competent authority for any public or quasi-public use
or purpose, or if such portion which is materially all thereof shall be taken or condemned and as a result the Golf Club can
no longer be operated as contemplated herein in an economically viable manner, Owner may, at Owner’s option, terminate
this Agreement upon at fifteen (15) days advance written notice to Manager without any claim of liability against Owner
by Manager based on such termination. Upon such termination, neither party shall have any further obligation to the other
party hereunder, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of
such termination.
14. Transfer, Assignment or Encumbrances of Owner’s Interest. Owner’s right to sell, convey, transfer,
mortgage, pledge, hypothecate, assign or otherwise dispose of Owner’s interest in this Agreement and/or in and to the Golf
Club or any portion related thereto shall be unrestricted, provided that the party to whom or which the Golf Club are sold,
conveyed, transferred, assigned or otherwise disposed of shall expressly assume all of Owner’s obligations hereunder, and,
from and after the date of any such sale, conveyance, transfer or assignment by Owner, all obligations under this Agreement
of the party selling, conveying, transferring, assigning or otherwise disposing shall cease and terminate as of the effective
date of such assignment, and Manager shall look only and solely to the party to whom or which the Golf Club are sold,
conveyed, transferred, assigned or otherwise disposed of for performance of all of Owner’s duties and obligations under
this Agreement. Accordingly, Owner may assign, transfer, sell, convey, mortgage, pledge, hypothecate or otherwise
encumber this Agreement, or all or any part of Owner’s rights and interests in the Golf Club, without the consent of Manager.
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15. Subordination and Attornment. This Agreement shall be subject and subordinated at all times to all of the
liens of each and every mortgage and deed of trust in any amount or amounts whatsoever now or hereafter existing and
encumbering the Golf Club, and to all modifications, renewals and replacements thereto without the necessity of having
further instruments executed by Manager to effect such subordination. Manager, within ten (10) days following demand,
shall further evidence Manager’s subordination by executing any documents reasonably required by Owner or any
applicable lender to further evidence the subordination of this Agreement.
16. Assignment. Manager acknowledges that Owner has agreed to allow Manager to manage and operate the
Golf Club based upon certain factors which are of material importance and consideration to Owner, and that one such factor
is the particular identity of Manager and that any change in such identity would likely result in substantially less value for
Owner in respect of this Agreement, thereby substantially impairing the consideration to Owner to enter into this Agreement
with Manager. Accordingly, Manager may not, without the prior written consent of Owner, which consent may be withheld
in Owner’s sole discretion, assign this Agreement, or any interest therein. Consent by Owner to one assignment shall not
destroy or waive this provision and all other assignments shall likewise be made only upon the prior written consent of
Owner. Any attempt by Manager to assign this Agreement or any interest therein without Owner’s written consent shall be
null and void ab initio and of no effect. Furthermore, such an attempt shall constitute a Termination Event constituting
Gross Negligence, Willful Misconduct, or Fraud.
17. Notices. All notices, requests, consents, instructions, and communications required or permitted to be given
pursuant to the terms of this Agreement shall be in writing and shall be (as elected by the party giving such notice) hand-
delivered by messenger providing signed receipt for delivery, nationally recognized overnight courier service, or sent by
email transmission providing proof of transmission (provided, that a copy of such email notice is also forwarded by one of
the other methods herein provided), and will be deemed delivered (a) on the date of delivery if by personal delivery or
courier service; (b) on the date of transmission with confirmed answer back if by e-mail if transmitted before 5:00 p.m. on
a business day, and on the next business day if transmitted after 5:00 p.m. or on a non-business day with a copy of such
notice also sent by one of the other described methods in this Section. Rejection, refusal to accept, or inability to deliver of
which no notice was given shall be deemed to be a receipt of such notice, request or other communication. The respective
attorneys for Owner and Manager are hereby authorized to give any notice pursuant to this Agreement on behalf of their
respective client. Owner Representative must be carbon copied on all communications to Owner unless otherwise specified,
in writing, by City Manager. Notices will be delivered at the following addresses/email addresses, subject to the right of
any party to change the address/email address at which it is to receive notice by written notice to the other party complying
with this Section:
To Owner:
City of Ocoee
Attention: Craig Shadrix, City Manager
1 North Bluford Avenue
Ocoee, FL 34761
To Manager:
18. EXCULPATION OF LIABILITY. EXCEPT AS OTHERWISE STATED HEREIN, (A) THE GOLF
CLUB IS TO BE USED AT MANAGER’S SOLE RISK; (B) OWNER SHALL NOT BE LIABLE TO MANAGER OR
ANY MANAGER PARTIES FOR THE CARE OR THE PROTECTION OF THE GOLF CLUB, INCLUDING WITHOUT
LIMITATION, THE PERSONAL PROPERTY, OR FOR ANY LOSS OR DAMAGE OF WHATEVER KIND TO THE
GOLF CLUB OR THE PERSONAL PROPERTY FOR ANY REASON WHATSOEVER, INCLUDING WITHOUT
LIMITATION, OWNER’S OR OWNER PARTIES’ NEGLIGENCE; (C) ALL PERSONAL PROPERTY BROUGHT
ONTO THE GOLF CLUB BY MANAGER OR ANY MANAGER PARTIES SHALL BE AT THE SOLE RISK OF
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MANAGER, AND OWNER SHALL NOT BE RESPONSIBLE FOR MONEY, JEWELRY, AUTOMOBILES, OR
OTHER PERSONAL PROPERTY LOST IN OR STOLEN FROM THE GOLF CLUB; (D) OWNER SHALL NOT BE
LIABLE FOR ANY LOSS, INJURY OR DAMAGE TO PERSONS USING THE GOLF CLUB OR AUTOMOBILES OR
OTHER PROPERTY THEREIN, IT BEING AGREED THAT, TO THE FULLEST EXTENT PERMITTED BY THE
LAWS, THE USE OF THE GOLF CLUB SHALL BE AT THE SOLE RISK OF MANAGER AND MANAGER PARTIES;
(E) MANAGER IS SOLELY RESPONSIBLE FOR DAMAGE TO BUILDINGS, FENCES, STRUCTURES, AND ALL
OTHER AREAS OF THE GOLF CLUB CAUSED BY MANAGER OR MANAGER PARTIES, AND IN THE EVENT
OF ANY SUCH DAMAGE OR INJURY, ALL EXPENSES INCURRED BY OWNER OR ANY OWNER PARTY TO
REPAIR OR RESTORE THE GOLF CLUB, OR ANY PORTION THERETO (AS APPLICABLE) SHALL BE PAID BY
MANAGER. NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, THERE SHALL BE
NO PERSONAL LIABILITY FOR ANY DEFAULT OR OTHERWISE ON THE PART OF OWNER OR OWNER
PARTIES, OR THEIR RESPECTIVE LEGAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS AS THE
CASE MAY BE, WITH RESPECT TO ANY OF THE TERMS, PROVISIONS, COVENANTS AND CONDITIONS OF
THIS AGREEMENT OR OTHERWISE, AND THAT MANAGER SHALL LOOK SOLELY TO THE ESTATE,
PROPERTY AND EQUITY OF OWNER IN THE GOLF CLUB AND SUBJECT TO THE PRIOR RIGHTS OF ANY
LENDERS FOR THE SATISFACTION OF EACH AND EVERY REMEDY OF MANAGER IN THE EVENT OF ANY
BREACH OF ANY OF THE TERMS, PROVISIONS, COVENANTS AND CONDITIONS OF THIS AGREEMENT TO
BE PERFORMED BY OWNER, OR IN THE EVENT OF ANY OTHER CLAIM WHICH MANAGER MAY ALLEGE
AGAINST OWNER OR OWNER PARTIES, OR THEIR RESPECTIVE LEGAL REPRESENTATIVES, HEIRS,
SUCCESSORS AND ASSIGNS, WHICH EXCULPATION OF PERSONAL LIABILITY SHALL BE ABSOLUTE AND
WITHOUT EXCEPTION. IN FURTHERANCE OF THE FOREGOING, OWNER’S AGGREGATE LIABILITY
ARISING OUT OF THIS AGREEMENT AND/OR MANAGER’S USE OF THE GOLF CLUB WILL NOT EXCEED
THE AGGREGATE AMOUNT OF THREE (3) MONTHS OF THE BASE MANAGEMENT FEE. OWNER CAN ONLY
BE LIABLE FOR BREACH OF THIS AGREEMENT AND WILL NOT BE LIABLE FOR ANY NEGLIGENT ACT OR
OMISSION BY OWNER, ANY OWNER PARTY, OR THE ACTS OF ANY OTHER PERSON OR ENTITY,
INCLUDING WITHOUT LIMITATION, MANAGER AND MANAGER PARTIES, OR ANY PERSON OR ENTITY
THAT PROVIDES GOODS OR SERVICES IN CONNECTION WITH OR AS A RESULT OF OWNER’S
PERFORMANCE OF OWNER’S OBLIGATIONS UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES
WILL OWNER OR ANY OWNER PARTY BE LIABLE FOR ANY LOST PROFITS, REVENUES, INFORMATION,
OR DATA, OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES, INCURRED BY MANAGER OR ANY MANAGER PARTY PURSUANT TO THIS AGREEMENT OR
BY THE TRANSACTION CONTEMPLATED HEREIN, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY
(INCLUDING CONTRACT, TORT, OR WARRANTY), OR AS A RESULT OF OWNER’S EXERCISE OF OWNER’S
RIGHTS UNDER THIS AGREEMENT, EVEN IF OWNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND MANAGER, ON BEHALF OF MANAGER AND ALL MANAGER PARTIES, HEREBY WAIVES
ALL CLAIMS AGAINST OWNER AND ALL OWNER PARTIES FOR SUCH LOSSES AND DAMAGES. SUCH
EXCULPATION OF LIABILITY AND WAIVER DESCRIBED HEREIN SHALL BE ABSOLUTE AND WITHOUT
EXCEPTION WHATSOEVER AND SHALL SURVIVE THE EXPIRATION OR SOONER TERMINATION OF THIS
AGREEMENT.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED BY AND CONTROLLED
UNDER THE LAWS OF THE STATE OF FLORIDA. VENUE FOR ANY DISPUTE BETWEEN THE PARTIES
ARISING IN CONNECTION WITH THIS AGREEMENT SHALL LIE EXCLUSIVELY WITHIN ORANGE COUNTY,
FLORIDA.
20. JURY TRIAL WAIVER. WITHOUT DIMINISHING THE PARTIES’ AGREEMENT TO MEDIATION
AND BINDING ARBITRATION AS SET FORTH HEREIN, IN THE EVENT THAT THE PARTIES ARE RESOLVED
TO LITIGATE ANY DISPUTE ARISING HEREUNDER IN A COURT OF LAW, IN THE INTEREST OF OBTAINING
A SPEEDIER AND LESS COSTLY HEARING OF ANY DISPUTE, OWNER, MANAGER, AND ALL
GUARANTORS EACH WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS AGREEMENT, THE RELATIONSHIP OF OWNER AND MANAGER HEREUNDER, MANAGER’S USE,
MANAGEMENT, OR OPERATION OF THE GOLF CLUB, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
EXCEPT AS OTHERWISE STATED HEREIN, ALL COSTS AND EXPENSES, INCLUDING REASONABLE
ATTORNEYS’ FEES, RELATED TO A DISPUTE BY THE PARTIES UNDER THIS AGREEMENT, INCLUDING
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WITHOUT LIMITATION, MEDIATION, ARBITRATION, LITIGATION, OR OTHER PROCEEDING, SHALL BE
BORNE BY EACH PARTY HERETO, RESPECTIVELY, PROVIDED, HOWEVER, THE PARTIES SHALL EQUALLY
SPLIT THE COSTS AND FEES CHARGED BY THE MEDIATOR AND ARBITRATOR.
21. RADON GAS. RADON IS A NATURALLY OCCURRING GAS THAT, WHEN IT HAS
ACCUMULATED IN A BUILDING IN SUFFICIENT QUALITIES, MAY PRESENT HEALTH RISKS TO PERSONS
WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE
GUIDELINES HAVE BEEN FOUND IN THE STATE. ADDITIONAL INFORMATION REGARDING RADON AND
RADON TESTING MAY BE OBTAINED FROM THE COUNTY’S PUBLIC HEALTH DEPARTMENT.
22. Reservation of Rights. Owner, in addition to all other rights which Owner may have under this Agreement,
hereby expressly reserves all rights in connection with the Golf Club and all other portions of the Land not expressly and
specifically granted to Manager under this Agreement and Manager hereby waives all claims for damages, loss, expenses,
liability, eviction, or abatement Manager has or may have against Owner on account of Owner’s exercise of Owner’s
reserved rights. Owner reserves the unrestricted right, from time to time, to expand or modify the Golf Club, and/or to
construct new or additional buildings, improvements, parking areas, driveways, access roads or other areas therein, and/or
to use other areas of the Golf Club. Manager acknowledges that this Agreement does not create, nor will Manager have,
any express or implied easements for, or other rights to, air, light, or view over or about the Golf Club, and all of the Personal
Property shall be within the boundaries of the space of the Golf Club.
23. Waiver. The failure of any party hereto to enforce any provision of this Agreement shall not be construed
to be a waiver of such or any other provision, nor in any way to affect the validity of all or any part of this Agreement or
the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.
24. No Third-Party Beneficiaries. This Agreement is not intended and shall not be deemed or construed to
convey any rights, powers or privileges on any person, firm, partnership, corporation or other entity not a party hereto
except as may be expressly provided herein to the contrary. In that regard, no member or user of the Golf Club shall be
entitled to enforce the terms and provisions of this Agreement.
25. CONFLICT OF INTEREST. MANAGER HEREBY COVENANTS THAT DURING THE TERM,
MANAGER WILL NOT EMPLOY ANY PERSON TO ADMINISTER ANY PORTION OF THIS AGREEMENT THAT
HAS AN INTEREST, DIRECT OR INDIRECT, WHICH WOULD CONFLICT IN ANY MANNER OR DEGREE WITH
THE PERFORMANCE OF SERVICES REQUIRED UNDER THIS AGREEMENT.
26. EXAMINATION. SUBMISSION OR PREPARATION OF THIS AGREEMENT BY OWNER SHALL
NOT CONSTITUTE AN OFFER BY OWNER OR OPTION FOR THE GOLF CLUB, PROVIDED, HOWEVER, THIS
AGREEMENT SHALL CONSTITUTE AN OFFER, ACCEPTANCE OR CONTRACT ONLY AS EXPRESSLY
SPECIFIED BY THE TERMS OF THIS SECTION. IN THE EVENT THAT MANAGER EXECUTES THIS
AGREEMENT FIRST, SUCH ACTION SHALL CONSTITUTE AN OFFER TO OWNER, WHICH MAY BE
ACCEPTED BY OWNER BY EXECUTING THIS AGREEMENT, AND ONCE THIS AGREEMENT IS SO
EXECUTED BY OWNER, SUCH OFFER MAY NOT BE REVOKED BY MANAGER AND THIS AGREEMENT
SHALL BECOME A BINDING CONTRACT. IN THE EVENT THAT OWNER EXECUTES THIS AGREEMENT
FIRST, SUCH ACTION SHALL CONSTITUTE AN OFFER TO MANAGER, WHICH MAY BE ACCEPTED BY
MANAGER ONLY BY DELIVERY TO OWNER OF A FULLY EXECUTED COPY OF THIS AGREEMENT,
TOGETHER WITH A FULLY EXECUTED COPY OF ANY AND ALL ADDENDA AND OTHER APPLICABLE
DOCUMENTS PROVIDED THAT IN THE EVENT THAT ANY PARTY OTHER THAN OWNER MAKES ANY
MATERIAL OR MINOR ALTERATION OF ANY NATURE WHATSOEVER TO ANY OF SAID DOCUMENTS,
THEN SUCH ACTION SHALL MERELY CONSTITUTE A COUNTEROFFER, WHICH OWNER, MAY, AT
OWNER’S ELECTION, ACCEPT OR REJECT. NOTWITHSTANDING THAT THE COMMENCEMENT DATE MAY
OCCUR AND THE TERM MAY COMMENCE AFTER THE DATE OF EXECUTION OF THIS AGREEMENT, UPON
DELIVERY AND ACCEPTANCE OF THIS AGREEMENT IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT, THIS AGREEMENT SHALL BE FULLY EFFECTIVE, AND IN FULL FORCE AND EFFECT AND
VALID AND BINDING AGAINST THE PARTIES IN ACCORDANCE WITH, BUT ON AND SUBJECT TO, THE
TERMS AND CONDITIONS OF THIS AGREEMENT.
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27. Amendment. No amendment, modification, or variation of this Agreement or any of its terms or provisions
shall be effective, binding, or valid unless and until it is reduced to writing and executed by Owner and Manager
28. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed
an original, and all of which, when taken together, shall constitute one and the same instrument. Signatures delivered by
facsimile or electronic mail shall be effective for purposes of this Agreement.
29. Severability. If any clause or provision of this Agreement is illegal, invalid, or unenforceable under
applicable present or future Laws effective during the Term, the remainder of this Agreement shall not be affected. In lieu
of each clause or provision of this Agreement, which is illegal, invalid, or unenforceable, there shall be added as a part of
this Agreement a clause or provision as nearly identical as may be possible and as may be legal, valid, and enforceable.
30. SUCCESSORS AND ASSIGNS. THIS AGREEMENT IS PERSONAL TO OWNER AND MANAGER
AND EXCEPT AS OTHERWISE PROVIDED HEREIN, MANAGER SHALL HAVE NO RIGHT, POWER OR
AUTHORITY TO ASSIGN THIS AGREEMENT, OR ANY PORTION HEREOF OR ANY MONIES DUE OR TO
BECOME DUE HEREUNDER, OR TO DELEGATE ANY DUTIES OR OBLIGATIONS ARISING HEREUNDER,
EITHER VOLUNTARILY, INVOLUNTARILY OR BY OPERATION OF LAW, WITHOUT THE PRIOR WRITTEN
APPROVAL OF OWNER. EXCEPT AS OTHERWISE PROVIDED HEREIN, MANAGER SHALL NOT HAVE ANY
RIGHT, POWER OR AUTHORITY TO SUBCONTRACT ITS SERVICES, OR ANY PORTION THEREOF, WITHOUT
THE PRIOR WRITTEN APPROVAL OF OWNER. ANY APPROVAL BY OWNER OF ANY SUBCONTRACT OF
MANAGER'S SERVICES OR ANY PART THEREOF SHALL NOT BE CONSTRUED TO MAKE OWNER A PARTY
TO SUCH SUBCONTRACT OR TO EXPOSE OWNER TO ANY CLAIMS OR LIABILITIES ARISING
THEREUNDER. WITHOUT WAIVER OF THE FOREGOING PROVISIONS, ALL OF THE RIGHTS, BENEFITS,
DUTIES, LIABILITIES AND OBLIGATIONS OF THE PARTIES HERETO SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
31. PERSONS INDEMNIFIED. ALL AGREEMENTS BY EITHER MANAGER OR OWNER TO
INDEMNIFY, DEFEND, AND/OR HOLD THE OTHER HARMLESS CONTAINED IN THIS AGREEMENT SHALL
INURE TO THE BENEFIT NOT ONLY OF THE RESPECTIVE INDEMNITEE BUT ALSO TO THAT OF ITS AND
THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATES, AND SHALL ALSO INURE TO THE BENEFIT OF THE
ELECTED OFFICIALS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS OF ANY
OF THE FOREGOING.
32. TIME. TIME IS OF THE ESSENCE OF THIS AGREEMENT AND EACH AND ALL OF ITS
PROVISIONS.
33. AGENCY. THE RELATIONSHIP OF OWNER AND MANAGER SHALL BE THAT OF PRINCIPAL
AND AGENT. MANAGER IS ENTERING INTO THIS AGREEMENT AS AN INDEPENDENT CONTRACTOR TO
PROVIDE THE SERVICES SET FORTH IN THIS AGREEMENT. MANAGER ACKNOWLEDGES THAT IT IS
ACQUIRING NO RIGHTS WHATSOEVER IN THE GOLF CLUB, OR ANY PORTION THEREOF (INCLUDING THE
GOLF CLUB AND ANY INTELLECTUAL PROPERTY) OR THE EQUIPMENT AND SUPPLIES, EXCEPT A
NONEXCLUSIVE AND REVOCABLE LICENSE, DURING THE TERM, TO ENTER UPON THE GOLF CLUB AND
USE THE EQUIPMENT AND SUPPLIES IF, AND TO THE EXTENT REASONABLY NECESSARY, TO CARRY OUT
MANAGER’S OBLIGATIONS PURSUANT TO THIS AGREEMENT. IN ACKNOWLEDGING THAT MANAGER IS
ACQUIRING NO RIGHTS WHATSOEVER IN THE GOLF CLUB (INCLUDING ANY INTELLECTUAL PROPERTY)
OR THE EQUIPMENT AND SUPPLIES, MANAGER FURTHER AGREES THAT IT WILL NOT ASSERT, IN ANY
LEGAL ACTION OR OTHERWISE, ANY RIGHT OR INTEREST IN THE GOLF CLUB, OR ANY PORTION
THEREOF. IN NO EVENT SHALL MANAGER ALTER OR IMPROVE ANY PORTION OF THE GOLF CLUB
EXCEPT AS DIRECTED BY THE OWNER OR AS EXPRESSLY PERMITTED UNDER THIS AGREEMENT.
34. Miscellaneous. All provisions herein and all obligations of Owner and Manager pursuant to this Agreement
which are to be performed or apply to circumstances subsequent to the expiration or termination of this Agreement, and
every indemnity contained herein, shall survive the expiration or termination of this Agreement. All rights, remedies,
powers, and privileges conferred under this Agreement on the parties shall be cumulative of and in addition to, but not
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restrictive of or in lieu of, those conferred by law. No inference shall be drawn from the addition, deletion or modification
of any language contained in any prior draft of this Agreement. Wherever in this Agreement Owner is to grant its approval
or consent or make a decision or determination, such approval and/or consent may be granted or withheld, and such decision
or determination shall be made in Owner’s sole, absolute and unfettered judgment and discretion, unless this Agreement
expressly provides otherwise, and any such approval, consent, decision or determination shall not be subject to arbitration
or other review, and such approval, consent, decision, and/or determination must be granted in writing to be effective.
35. No Recordation. Manager shall not record this Agreement or a memorandum or short form thereof unless
required, in writing, by Owner, and Owner may record this Agreement, a memorandum or short form thereof, in Owner’s
sole discretion.
36. Confidentiality. Subject to the Laws, Manager acknowledges that the terms and conditions of this
Agreement are to remain confidential for Owner’s benefit and may not be disclosed by Manager to anyone other than
Manager’s professional advisors and lenders, by any manner or means, directly or indirectly, without Owner’s prior written
consent. The consent by Owner to any disclosures shall not be deemed to be a waiver on the part of Owner of any prohibition
against any future disclosure.
37. Entire Agreement and Modification. This Agreement and all recitals, exhibits, schedules, and riders
attached hereto (if any) are incorporated herein and by this reference made part of this Agreement as if fully set forth herein,
and all such documents and instruments constitute the entire agreement between Owner and Manager, and no
representations, inducements, promises, or agreements, oral or otherwise, between the parties not embodied in this
instrument shall be of any force or effect, and all other representations, negotiations and agreements, written and oral, are
superseded by this Agreement and are of no force or effect.
38. OFAC. MANAGER IS NOT, NOR WILL MANAGER BECOME A PERSON WITH WHOM U.S.
PERSONS OR ENTITIES ARE RESTRICTED FROM DOING BUSINESS UNDER REGULATIONS OF THE OFFICE
OF FOREIGN ASSET CONTROL (“OFAC”) OF THE DEPARTMENT OF THE TREASURY (INCLUDING THOSE
NAMED ON OFAC’S SPECIALLY DESIGNATED AND BLOCKED PERSONS LIST) OR UNDER ANY STATUTE,
EXECUTIVE ORDER (INCLUDING THE SEPTEMBER 24, 2001, EXECUTIVE ORDER BLOCKING PROPERTY
AND PROHIBITING TRANSACTIONS WITH PERSONS WHO COMMIT, THREATEN TO COMMIT, OR SUPPORT
TERRORISM), OR OTHER GOVERNMENTAL ACTION AND NEITHER MANAGER NOR ANY MANAGER
PARTY IS OR WILL BECOME A PERSON WHO VIOLATES THE U.S. FOREIGN CORRUPT PRACTICES ACT 15
U.S.C. §§78DD-1, 78DD-2 AND 78DD-3, OR THE U.K. BRIBERY ACT 2010 (C.23) (BOTH, AS AMENDED FROM
TIME TO TIME) OR ANY OTHER SIMILAR LAW OR LEGAL REQUIREMENT AND NEITHER MANAGER NOR
ANY MANAGER PARTY WILL ENGAGE IN ANY DEALINGS OR TRANSACTIONS OR BE OTHERWISE
ASSOCIATED WITH ANY SUCH PERSONS.
39. CONVICTED VENDOR LIST. MANAGER ACKNOWLEDGES RECEIPT OF THE FOLLOWING
NOTICE, AND MANGER SHALL ABIDE BY THE TERMS AND CONDITIONS OF SAID NOTICE AT ALL TIMES
DURING THE TERM: “A PERSON OR AFFILIATE WHO HAS BEEN PLACED ON THE CONVICTED VENDOR
LIST FOLLOWING CONVICTION FOR A PUBLIC ENTITY CRIME MAY NOT SUBMIT A BID ON A CONTRACT
TO PROVIDE ANY GOODS OR SERVICES TO A PUBLIC ENTITY, MAY NOT SUBMIT A BID ON A CONTRACT
WITH A PUBLIC ENTITY FOR THE CONSTRUCTION OR REPAIR OF A PUBLIC BUILDING OR PUBLIC WORK,
MAY NOT SUBMIT BIDS ON LEASES OF REAL PROPERTY TO A PUBLIC ENTITY, MAY NOT BE AWARDED
OR PERFORM WORK AS A CONTRACTOR, SUPPLIER, SUBCONTRACTOR, R CONSULTANT UNDER A
CONTRACT WITH ANY PUBLIC ENTITY, AND MAY NOT TRANSACT BUSINESS WITH ANY PUBLIC ENTITY
IN EXCESS OF FIFTEEN THOUSAND DOLLARS ($15,000.00) FOR A PERIOD OF THIRTY-SIX (36) MONTHS
FROM THE DATE OF BEING PLACED ON THE CONVICTED VENDOR LIST.”
40. Excusable Delay. The performance by either party to this Agreement of its respective obligations shall be
excused by an Excusable Delay attributable to events beyond that party’s control for a period of time that is sufficient for
the party to perform its obligations after the cessation of the Excusable Delay event acting in a diligent, commercially
reasonable manner.
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41. CITY COMMISSION APPROVAL. THIS AGREEMENT IS EXPRESSLY CONTINGENT UPON
OWNER OBTAINING WRITTEN APPROVAL FROM THE CITY COMMISSION OF OCOEE (“CITY
COMMISSION”) AS SHALL BE EVIDENCED BY THE EXECUTION OF THIS AGREEMENT BY CITY
COMMISSION (“CITY COMMISSION APPROVAL”). MANAGER ACKNOWLEDGES THAT OWNER’S
OBLIGATIONS UNDER THIS AGREEMENT ARE CONDITIONED UPON OWNER OBTAINING CITY
COMMISSION APPROVAL. OWNER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN
CITY COMMISSION APPROVAL AS PROMPTLY AS PRACTICABLE FOLLOWING THE EFFECTIVE DATE,
PROVIDED THAT OWNER SHALL NOT BE REQUIRED TO MODIFY OWNER’S EXISTING FINANCING
ARRANGEMENTS, INCUR ANY ADDITIONAL OBLIGATIONS, OR ACCEPT ANY CONDITIONS THAT OWNER,
IN OWNER’S SOLE DISCRETION, DEEMS UNREASONABLE OR ADVERSE. MANAGER AGREES TO
PROVIDE, UPON OWNER’S AND/OR CITY COMMISSION’S REQUEST, ANY DOCUMENTATION, FINANCIAL
STATEMENTS, OR OTHER INFORMATION REASONABLY REQUIRED BY CITY COMMISSION TO
FACILITATE THE APPROVAL PROCESS. OWNER SHALL NOTIFY MANAGER, IN WRITING, UPON
OBTAINING CITY COMMISSION APPROVAL. IF THE OWNER DOES NOT RECEIVE CITY COMMISSION
APPROVAL WITHIN THIRTY (30) DAYS FROM THE EFFECTIVE DATE (THE “APPROVAL PERIOD”),
SUBJECT TO ANY EXTENSION OF THE APPROVAL PERIOD AS STATED HEREIN, EITHER PARTY MAY
TERMINATE THIS AGREEMENT BY PROVIDING WRITTEN NOTICE TO THE OTHER PARTY WITHIN FIVE (5)
DAYS AFTER THE EXPIRATION OF THE APPROVAL PERIOD. IF THIS AGREEMENT IS TERMINATED
PURSUANT TO THIS PROVISION, NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS, OBLIGATIONS,
OR LIABILITIES UNDER THIS AGREEMENT, EXCEPT FOR OBLIGATIONS THAT EXPRESSLY SURVIVE
TERMINATION. OWNER RESERVES THE RIGHT TO EXTEND THE APPROVAL PERIOD BY ISSUING
WRITTEN NOTICE TO MANAGER. SUCH EXTENSION SHALL NOT EXCEED SIXTY (60) DAYS FROM THE
ORIGINAL DEADLINE, UNLESS OTHERWISE MUTUALLY AGREED UPON IN WRITING BY BOTH PARTIES.
SHOULD OWNER DETERMINE, IN OWNER’S SOLE DISCRETION, THAT CITY COMMISSION APPROVAL IS
UNLIKELY OR UNATTAINABLE, OWNER MAY TERMINATE THIS AGREEMENT BY ISSUING WRITTEN
NOTICE TO MANAGER. MANAGER ACKNOWLEDGES THAT OWNER SHALL BEAR NO LIABILITY TO
MANAGER SHOULD CITY COMMISSION APPROVAL NOT BE SECURED, AND MANAGER WAIVES ANY
CLAIMS AND/OR CAUSES OF ACTION AGAINST OWNER ARISING FROM THE FAILURE TO SECURE CITY
COMMISSION APPROVAL.
42. NEGOTIATION. THIS AGREEMENT HAS BEEN NEGOTIATED AT ARMS-LENGTH BY AND
BETWEEN OWNER AND MANAGER, EACH HAVING AN OPPORTUNITY TO BE REPRESENTED BY LEGAL
COUNSEL OF ITS CHOICE AND TO NEGOTIATE THE FORM AND SUBSTANCE OF THIS AGREEMENT, AND,
THEREFORE, IN CONSTRUING THE PROVISIONS OF THIS AGREEMENT, NEITHER PARTY SHALL BE
DEEMED DISPROPORTIONATELY RESPONSIBLE FOR DRAFTSMANSHIP. MOREOVER, THIS AGREEMENT
WAS PREPARED BY OWNER BUT SHALL NOT BE CONSTRUED MORE STRICTLY AGAINST OWNER AS THE
RESULT THEREOF. MANAGER IS ADVISED TO SEEK INDEPENDENT LEGAL COUNSEL IN CONNECTION
WITH ITS REVIEW OF THIS AGREEMENT. BY MANAGER’S EXECUTION OF THIS AGREEMENT, MANAGER
ACKNOWLEDGES THAT IT HAS BEEN AFFORDED AN OPPORTUNITY TO HIRE INDEPENDENT LEGAL
COUNSEL AND HAS EITHER OBTAINED ADVICE FROM INDEPENDENT LEGAL COUNSEL OR HAS
DETERMINED THAT SUCH ADVICE WAS NOT NECESSARY.
[Signatures on following page]
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[Signature page of Management Agreement by Owner]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
OWNER:
CITY OF OCOEE, a Florida municipal corporation
ATTEST:
By:__________________________
_________________________
Melanie Sibbitt, MMC Date:________________________
City Clerk
(SEAL)
APPROVED BY THE CITY OF OCOEE
COMMISSION IN A MEETING HELD ON
_________________, 2025 UNDER AGENDA
ITEM No. __
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE, FLORIDA
Approved as to form and legality this
__ day of ___________, 2025
Fishback Dominick LLP
By: _________________________
A. Kurt Ardaman, City Attorney
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[Signature page of Management Agreement by Manager]
MANAGER:
,
a
By:
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EXHIBIT A
MANAGEMENT FEE
(1) Base Management Fee. Manager shall be paid a base management fee in the amount of Five Thousand and No/00
Dollars ($5,000.00) per month (“Base Management Fee”). The Base Management Fee shall be comprehensive of all of
Manager’s expenses, and except as expressly set forth herein and/or in the Operating Plan, or as otherwise approved, in
writing, by Owner, no administrative expenses or additional overhead or other direct or indirect costs of Manager shall be
billed directly or indirectly to Owner. The Base Management Fee shall begin to accrue as of May 1, 2025, and thereafter
shall be payable, in arrears, upon submission of an invoice pursuant to Section 4 of this Exhibit A by Manager, subject to
Owner’s review and approval, by Owner from the Operating Account on a monthly basis in accordance with this Agreement.
(2) Incentive Fee. Manager shall share any Net Income received by Owner, reconciled on a monthly basis, in a ratio
of seventy percent (70%) to Owner and thirty percent (30%) to Manager (“Incentive Fee”), provided that the Incentive Fee
shall not exceed Four Thousand Dollars ($4,000.00) per month. The Incentive Fee shall begin to accrue as of May 1, 2025,
and thereafter shall be payable, in arrears, upon submission of an invoice pursuant to Section 4 of this Exhibit A by Manager,
subject to Owner’s review and approval, by Owner from the Operating Account on a monthly basis in accordance with this
Agreement, provided that no Incentive Fee will be payable if Manager is in breach of this Agreement after written notice
and an opportunity to cure (as applicable).
(3) Management Fee Cap. Notwithstanding anything stated herein to the contrary, the Management Fee shall not
exceed Nine Thousand Dollars ($9,000.00) in any calendar month during the Term.
(4) Payment Procedure; Invoicing Requirement. In furtherance of the foregoing, Manager shall submit a formal invoice
for the Management Fee, including each applicable portion thereto (e.g., the Base Management Fee and the Incentive Fee)
to Owner, which includes a breakdown and confirmation of the applicable amount. Owner shall have five (5) business days
to review, approve, and/or dispute said invoice, of which during this process, Owner may request backup documentation
and additional information. Once approved, which shall not be unreasonably withheld or delayed by Owner, Manager may
draw the Management Fee from the Operating Account, provided that no portion of the Management Fee shall be paid
directly from the Revenue Account. In the event Owner disputes any portion of the Management Fee invoice, the undisputed
portion shall be paid, and the remainder shall be subject to good-faith resolution. Owner retains the right to claw back any
overpaid or unearned portion of the Management Fee following audit or review.
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EXHIBIT B
GENERAL MANAGEMENT AND OPERATION
(1) Golf Club Hours of Operation. The Golf Club shall be operated on a daily basis for the entire calendar year and
shall not be closed on holidays.
(2) Fees and Charges. Manager shall establish, maintain, revise and administer the overall charge structure of the Golf
Club, including without limitation, Resident and nonresident greens fees, golf cart rental fees, golf club rentals and any
other services provided at the Golf Club, subject to the prior written approval of Owner. Manager shall collect all charges,
rents and other amounts due or require bonding and/or security deposits from Managers, guests, invitees, patrons,
concessionaires and other parties providing exclusive services, cause notices to be served upon any such parties to quit and
surrender space occupied or used by them where desirable or necessary, and ask for, demand, collect and give receipts for
all charges, rents and other amounts which may at any time be due from any such parties.
(3) Resident Rate. Notwithstanding anything stated herein to the contrary, Manager shall implement a discounted
greens fee rate for all Residents, subject to additional terms, conditions, and restrictions from Owner.
(4) Dress Code. With the approval of Owner, Manager shall adopt and enforce a dress code for play and for the food
and beverage venues which is consistent with the Golf Club Quality Standard. This dress code shall apply to all visitors,
golfers, and employees.
(5) Club Policy. Manager shall not allow the formation of formal men’s or women’s clubs or any other type of club
membership in conjunction with the Golf Club without the prior written consent of Owner.
(6) Handicap Service. During the Term, Owner may desire to implement at the Golf Club a United States Golf
Association golf handicap service to both men and women golfers who patronize the Golf Club. Upon the request of Owner,
Manager shall make the necessary arrangements to implement such handicap system.
(7) Starter Service and Marshals. Starter services shall be provided in the Golf Shop and shall include the assignment
of tee times and carts and the collection of fees. While the Golf Club is open for play, marshals shall closely monitor and
control the speed of play and assist the slower golfers in order to maintain golf play at acceptable levels.
(8) Club Cleaning. Upon request by Owner, golf club cleaning services shall be provided to golfers prior to and
immediately upon their completion of golf play. There shall be no charge to the golfers for golf club cleaning services.
Appropriate Employees may accept gratuities from customers for such services.
(9) Communications. Manager will be responsible for booking golf tee time reservations, member communications,
monthly event calendars, inbound phone services, data collection and other reasonable administrative duties.
(10) Tournaments. Consecutive tee times, shotgun starting formats, and modified shotgun starting formats shall be
acceptable forms of reservations for tournaments.
(11) Restaurant and Other Food and Beverage Operations. Manager shall perform all the food and beverage operations
at the Golf Club, including banquet/catering services. Manager shall develop the food and beverage offerings and all menus
to be used by Manager in the Restaurant, as well as the catering operations. Manager shall ensure that the Restaurant is
maintained and operated in accordance with the Golf Club Quality Standard. Manager shall comply with all Laws governing
the serving of alcoholic beverages, and shall properly train and direct all Employees in this regard through policies, posting
of notices and supervision and shall deliver to Owner, upon request, copies of all required certifications.
(12) Golf Shop. Manager will provide operations in the Golf Shop consistent with the Golf Club Quality Standard,
including, but not limited to, effective tee sheet management utilizing Manager’s experience combined with point-of-sale
systems, internet support, and reservation systems, and effective merchandising programs including coordinating the quality
and volume controls of the Golf Shop and implementing carefully monitored plans that maximize profit and optimize the
Golf Shop’s inventory levels. The Golf Shop shall be open from dawn to dusk every day that the Golf Course is open for
play. Manager shall be responsible for promoting and increasing sales at the Golf Shop. Manager shall staff the Golf Shop
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each day that the Golf Course are open for play. Space shall be provided in the Golf Shop for merchandise that Owner may
develop as part of Owner’s marketing and public relations programs, including such items as t-shirts, polo shirts, sun visors,
license plate frames, coffee cups, and golf balls. For the purpose of merchandise sales in the Golf Shop, Manager agrees to
keep inventory on hand at an amount contemplated in the Operating Plan (as applicable), provided that this inventory amount
will be exclusive of any gifts or prizes ordered for specific groups or tournaments. All merchandise to be sold is subject to
Owner’s approval, which approval shall not unreasonably withhold. Manager shall remove and withdraw from sale any
goods or services which may be found objectionable (as determined in Owner’s sole and absolute discretion) following
receipt of notification from Owner.
(13) Golf Instruction. Manager shall retain, as independent contractors, golf instructors to provide golf lessons and golf
instruction at the Golf Club. All golf instructors must be certified Professional Golf Association or Ladies Professional Golf
Association golf professionals or apprentices, and shall be approved by the Director of Golf at the Golf Club. All golf
instruction fees shall be handled as a cash register transaction and reported in the same manner as green fees. Manager shall
develop a golf instructional program that will offer individual and group lessons, video instruction, golf clinics, junior golf
clinics, and golf schools. A golf professional shall only be allowed to conduct golf lessons at the Golf Club if he or she has
first obtained the approval to do so by Manager; such approval may be conditioned on payment of an appropriate fee.
(14) Driving Range. The driving range shall be open from dawn to dusk every day that the Golf Course is open for play.
Driving range balls shall be of the highest quality, and all cracked and worn range balls shall be removed daily. A driving
range fee, if any, shall be charged as set by Manager in the Operating Plan (as applicable).
(15) Golf Club Rentals. Quality rental golf clubs and bags shall be available for customers of the Golf Club.
(16) Golf Carts. Golf cart rentals shall be required for all golfers on the Golf Club. Manager shall not permit the use of
private golf carts on the Golf Club. All golf carts shall be 4-wheel vehicles, and shall be equipped with canopies,
windshields, coolers and sand containers and holders. Manager shall employ a full-time on-site cart mechanic who is
qualified to repair and maintain the golf carts.
(17) Office Operations. The Golf Club shall be equipped with all necessary equipment to allow for the efficient
administration of the Golf Club business. The General Manager of the Golf Club shall represent the Golf Club as a member
of the local golf association. Upon Owner’s written request, Manager shall provide Owner with a written job description
for each management position at the Golf Club. Owner shall keep these job descriptions in strict confidence, subject to
applicable public records disclosure Laws. Manager shall maintain at the Golf Club (e.g., human resource and personnel
records) copies of all Manager corporate policies and procedures, as such may be changed from time to time.
(18) Safety and Security. The Golf Club shall comply with all safety regulations of federal, state and local governmental
agencies, and applicable federal occupational, health, and safety laws and regulations. Manager shall take all reasonable
actions to protect the safety of all Employees and customers, invitees, and patrons of the Golf Club. The Golf Club shall
contain appropriate security systems, including video monitoring of cash operations, security alarm systems, motion
detection sensors for after-hours control, and locks for the maintenance yard and perimeter gates. The alarm system at the
Golf Club shall be tied into an offsite monitoring station. Manager shall keep for seven (7) days computer back-up tapes for
all accounts payable and accounts receivable information. All hard records at the Golf Club shall be kept in fireproof files.
(19) Customer Forms. Forms shall be visible and readily available to customers of the Golf Club to present their
comments or complaints regarding the Golf Club. Completed forms shall be made available to Owner upon request.
(20) Golf Club Quality Standard Training Program. Within thirty (30) days after the Commencement Date, and then
prior to the commencement of each Operational Year, Manager shall implement a Golf Club Quality Standards training
program for all Employees who come into contact with guests, customers, invitees, and patrons at the Golf Club. Manager
shall also make all Employees available to attend any additional service training programs as directed by Owner.
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EXHIBIT C
ACCOUNTING
(1) Books and Records. Manager shall keep full and accurate books of account and such other records as are necessary
to reflect the results of the operation of the Golf Club. Manager shall make available to Owner, Accountant, Owner
Representative, and Owner’s attorneys and agents, all books and records relating to the Golf Club, including contract
documents, invoices and construction records. Owner shall have the right to perform any and all audits of the books and
records and Manager’s operation of the Golf Club. In the event the audit discloses any errors in the books and records,
Manager shall correct such errors upon written notice of same. Any such audit shall be conducted at the expense of Owner,
provided that Manager shall reimburse Owner from Manager’s own funds for the cost of such audit if the audit reveals an
error in Manager’s accounting, which results in a variance of three percent (3%) or more. All books and records for the
Golf Club shall be located at the Golf Club. All accounting books and records shall be maintained in accordance with
GAAP and shall be maintained in an accrual format for each Operational Year. All such books, records, and reports shall
be maintained separately from Affiliated Facilities. Manager agrees to maintain reasonable and necessary accounting,
operating, and administrative controls relating to the financial aspects of the Golf Club, and such controls shall provide
checks and balances designed to protect the Golf Club and Owner. The cash registers used by Manager shall be approved
by Owner. Manager shall deliver to Owner all of the financial and accounting books and records of the Golf Club upon the
expiration or earlier termination of this Agreement, and Owner shall have the right to inspect and audit such books and
records thereafter.
(2) Statements and Reports. Manager shall render statements, reports, and other related information to Owner, in a
form reasonably acceptable to Owner, as follows, all of which shall be prepared in accordance with GAAP consistently
applied and certified as materially true and correct by Manager. All such statements shall contain such detail as is reasonably
requested by Owner, including the following:
(a) Monthly Statements. Within fifteen (15) days after the end of each calendar month, Manager shall deliver
to Owner a detailed statement of profit and loss statement, balance sheet, cash flow statement, and budget variance report
showing the results of operation of the Golf Club for the preceding calendar month and year to date, which statement shall
include sufficient detail to reflect all Gross Revenue and Operating Expenses, and specifically including, all revenues or
other funds received, expenses and disbursements made, by relevant category of the Approved Budget and, in the case of
unbudgeted revenues, receipts, expenses and disbursements, an itemized list, a comparison of the amounts received and
expended with the estimated receipts and expenses set forth in the Approved Budget, both for the preceding month and
year-to-date, a statement of all delinquent receivables and other charges for the use of the Golf Club, and include bank
reconciliations. Moreover, all monthly statements shall include rounds mix report with comparison to prior year (based on
available information), course maintenance schedules and update on current conditions, rate schedule for each player
category, membership sales update (if applicable), capital repairs and projects that are commercially advisable, guest survey
report, competitive market analysis, and environmental management plan updates.
(b) Departmental Reports. All department heads at the Golf Club will prepare a monthly variance report for
their respective departments as compared to the Operating Plan to be reviewed by Owner and Manager. Manager shall hold
weekly departmental staff meetings in order to closely monitor all Operating Expenses. Manager will create a detailed cost
analysis for each department which will be reflected in such variance reports.
(c) Special Reports. Manager shall prepare additional special reports from time to time at the reasonable
request of Owner.
(d) Annual Statements. Within thirty (30) days after the end of each Operational Year, a profit and loss
statement showing the result of operation of the Golf Club for such Operational Year which statement shall include sufficient
detail to reflect all Gross Revenue and Operating Expenses, including the Management Fee. If requested by Owner, and at
the sole expense of Owner, these financial statements shall be certified by Accountant.
(e) Final Report. Upon the expiration or termination of this Agreement for any reason, Manager shall promptly
deliver to Owner the following: a final accounting, reflecting the balance of income and expenses of the Golf Club as of the
date of expiration or termination, to be delivered within fifteen (15) days after such expiration or termination, any balance
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or monies in the Operating Account, or elsewhere, held by Manager, and all books and records (including those stored in
computerized software), contracts, Bookings, leases, receipts for deposits, unpaid bills and other records, papers or
documents which pertain to the Golf Club, to be delivered within five (5) days of such termination.
(3) Data, Storage, and Reporting Process. All reports, budgets, payroll, bank statements, and documentation,
information, and reports required under this Agreement must be uploaded regularly to a secured cloud system, as selected
and approved by Owner. Manager shall only use such system when sending sensitive communications, information, and
documentation in accordance with this Agreement. Nightly backups of all accounting and operational data related to the
Golf Club shall be performed. At all times, Owner shall retain full ownership of all financial, operational, customer data,
and other data related to the Golf Club, and Manager acts only as data steward.
(4) Revenue Protection Technology. Manager shall use a cloud-based point-of-sale system approved by Owner that
tracks all transactions in real-time, of which cannot be edited or deleted post-transaction, is integrated with the accounting
system and accessible by Owner, and settlement must occur directly into the Revenue Account.
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EXHIBIT D
MARKETING AND SALES
(1) Marketing. The Golf Club shall be promoted, marketed and advertised in accordance with the Marketing Plan.
Manager shall cause the Golf Club to be marketed together with and in a substantially similar fashion and manner as
Affiliated Facilities, subject to the terms of this Agreement. Manager shall focus on effectively promoting and increasing
the awareness and use of the Golf Club, which shall consist of addressing group outings, special events, promoting use of
the Golf Club by Residents, and increasing the profile of the Golf Club locally and nationally through effective public
relations and advertising programs. Manager will assist with the preparation of a progressive and specially tailored
marketing campaign maximizing all promotional opportunities, including utilization of marketing strategies used at other
Affiliated Facilities. Manager will coordinate the preparation of creative advertisement concepts, whether for print, radio,
direct mail, internet, etc., working when necessary with a designated graphic artist or ad firm agreed upon by the Owner
and Manager. Manager will be responsible for the development of all necessary marketing collateral pieces such as
brochures, promotional fliers, scorecards, yardage books, etc. Manager will coordinate all website, internet or email
marketing efforts. Manager will examine the effectiveness and cost of existing programs and make recommendations for
ongoing improvements. Manager will make recommendations for competitive events which would bring exposure and
prestige to the Golf Club at a reasonable cost. Manager will also consider innovative promotional concepts which may
achieve the same goals.
(2) Sales. Manager shall provide cooperative sales and marketing services to the Golf Club, which shall include,
without limitation, Manager soliciting new golf memberships and corporate relationships, pursuing other business
opportunities such as catering opportunities, weddings, corporate meetings and private events, and marketing the Golf Club
through various promotions. In order to promote the Golf Club and benefit the business of Owner, Manager shall enjoy
complimentary use of the Golf Club, which such use shall include, without limitation, donating rounds of golf for public
relations and marketing purposes, provided that any complimentary use shall not interfere with the overall operation and
management of the Golf Club and the maximization of revenue therefrom. Owner shall solely own all data procured through
marketing and sales efforts related to the Golf Club, including without limitation, the customer database. During the Term,
Owner grants Manager a worldwide, non-exclusive license to host, copy, transmit, display and use such data in order for
Manager to perform Manager’s duties, obligations, and responsibilities stated herein.
(3) Brand Management Program. Manager shall work closely with City Manager or his/her designee to implement a
marketing and brand management program, which shall be approved by Owner (the “Brand Management Program”). As
part of the Brand Management Program, Manager shall provide cooperative sales and marketing services to the Golf Club
which shall include system-wide sales and marketing activities for the Golf Club and all Affiliated Facilities, including
national and international advertising, group sales promotion, public relations and direct selling efforts for the benefit of the
Golf Club and the collective business development at all Affiliated Facilities, participation in Manager central reservation
system which provides a regional, national and international toll-free system for inquiries regarding Bookings and for
making, changing and canceling reservations at the Golf Club and/or Affiliated Facilities, representation at golf industry
sales and trade shows, inclusion on, and a hyperlink from, Manager’s website to the Golf Club’s website, and such other
additional sales and marketing services as Manager may determine may benefit the Golf Club and the Affiliated Facilities
or develop and promote further the Golf Club.
(4) Local Marketing Efforts. Manager shall create resident involvement programs and socials, community related
affiliations, charity involvement, support of local golf programs, junior golf promotions and other public relations programs.
In addition to the Resident Rate, Manager will prepare customized programs for the Residents, which programs may include
privileges or preferences for Residents which are reasonably requested by Owner, and solicit corporate group outings of all
sizes.
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EXHIBIT E
HUMAN RESOURCES
(1) Human Resources. Manager shall cause to be furnished to the Golf Club certain services which are furnished
generally on a central or regional basis to other Affiliated Facilities, which includes processing of bi-weekly payroll,
including check printing and distribution, remittance of state and federal taxes, administration and processing of
garnishments, issuance of W-2s, and other procedures related to the maintenance of payroll records, administration of
employee benefits, such as medical and flexible spending programs, monitoring of vacation and sick leave balances,
Consolidated Omnibus Budget Reconciliation Act notification, new hire paperwork, maintenance of personnel records,
leave under the Family and Medical Leave Act, 401(k) audit fees, and termination issues, the provision of Manager’s
standardized materials for conducting compliance training (e.g. standards implementation, safety (including OSHA
compliance), and harassment prevention), recruitment, and administration of employee reward and recognition programs,
periodic oversight, through Manager’s centralized internal audit function, of the Golf Club’s operational and accounting
control procedures, access to a computer application “help desk,” access controls (user ID administration), systems
design/engineering, systems management methodologies, management of enterprise applications, and enterprise
connectivity, as well as assistance from a regional technology manager to coordinate the implementation of new and
upgraded technologies, oversight of hardware/software procurement, establishment of strategic technology goals, and
monitoring service satisfaction, and the cost of insurance for the Employers Practices Liability insurance and the Crime
Coverage Policy.
(2) Employees. At all times during the Term, Manager shall employ all Employees, the number of which shall be no
more than reasonably necessary to efficiently operate the Golf Club as contemplated in the Operating Plan, in the name of
Manager. Manager shall, in Manager’s sole discretion, recruit, hire, train, discharge, promote, and supervise the Executive
Employees, and through the Executive Employees, supervise the recruiting, hiring, training, discharge, promotion, and work
of all other Employees, and independent contractors and others reasonably necessary to operate the Golf Club.
(a) Procedures and Policies. Manager shall establish employment procedures, policies, pay scales, employee
benefits, including medical, dental, health and life insurance pursuant to the Operating Plan, and use commercially
reasonable efforts to resolve all employment disputes, provided that such resolution shall not be final until Manger obtains
Owner’s prior written approval of such resolution. All Employees shall be “employees” of Manager and not employees of
Owner. Manager shall be responsible for compliance with all Laws, including without limitation, all Laws relative to
payroll and employment of all Employees. Manager may enter into contracts on Manager’s behalf with Employees, but
shall not enter into any labor agreement on behalf of Owner or the Golf Club without the prior written consent of Owner.
Except as otherwise covered by Manager’s indemnification obligations stated herein, all costs of every kind and nature
related to Employees, independent contractors and other personnel at the Golf Club shall be the responsibility of Owner.
No covenants, agreements, or other restrictions shall be placed upon any Employees which restricts Employees from
working at the Golf Club after the Expiration Date.
(b) Compensation; Benefits. The compensation to be paid all Employees shall be an Operating Expense.
Subject to reimbursement as an Operating Expense, Manager shall be solely responsible for the payment of all payroll taxes
and the required withholding of taxes for Employees, provided, however, that any failure to pay such taxes or withholding
and any related fines and penalties shall be paid by Manager without reimbursement from Owner unless the failure to pay
was the result of the failure by Owner to provide funds as required herein. Manager shall provide Owner with a schedule
of the cost of having Employees participate in the benefits offered by Manager to employees of Affiliated Facilities, which
Owner shall approve in Owner’s sole discretion. With respect to those benefits approved by Owner, Manager shall make
available such benefits to eligible Employees, and the allocable share of such employee benefits accruing while working at
the Golf Club shall be an Operating Expense.
(c) Introductory Period. Manager shall offer employment to all of the employees who are presently employed
at the Golf Club, provided, however, said employees shall be placed on an introductory period during their first ninety (90)
days of employment with Manager (“Introductory Period”). During the Introductory Period, Manager will evaluate each
individual employee and determine whether said employee is suitable for the applicable job position. At the completion of
the Introductory Period, Manager may, in Manager’s sole discretion, terminate any of said employees, and Owner
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acknowledges and agrees that the completion of the Introductory Period by any of said employees does not guarantee
employment for any period of time thereafter.
(d) Executive Employees. Manager shall consult with Owner with regard to the hiring and firing of Executive
Employees, and Manager’s decisions to hire and fire Executive Employees shall be subject to Owner’s prior written consent,
which such consent shall not be unreasonably withheld, conditioned or delayed, provided, however, such consent shall not
be necessary if (i) such Executive Employee voluntarily terminates his/her employment, or (ii) Manager terminates such
Executive Employee for violations of the Law, fraud or acts involving moral turpitude, and provided further, that Manager
promptly thereafter provides written notice to Owner stating the reasons therefore. Owner shall have the right to approve,
in writing and in advance, any Executive Employee that Manager intends to hire for these positions, which approval shall
not be unreasonably withheld.
(e) Training. Manager shall use established procedures, techniques and programs to hire and evaluate qualified
applicants. Moreover, Manager shall provide a premier and comprehensive employee training program for all Employees
embodying Manager’s professional golf management standards, of which this training program shall provide all Employees
with such ongoing and additional training as is necessary to maintain the level of quality set forth in the Operating Plan.
Subject to the obligation of Manager to observe the Laws regarding such matters, the Operating Plan, and the Owner’s right
to approve the hiring or termination of any Executive Employee, and other terms of this Agreement, Manager shall have
the authority to hire, establish compensation and benefits for, promote, discharge, and supervise all Employees in
accordance with guidelines and employment policies (which shall include, without limitation, policies regarding safety in
the workplace, equal employment opportunities, and anti-discrimination policies, programs, and practices) proposed by
Manager and agreed to, in writing, by Owner. Manager acknowledges and agrees that Owner’s approval of policies and
procedures is intended to promote the Golf Club Quality Standard and ensure compliance with Manager’s obligations
pursuant to this Agreement and that Manager remains responsible for the conduct, behavior, and actions of all Employees.
(f) Liability. Manager shall be responsible for any employment related liability, fine, penalty or award
(including the cost of defense and attorney fees) with respect to claims, demands, arbitration or litigation brought by any
Employee(s) resulting from violations by Manager, any of Manager’s corporate personnel, any Executive Employees, and/or
any supervisory staff and/or others under the control of Manager in relation to supervising Employees, of the Laws
governing the employment or working conditions of the Employees (“Damages”). Except for the proceeds of any insurance
coverage described herein, Manager shall not be entitled to any indemnification or reimbursement by Owner for such
Damages unless such Damages were the result of a policy or procedure which was required, in writing, by Owner or the
result of working conditions at the Golf Club which were identified in writing as non-compliant by Manager and Owner
failed to provide the requisite funding to remedy such conditions after written notice to Owner.
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EXHIBIT F
MAINTENANCE
(1) Plan. Manager shall implement a first-class maintenance program for the Golf Club, which will result in optimum
agronomic, turf and playing conditions on a year-round basis taking into consideration the Operating Plan. Manager will
perform a detailed analysis of the existing programs in place and, together with the Golf Course Superintendent, create a
specific maintenance program for the Golf Club as part of the Operating Plan. Manager’s goals for maintenance of the Golf
Club, as outlined in the Operating Plan, shall be to optimize the finest year-round agronomic conditions and achieve such
conditions at the lowest possible cost, maximize playability while featuring the Golf Course’s design strategy, maximize
presentation of the Golf Course in keeping with the overall theme of the Golf Club, and comply with all Laws and all
documents recorded in the public records pertaining to the Golf Club.
(2) Specifications. The following specifications shall be adhered to by Manager at all times during the Term:
(a) All greens will be mowed and/or rolled a total of seven (7) days a week.
(b) Height of cut will be .145” to .200” but may be modified from time to time as deemed necessary by the
Golf Course Superintendent in conjunction with input from the General Manager and Owner Representative.
(c) Collars and approaches will be mowed up to three (3) times per week, provided that during dormancy
periods, the frequency may be less but must not appear unmaintained at any time.
(d) Aerification shall be completed twice during the Term, and the type of aerification shall be determined by
Golf Course Superintendent in conjunction with the General Manager and Owner Representative.
(e) Vertical cutting shall be performed as needed up to once per week and should complement each aerification
and topdressing. Grooming and brushing shall be done at this time as well.
(f) Promptly after each aerification, a topdressing material (e.g., similar to the greens construction sand),
approved, in writing, by Owner Representative, shall be applied and brushed into the turf, of which this application shall be
done with an approved topdressing spreader. Spot topdressing shall be applied as needed to repair damage from ball marks
and other damage. Light topdressings shall also be done in conjunction with the vertical cutting process.
(g) Provided the Golf Course experiences normal conditions during the Term, at a minimum, 10# N, 16# K,
and 3# P should be applied per one thousand (1,000) square feet. Adjustments shall be made based on soil nutrient level
testing and growing conditions at the time of treatment.
(h) Post-emergent weed control shall be an ongoing daily effort and shall be distributed in the most efficient
manner possible based on conditions of the Golf Course. Invasive species of grass shall be mowed but may require
additional treatments.
(i) The landscaping surrounding all maintenance buildings and the Clubhouse shall at all times be maintained
in accordance with the Operating Plan.
(3) Programs. At all times during the Term, Manager shall:
(a) Commit to ongoing education of Employees and all applicable Contractors regarding Golf Club
maintenance, including an education program designed to educate the maintenance staff with regards to minimizing
environmental pollution associated with the management and operation of the Golf Club.
(b) Work toward minimizing environmental pollution and towards reducing primary and secondary
environmental impacts associated with pesticide, fertilizer, fungicide, nematicide and herbicide usage. This includes the
primary goal of increasing biological control and reduction of chemical controls.
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(c) Increase the parameters of water quality testing at selected off-site points of water discharge following two
stormwater events in which discharge is expected to occur from the Golf Club for specific chemicals, elements or
compounds in any fertilizer, pesticide, fungicide and herbicide used on the Golf Club. Examples of parameters are heavy
metals in fertilizers, nematicides, aluminum, copper, phosphorous, nitrogen, potassium, manganese, magnesium, sulphur,
etc. Reports will be submitted to the County a minimum of twice per year.
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