Backup Documents 04/14/2020 Item #10 (Agenda ID 12035) AGREEMENT
This Agreement is made and entered into on April 10, 2020 (the "Effective Date"),
by and between CC BSG, LLC a Nevada limited liability company, registered to do
business in the State of Florida ("ClubCorp"), whose mailing address is 3030 LBJ
Freeway, Suite 600, Dallas, Texas 75234 and the Collier County Board of County
Commissioners for Collier County, Florida("County"), a subdivision of the State of
Florida,, whose mailing address is 3295 Tamiami Trail East, Bldg F Naples, FL 34112.
ClubCorp and COUNTY are hereinafter referred to collectively as the "Parties",
Background Information
County owns the former Golden Gate Golf Course property located on the
southwest corner of the intersection of Collier Boulevard and Golden Gate Parkway in
Collier County, Florida (the "Property") outlined in red on the attached Exhibit "A",
located in Collier County, Florida. County desires to develop a portion of the Property for
golf and entertainment purposes, at no cost to County, pursuant to a negotiated lease
agreement.
Subject to ClubCorp's diligence review and the Parties negotiating a definitive
lease agreement (the "Lease Agreement") mutually agreeable to the Parties in each
Party's sole and absolute discretion, ClubCorp proposes to lease a portion of the
Property, currently estimated to be plus or minus approximately 80-100 acres of the
Property, together with all improvements currently located thereon and the use of an
easement (site yet to be determined) to be obtained by County benefiting the Property
(collectively, the "Leased Premises") on the prefatory general terms and conditions
outlined in this Agreement and incorporating such additional material terms to be
negotiated during the Due Diligence Period (hereinafter defined), for the purposes of the
development of golf and entertainment on the Property, all of which would later be
memorialized in the Lease Agreement.
With this understanding, the Parties are entering into this Agreement on the
hereinafter provided terms and conditions.
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Terms and Conditions
In consideration of $10.00 and other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Parties agree as follows:
1. ClubCorp's Right to Conduct Due Diligence. ClubCorp shall have the right
from the Effective Date until midnight on the date prior to the one year anniversary of the
Effective Date (the "Due Diligence Period"), to determine, in ClubCorp's sole and
absolute discretion, that all or part of the Property is suitable and satisfactory for
ClubCorp's intended use. The Parties may convert this Agreement to an owner or
operator agreement of the Leased Premises during the Due Diligence Period. ClubCorp
shall develop a business plan and submit it to County for review prior to any such
proposed conversion regarding the intent to negotiate certain criteria, and a detailed site
plan with its master project.
During the Due Diligence Period:
a. ClubCorp shall have the privilege of going upon the Property with its
employees, agents, engineers and other consultants, as needed to inspect, examine,
survey and otherwise undertake those actions which ClubCorp, in its discretion, deems
necessary or desirable to determine the suitability of the Property for ClubCorp's
intended uses thereof. The privilege shall include, without limitation:
i. the right to make surveys, soils tests, borings, percolation tests,
compaction tests, hazardous waste tests, environmental
determinations and tests to obtain any other information relating to
the surface, subsurface and topographic conditions of the Property,
with at least 24 hours advance notice to County; and
ii. the right to attend and participate as needed in (A) design
meetings, (B) the master project design for the Property, (C) Collier
County Planning Commission and County meetings, as applicable,
and (D) other public meetings. ClubCorp intends to and will use its
best efforts to attend any such meetings recommended by County,
provided that County provides advance written notice thereof.
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b. Upon request by ClubCorp, County shall make available to
ClubCorp complete and legible copies of all existing title policies and exception
documents; existing entitlements, plans and approvals; soils, engineering and other
environmental and wetlands reports and hazardous waste research on the Property;
property conditions reports; pending litigation, and notices from condemnation affecting
the Property, if any; any other material in County's possession relating to the Property
(collectively, "County's Property Information").
Upon the completion of any physical inspection or test of the Property, ClubCorp
shall restore the Property substantially to its condition immediately prior to such inspection
or test, normal wear and tear excepted.
To the maximum extent permitted by Florida law, ClubCorp shall defend, indemnify
and hold harmless the County, its officers and employees from any and all liabilities,
damages, losses and costs, including but not limited to reasonable attorneys' fees and
paralegals' fees, to the extent caused solely by the negligence, recklessness or
intentionally wrongful conduct of ClubCorp, its employees, agents, engineers and other
consultants employed or utilized by ClubCorp in the performance of this Agreement,
including but not limited to any claims by third parties arising from property damage or
injury to persons resulting from the entry onto, or inspection of the Property.
The duty to defend under this section is independent and separate from the duty
to indemnify and the duty to defend exists regardless of any ultimate liability of ClubCorp,
County and any indemnified party. The duty to defend arises immediately upon
presentation of a claim by any party and written notice of such claim being provided to
ClubCorp, provided however that notice of the claim must be provided as reasonably
practicable as possible. Clubcorp shall have the option to assume direction and control
of the defense of any applicable claim (including the right to settle a claim). ClubCorp's
obligation to indemnify under this section will survive the expiration or earlier termination
of this Agreement until it is determined by final judgment that an action against County or
an indemnified party for the matter indemnified hereunder is fully and finally barred by the
applicable statute of limitations.
2. Site Evaluation. Clubcorp shall evaluate the Property within 30 days of the
Effective Date, and shall provide its evaluation to the County within 60 days of the
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Effective Date. Such evaluation will identify any existing golf course features on the
Property to be retained and will recommend a going forward maintenance plan at no
expense to County.
3. Lease Agreement. Upon the execution of this Agreement by both Parties,
ClubCorp and County shall begin expeditious negotiation of a mutually acceptable Lease
Agreement. The Lease Agreement shall be entered into between a joint venture (the
"JV") consisting of ClubCorp, and another business entity (of which ClubCorp, is a
majority partner of that JV) and the County. ClubCorp's counsel shall prepare a first draft
of the Lease Agreement for County's review and comment. If the Parties are unable to
reach a mutually acceptable Lease Agreement by the end of the Due Diligence Period,
then either of the Parties shall be entitled to end the negotiations and the obligations
either may have under this Agreement shall terminate.
4. Third-Party Dealings and Offers. Until the earlier of: a. the expiration of the
Due Diligence Period, or b. the date either Party notifies the other of its decision to
termination negotiations regarding the Lease Agreement:
a. County shall not advertise the Property for sale or lease and shall not
continue or enter into negotiations with or accept any purchase or lease offers from any
other entities/individuals who have indicated an interest in purchasing, leasing or
obtaining any other interest in the Property; and
b. ClubCorp shall not discuss, negotiate, or enter into an agreement
with the owners of properties adjoining the Property without County's prior written consent
which consent can be withheld by County if County deems such discussion, negotiation,
or agreement to adversely impact the marketability or value of all or any part of the
Property.
County acknowledges that ClubCorp will incur costs during the Due Diligence
Period in reliance on the exclusivity provided for in this Section 4.
5. Expenses. Each of the Parties shall each pay its own costs and expenses
in connection with this Agreement and the transaction and activities contemplated by it,
including, but not limited to, the costs of their respective legal counsel, and except with
respect to any Nonproprietary Diligence provided to County as set forth in Section 1
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above, neither of the Parties will have any obligation with respect to costs and expenses
incurred by the other party.
6. Confidentiality. Except as required by applicable law and the agreements
that govern the affairs of the Parties, each party shall keep confidential, all confidential
information of the other Party received in the course of the transaction contemplated
hereunder; provided, however, each party may disclose confidential information to their
respective financial advisors, lenders, attorneys, and other consultants and
representatives on a "need to know" basis. Neither party may issue a press release
concerning the subject matter of this Agreement without the prior written consent and
approval of the other party. All records not falling under a specific exemption of the Florida
Public Records law, Chapter 119 of the Florida Statutes, et. seq., shall remain subject to
public disclosure and ClubCorp shall keep all such records and supporting documentation
created that concerns or relates to this Agreement for a minimum of five (5) years from
the date of termination of this Agreement or such longer period as may be required by
law, whichever is later, as required by Chapter 119, Florida Statutes.
7. Assignment. Neither Party may assign this Agreement without the other
Party's written consent; provided however, that ClubCorp may assign this Agreement to
the JV upon providing written notice thereof to County.
Executed by the Parties as of the Effective Date.
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ATTEST:
Crystal K. Kinzel, Clerk of Court & Office of the County Mana•er
Comptroller
By: By: 't •'
Leo ' Ochs, County gage
Dated:
(SEAL)
CC BSG, LLC
By: )"
Print Name: Davijg sbury
Its: _ Pre rent
Print Name and Title
TWO WITN . — S:
By:
TWITNESS
Randall Cousins
Print Name
taji 4 1.4k
SECON a ITN LCINP
Amber Imhoff
Print Name
Approved as to Form and I egality:
Deputy County Attorney
Print Name
di510
of< Ge,
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Exhibit A
Property
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