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2005-103 Nicklaus Design Agreement for Golf Course Renovation • RESOLUTION 103-2005 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND VILLAGE CLERK TO ENTER INTO AN ACCEPTABLE AGREEMENT WITH NICKLAUS DESIGN, LLC, A FLORIDA LIMITED LIABILITY COMPANY, WHICH AGREEMENT WILL PROVIDE THE VILLAGE WITH REDESIGN AND ASSOCIATED SERVICES FOR THE NORTH PALM BEACH COUNTRY CLUB GOLF COURSE; AND, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA: Section 1. The Village Council of the Village of North Palm Beach, Florida, does hereby authorize the Mayor and Village Clerk to enter into an acceptable agreement with Nicklaus Design, LLC. Section 2. The Mayor and Village Clerk are hereby authorized and directed to enter into the agreement with Nicklaus Design, LLC, a Florida limited liability company, attached as Exhibit "A", after acceptable adjustments are made by the Village Attorney, Mayor and Village Manager. Section 3. This resolution shall take effect immediately upon passage. PASSED AND ADOPTED THIS 10th DAY OF NOVEMBER, 2005. ,,, , ,, . ,~ ,~ '; c)~tl~y.', . ~. .' A'f,TEST: ,~~ ~j~ VILLAGE CLERK NICKLALIS DESIGNS'" • Golf Course Agreement This Agreement is entered into between NICKLAUS DESIGN, LLC, a Florida limited liability company ("Company"), whose address is 11780 U.S. Highway No. 1, North Palm Beach, Florida 33408, and The Village of North Palm Beach ("Owner"), whose address is 501 US Highway No.l, North Palm Beach, Florida 33408, who hereby agree as set forth below. 1. Introduction. Owner is the owner and operator of an 18-hole public golf course and driving range known as the "North Palm Beach Country Club" located in North Palm Beach, Florida (the "Golf Course"). Owner plans to undertake substantial renovations of the Golf Course and Owner wishes to retain Company to redesign the Golf Course, and in such capacity, to provide those specific services set forth in this Agreement. 2. Redesign Services. Owner engages Company to provide redesign services for the Golf Course, including (i) preparation of all plans, specifications, and drawings that are necessary to illustrate, bid and construct the revised course layout and design features for the Golf Course and driving range, construction methods recommended by Company to complete the renovation of the Golf Course to reflect such layout and design according to Company's quality standards (the "Plan Documents"), and (ii) acting as the principal consultant to Owner and Owner's project manager with respect to design issues arising from the Company's redesign of the Golf Course, and assisting them in their review of third party work which affects the preparation or utilization of the Plan Documents. The Plan Documents will consist of a general strategy plan, a clearing plan (if necessary), contour plans, a conceptual golf course drainage plan (the "Conceptual Course Drainage Plan"), a grassing plan, a bunker study plan, and a conceptual landscape plan (the "Conceptual Landscape Plan"). The Conceptual Course Drainage Plan will be limited to showing locations and proposed sizing of perforated drainage pipes and catch basins. It is the intent of Owner and Company that Company will provide its Conceptual Course Drainage Plan to the Owner's project engineer and consult with such engineer regarding anticipated Golf Course drainage characteristics and requirements so that the engineer can prepare a Golf Course drainage plan in final form and integrate the Golf Course drainage as indicated in such plan into the storm drainage system prepared by such engineer for Owner's entire project site. The Plan Documents will also include specifications supplemental to the above plans, where applicable, but will not include shop drawings or engineering plans or drawings required to implement the Plan Documents (which shop drawings or other engineering plans shall be furnished by the Owner's Engineer or other consultant). Company will own and retain the copyright to and all other intellectual property rights in the Plan Documents and all other plans or other written or electronically recorded materials prepared by Company and delivered to Owner. However, Company agrees to permit the duplication and use of such written materials and excerpts therefrom by Owner and persons authorized by Owner as reasonably necessary to complete the redesign and construction of the Golf Course and to permit the ongoing use and maintenance of the Golf Course as built. Owner agrees not to use or permit the use of Company's Plan Documents or related materials or redesign concepts for the construction of any other golf course facility, and Owner will not make or permit any other use of any of such materials without • Company's prior express written consent, except for those promotional uses permitted under Section 5. • Company will have no responsibility to prepare plans, specifications, or drawings for the Golf Course clubhouse, half-way house, shelter houses, sanitary facilities, drinking fountains, maintenance facilities, irrigation system, storm drainage system, dams, bridges, walls, cart paths, utility lines, or any other similar improvements, facilities, or structures incidental to the Golf • Course; provided that Company will render advice, when requested, as to the conceptual location of such facilities or structures in relation to the Golf Course and indicate their conceptual locations and proposed dimensions in the Plan Documents where appropriate and adjust such locations and dimensions as required under Section 7.D., below. Company will also have no responsibility whatsoever with respect to the location, design, engineering, or construction of improvements to real estate adjacent to the boundaries of the Golf Course, including but not limited to roadways, utility lines, drainage, parking lots, recreation facilities, residential lots, or commercial parcels developed by any party in conjunction with the Golf Course. Company will not have any Tiability to Owner with respect to the design, engineering, location, or construction of such improvements, facilities, or structures or any architectural, engineering, or construction work required to integrate such facilities and structures into Company's redesign for the Golf Course. Company will have the right to recommend to Owner, an irrigation consultant to design the Golf Course irrigation system and to integrate such system into Company's redesign. Unless otherwise paid or reimbursed by the provider of irrigation equipment selected by Owner for the Project, Company will pay all fees and expenses charged by the irrigation consultant for the irrigation design services, but such payments will be reimbursed by Owner under Section 9 below upon presentation of Company's invoice and supporting information. Owner will be solely responsible for retaining the services of such irrigation consultant, or other persons approved by Company, for staking and inspecting the installation of the irrigation system in the Golf Course during the construction process, and Owner will .pay all fees and expenses associated with such services. Company acknowledges Owner's long-standing plan for its course closure for renovation in late April 2006, and Company agrees to use its best efforts, subject in all cases to the timely performance of Owner and its other consultants, to complete the production of Plan Documents sufficient to allow the contractor bidding process to commence in early January 2006. Before commencing the Plan Documents, Company will prepare a proposed routing plan for the Golf Course, which will be delivered to Owner no later than thirty (30) days after the later of (i) the date of this Agreement or (ii) Company's receipt of all necessary Site Documents, as defined in Subsection 7C. Company will cooperate with Owner and Owner's other consultants in formulating the final routing plan and will make adjustments as required by governmental authorities and in consideration of Owner's wishes and development requirements, but in a manner consistent with Company's redesign concepts. After Owner's approval of the final routing plan, Company will not commence preparation of the Plan Documents until requested to do so by Owner in writing. Company will use its best efforts to conform to Owner's schedule for the delivery of the Plan Documents. • 2 Company's principal, Jack Nicklaus ("Nicklaus"), will be personally involved in the • redesign of the Golf Course, and he will give his personal attention to the strategy and the redesign details. He will have the right, in his discretion, to personally approve or disapprove all matters affecting the integrity of the redesign for the Golf Course. Company's standard golf course specifications do not include specifications for the sand and organic materials used in the tees and greens. Owner agrees to consider using the standard recommendations of the United States Golf Association ("USGA"). Company will furnish Owner with a copy of such standard USGA recommendations. In the event that Owner chooses not to use such standard USGA recommendations, Owner will notify Company of any modifications deemed necessary by Owner and the reasons such modifications are required. Owner acknowledges that Company will not be responsible for any specifications for sand or organic materials used in the tees or greens and that Company will not have any liability to Owner, or the contractor, or any subcontractor, or any supplier of materials with respect to sand or organic materials or the performance thereof in the tees or greens.. 3. Consulting Services. In addition to preparation of the Plan Documents, Owner is engaging Company to consult with Owner in regard to (i) the letting of construction contracts for construction of the Golf Course, including Owner's evaluation of bid responses from potential contractors; and (ii) the review of contractor's implementation of the Plan Documents during the performance of the construction work on the Golf Course (the "Construction Work"). A. Consultation Concerning Contracts. As part of the services hereunder, and if requested by Owner, Company will consult with and make recommendations to Owner and Owner's representatives regarding the letting of contracts by Owner for the performance of various aspects of the Construction Work. Further, upon request of Owner, Company will render the following additional services: -- (1) Company will assist Owner in soliciting price bids from responsible contractors, and will assist Owner's legal counsel in the preparation of bid packages by preparing all required design documents and consulting with Owner and Owner's counsel regarding the third party documents to be included in such packages. (2) Company will review bids and qualifications of prospective contractors and advise Owner of price comparison information based upon Company's prior experience with similar projects. (3) Company will assist Owner in determining the contractual relationships that are necessary to complete the Construction Work. (4) Company will consult with Owner regarding schedules for the Construction Work and recommend a desired schedule for the contract work for Owner's approval and execution. • 3 Owner acknowledges that the actual bid prices or negotiated contract prices for the • Construction Work will be subject to market forces at the time contracts are solicited, and Company does not represent or warrant that actual prices for work and materials will be within the limits of any cost estimates or budgets developed for Owner prior to the bidding or negotiation of contracts. In connection with the letting of contracts for the Construction Work, Company will provide to Owner Company's standard forms of (i) General Conditions to the Construction Contract (the "General Conditions") and (ii) Technical Specifications for Golf Course Construction (the "Specifications"). Owner acknowledges that the Specifications set forth methods required to assure the integrity of Company's redesign and must be incorporated in the construction contracts to be entered into between Owner and the general contractor selected by Owner for the Construction Work, with only those modifications approved by Company in writing. Owner further acknowledges that the General Conditions have been developed by Company to reflect its role as a consultant to Owner and Owner's representatives relative to the Construction Work. Owner will have the right to use or not use the form of General Conditions provided by the Company, with such changes as Owner's legal counsel may recommend; provided, however, that Company will not, under any circumstances, be liable to Owner or any third parties for Company's failure to discharge any responsibilities or adhere to any procedures that are not set forth in the General Conditions as furnished to Owner by Company or otherwise required by this Agreement. Owner will be responsible for obtaining appropriate legal representation in connection with the preparation and review of all construction contracts and documents that are necessary or prudent under applicable law, and the parties acknowledge that Company's provision of consulting services or forms of documents is not intended as legal advice by Company and will not be relied upon as such by Owner. B. Consultation Concerning Implementation of Plan Documents Throughout the progress of the Construction Work, Company will assign one of its personnel (the "Design Associate") to consult with Owner on a regular basis. The Design Associate will have the right to review all issues relating to the performance of the Construction Work in order to assist Owner in evaluating whether or not the Plan Documents are implemented during the Construction Work. Company will direct the Design Associate to periodically visit the Golf Course site in order to ascertain the contractor's actual adherence to the Plan Documents and Nicklaus' design concepts and to review his conclusions with the project manager retained by Owner pursuant to Subsection 7.B. Owner and Company acknowledge that Company reserves the right to review the Construction Work at such times and under such circumstances as it may deem appropriate in order to determine any contractor's substantial compliance with the design concepts and specifications as expressed in the Plan Documents, and that Company will have the right to recommend in writing that Owner temporarily stop any part of the Construction Work as reasonably necessary to protect the integrity of the Golf Course redesign, without liability to Owner or any contractor. Company may, where appropriate, recommend that Owner disapprove • or reject any work as failing to conform to the Plan Documents and relevant construction contracts, or Company may, with Owner's written approval, make such adjustments to the design 4 renderings, or other documents or data files prepared by Company and delivered to Owner. • Owner acknowledges that Company does not have the right to authorize the use of the "Golden Bear" name and logo (the "Golden Bear Marks") and that the right to use the Golden Bear Marks is not included in the Endorsement licensed to Owner hereunder, and that Owner will not be authorized under this Agreement to utilize the Golden Bear Marks or any name or logo similar to such marks or derived therefrom in connection with the identification or promotion of the Golf Course. Company agrees to consult with Owner to determine a mutually acceptable strategy for using Nicklaus' role as the principal designer involved in the redesign of the Golf Course to promote the Golf Course in advertising, promotional, and public relations materials developed by Owner where the Golf Course is featured. A. Owner acknowledges and agrees that all uses of the Endorsement will be limited and directed to the role of Nicklaus and Company's staff in redesigning of the Golf Course. Owner is not authorized to utilize the Endorsement in any manner to represent or imply that (i) any non-golf recreational facilities of Owner (including facilities of the North Palm Beach Country Club other than the Golf Course) have been endorsed or approved by Company or Nicklaus, or (ii) Company or Nicklaus will be involved in, or either of them has endorsed or approved of, the membership structure, management, or operation of the Golf Course and/or any other recreational facilities developed or operated by Owner. Subject to the foregoing, Owner may include references to the fact that Company and/or Nicklaus redesigned the Golf Course in promotional materials utilized by Owner to advertise the North Palm Beach Country Club or to promote the Village of North Palm Beach generally as a community. Owner will be responsible for enforcing compliance with the provisions of this Section by all other parties involved with the Golf Course and related facilities, and for assuring that persons authorized by Owner to participate in the operation and marketing of the North Palm Beach Country Club or the promotion of the Village of North Palm Beach do not make any unauthorized or improper uses of the Endorsement in connection with such activities. B. Owner may make authorized uses of the Endorsement in newsletters, brochures, promotional films and videotapes, press releases, and similar promotional materials and in print media advertisements. Owner will not in any way make or permit any use of any part of the Endorsement without the express. written approval of Company prior to use. If requested by Owner, Company will approve standard advertising formats for use of the Endorsement, which may be utilized thereafter in the same manner approved by Company. Owner will submit a sample of any proposed use of the Endorsement to Company for approval prior to use, and Company will use its best efforts to respond to Owner within ten (10) days of its receipt of each sample. Unless otherwise agreed in writing by Company, samples submitted for approval will require actual production photography, text, and layouts for print media uses and proposed final edits for audiovisual media uses. Owner acknowledges that it is essential for the protection of the reputation and financial interests of Company, Nicklaus, and Company's design clients (including Owner) that Company has continuing control over the manner in which the Endorsement is utilized to market golf courses designed by Company. Accordingly, Owner agrees to terminate its use, and to use its best efforts to terminate the continued use by other parties authorized by Owner to participate in marketing activities, of any advertising, • promotional, or publicity materials that utilize the Endorsement after receipt of a written notice from Company requesting such termination and stating the, reason for such request. 6 of the Golf Course as Company may deem appropriate, in its discretion, to conform the Plan • Documents to any Construction Work as built. Notwithstanding the foregoing, Company will not be responsible for the performance of, or for any improper work by, the contractor or any subcontractor or specialty contractor performing any of the Construction Work, and the review of any Construction Work by Company will not release any contractor from its obligations to Owner to perform such work according to contract or relieve Owner's project manager from his duty to monitor the performance of such work. Company will not be required to supervise the performance of any contractor or subcontractor, or to make exhaustive or continuous on-site inspections to check the quality or quantity of the Construction Work. Company will not be responsible for the means, methods, techniques, sequences, or procedures of construction, or the safety programs and precautions incident thereto, of the contractor retained by Owner to construct the Golf Course or of any subcontractor and Company will not be responsible for the contractor's or any subcontractor's failure to perform the Construction Work in accordance with the Plan Documents. 4. Agronomy Consulting Services. Owner acknowledges and understands that proper selection and care of turf grass and other plantings required in connection with the Golf Course are essential to the maintenance of the quality standards associated with the Company's designs. Therefore, Owner will provide the services of a qualified agronomist having experience with the growth and management of golf course turf and related plantings to consult with Owner, Owner's project manager, and Company commencing on or before the time Owner requests production of the Plan Documents and continuing until the first anniversary of the date the Golf Course opens for play. Owner's agronomist will develop preliminary grassing specifications for the Golf Course for review with Company and will develop final grassing specifications and a written turf management program for the Golf Course based upon Company's comments. Company will consult with Owner's agronomist to assure that issues relating to the playability and aesthetics of the turf and all related plantings selected by Owner's agronomist meet Company's quality standards for a golf course designed by Company. The parties agree that Company will have the right to approve the agronomy consultant retained by Owner, and Company will provide Owner with recommendations regarding agronomy consultants experienced in the growth and maintenance of golf courses, if requested by Owner. Company will not be responsible for the means, methods, or results of Owner's agronomy consultant, or for any judgments made by such consultant relating to the development, implementation, or modification of the final grassing and turf management plan for the Golf Course. However, Company will have the right, at its cost, to have the Golf Course inspected by an agronomist selected by Company at any time and from time to time during the License Period in order to review and assist the parties in resolving agronomic issues which, in the reasonable opinion of Company, may adversely impact the Owner's ability to maintain the quality of the Golf Course as required under this Agreement. 5. Marketing Rights and Services. During the License Term (as defined in Section 12), Owner is authorized to use the following intangible rights of Company (collectively, the "Endorsement") to advertise, publicize, and market the Golf Course as redesigned by the Company, subject to the terms and conditions of this Section: (i) the names "Nicklaus Design" • and "Jack Nicklaus", and the phrase "redesigned by Jack Nicklaus", (ii) Nicklaus' likeness and other identifying information relating to his career as a professional golfer and golf course designer, (iii) Company's Nicklaus Design logo, and (iv) copies or replicas of plans, artist's 5 • C. Owner is also authorized to photograph and record images of the likenesses and voices of Nicklaus and Company's staff in connection with site visits and public relations activities performed in connection with the Golf Course, provided that any such materials and artwork or transcriptions made from such materials shall be considered part of the Endorsement and subject to the terms and restrictions of this Section 5. Owner will furnish Company with copies of all photographs taken, film and videotape footage shot, and audio recordings made by or on behalf of Owner which involve Nicklaus, and Company will have the right to use, free of charge, all or any part of such materials and any reproductions thereof. 6. Shaping.Services. Owner recognizes the importance of the final shaping work for the Golf Course in order to assure that the special features generally associated with a golf course designed by Company are incorporated into the Golf Course. Therefore, Owner has agreed to consult with Company as to the person retained by Owner to perform such shaping work. Although Company will not employ or contract with the shaper for the Golf Course, and will not be responsible for the means, methods, or results utilized to perform the work assigned to him, Owner acknowledges that Company and Nicklaus will establish design parameters for the shaping work required to complete the redesign of the Golf Course and will have the right to approve or request the modification of final shaping as part of the field design services provided under this Agreement, provided that Company will secure Owner's written approval of any modification which requires an increase in the contract price or extension of the contract time for the shaping work. 7. Owner's Responsibilities. So that Company can adequately perform its duties herein: A. Owner will provide to Company full, accurate, and complete information regarding its requirements for the Golf Course, and Owner will use its best efforts to notify Company regarding the requirements and/or recommendations of third party consultants and governmental agencies that may restrict or otherwise impact the redesign of the Golf Course. B. Owner will employ a qualified and experienced project manager who will be present and available at the Country Club on a daily basis to supervise the performance of the Construction Work and to represent Owner in its dealings with the contractors performing the Construction Work. Such project manager or another authorized representative designated by Owner will render decisions in writing pertaining to the Golf Course promptly in order to avoid any unnecessary delay in the progress of the services to be performed by Company under this Agreement. C. Owner will furnish, at Owner's cost, before Company prepares the final routing plan for the Golf Course, a certified land survey illustrating grades and lines of streets and adjoining properties, rights-of--way, restrictions, easements, zoning, deed restrictions, boundaries and contours of the site, locations, dimensions, and complete data pertaining to existing buildings, other improvements, and trees, and full information concerning available service and utility lines, both public and private, above and below grade, including inverts and depths, aerial • photographs, topographical maps, soil reports, and other information relative to Owner's site as Company may reasonably require (the "Site Documents"). All pertinent information will be provided by Owner to Company in CAD format acceptable to Company. 7 • D. Owner will be responsible for retaining the services of qualified professional consultants to review the final routing plan and Plan Documents where required, in order to assure compliance with all applicable laws and regulations affecting the site, including but not limited to environmental, wetlands, land use, zoning, and other similar matters. Company agrees to work with such consultants as required in the redesign process. Owner will supply Company with copies of all known construction, engineering, zoning, environmental, and other regulations applicable to the Golf. Course. Although Company will take care to prepare the final routing plan and Plan Documents in compliance with such regulations, it will be Owner's responsibility to ensure such compliance. If requested to do so by Owner, Company will adjust the final routing plan and Plan Documents to conform with such regulations. In connection with the foregoing, Owner will employ the services of licensed engineers for the purpose of designing the storm drainage system for the Golf Course, bridges, walls, cart paths, and any other facilities or structures which require the services of an engineer. Such engineers will also be responsible for advising Company regarding the impact of applicable regulations and engineering practices upon Company's Plan Documents and for coordinating the storm drainage system with other drainage features of the Golf Course. Owner acknowledges that Company's recommendations (as set forth in the Plan Documents) for storm water drainage, conceptual cart path locations, soil and materials movement and placement, and other similar recommendations must be reviewed and confirmed by qualified licensed engineers, who must be retained by Owner at its cost and expense. Owner will not be required to retain the services of a separate soils engineer to provide an analysis of the Golf Course site, provided however, that except to the extent of risks assumed by the contractor awarded the Construction Work, Owner shall be solely responsible for any negative impacts of existing soil conditions upon the construction of the Golf Course or the stability of the Golf Course as designed by Company. E. Owner will also furnish the services of any other qualified consultants when such services are required due to specific requirements of the site selected by Owner for the Golf Course, or are deemed necessary or appropriate by Company and/or Owner. Such consultants may include irrigation consultants, planners, landscape architects, and other professionals. If required under state or municipal laws or regulations applicable to the Golf Course site, Owner acknowledges that Owner will be responsible for retaining the services of a licensed landscape architect to review the Conceptual Landscape Plan and to provide those services with respect to the development and implementation of the final landscape plan and specifications that can only be furnished by a licensed person under applicable laws and regulations. The services, information, surveys, and reports required by this Section 7 to be provided by Owner to Company will be furnished at Owner's expense. Company and Owner agree that Company will be entitled to rely upon the accuracy and completeness of such services, information, surveys, and reports. 8. Company s Fee. Owner will pay the following fees to Company to defray the costs incurred by Company in connection with its design services: • o Ptan Production Services: Thi w s ould entail those design and consulting services required in connection with the preparation of the Plan Documents and review of such 8 documents with Owner and its other third party consultants. This time is billable hourly • at the rate of $150.00/hour and it is estimated that there will be approximately 120 hours of Plan Production work. o Contract Consulting Services: Consulting services rendered after delivery of the final Plan Documents and prior to commencement of the Construction Work will be billable hourly at the rate of $150.00/hour as actually used. o Site visits by Company's staff: During the course of the Construction Work, the Design Associate will visit the site periodically to ensure that Jack's design concepts are being implemented in the field. Company will charge Owner a rate of $500.00/per day for the required site visits. It is estimated that 20-25 site visits will be required during the Construction Work. Company will only charge Owner for time actually expended on this project, as indicated from records maintained by Company's staff, however, Owner's maximum cumulative liability for any combination of hourly or daily fees incurred hereunder shall be limited to thirty thousand dollars ($30,000) (the "Maximum Fees") except under the limited circumstances expressly provided below. If, for any reason, Owner or any of its professional consultants requests Company to make material changes to the design of the Golf Course which affect the preparation or use of any of the Plan Documents after Owner's approval of the final routing illustrating the proposed redesign of the Golf Course, the parties will negotiate in good faith an appropriate increase in the Maximum Fees to cover additional work required from Company to implement such changes. Company will invoice Owner for all Plan Production Services upon delivery of final Plan Documents and will invoice Owner for all other services upon completion of grassing of the Golf Course. Each such invoice shall indicate the time expended at the agreed rates, and payment in full shall be due from Owner within thirty days of receipt. Subject to any adjustment made with respect to Plan Production Services, Company agrees to accept the Maximum Fees set forth above for all work within the scope of services called for and required in this Agreement, and if the actual hourly and/or daily charges required by Company to complete such services exceed such agreed amount, Company will write off any excess charges in its final invoice as a courtesy to Owner. 9. Expenses. Owner will pay Company for all reasonable out-of-pocket expenses incurred by Company for printing and duplication of Site Documents and Plan Documents, and for mail, courier and express shipments if Company is required to send printed documents or written notices to Owner, any third party consultant, or any bidder or contractor in connection with performing Company's services under this Agreement. Such expenses shall be reimbursed promptly upon Company's submission of periodic statements and supporting documentation to Owner. In addition to the expenses listed above, Owner further agrees to reimburse Company for the fees and costs incurred by the Company to obtain athird-party design of the irrigation system, unless other arrangements are made by Owner to have such fees paid or reimbursed by the provider of irrigation equipment selected by Owner for the Project. Any irrigation design fees paid by Company shall be reimbursed as paid by Company to the imgation designer without • markup upon presentation of the irrigation designer's invoice and evidence of payment of such invoice by Company. 9 10. Changes in Golf Course. if the Golf Course is not constructed substantially in • accordance with plans and specifications prepared or furnished by Company or approved by Company in writing, or if any substantial change is subsequently made to the Golf Course without the written approval of Company with respect to both design concept and construction execution, then the License Term will terminate automatically, and thereafter Owner will not have the right to state or represent in any manner that the Golf Course was redesigned by Company and/or by Nicklaus or to use the Endorsement in any manner in relation to the Golf Course. Owner acknowledges that Owner's right to utilize copyrights and intellectual property of Company granted under Section 1 does not include the right to duplicate or use Plan Documents or any other written or electronically recorded materials owned by Company to obtain additional golf course design work from third parties or construct any additions or modifications to the Golf Course without the prior express written consent of Company, and Owner hereby releases Company from any obligation and agrees to indemnify and hold Company and Nicklaus harmless from and against any loss, liability, or claim arising out of any such use of materials prepared by the Company, unless expressly authorized as provided herein. 11. Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns; provided that neither this Agreement nor any rights hereunder may be assigned directly or indirectly by either party without first receiving the prior written consent of the other party. Notwithstanding the foregoing, without such consent, (a) Company may assign this Agreement to another entity controlled by Nicklaus which has the resources, rights and experience required to complete the performance of all outstanding obligations of the Company under this Agreement, (b) Company may assign its rights to payment of some or all of its compensation hereunder, and (c) Owner may assign its rights hereunder to another entity controlled by or under common control with Owner. In the event that Owner sells or otherwise transfers the Golf Course to a reputable person or entity which agrees in writing to assume its obligations under this Agreement and to maintain the integrity of the Golf Course as redesigned by Company, Company agrees t..".at it will not unreasonably ~~°~ withhold or deny its consent to an assignment of this Agreement as a part of such transfer. 12. Term and Termination. Unless this Agreement is earlier terminated as provided herein: (i) the period during which Company will render its redesign and consulting services under this Agreement (the "Term of Service") will commence upon execution of this Agreement and continue until Owner's acceptance of the Construction Work, and (ii) the period during which Owner will be authorized to utilize the Endorsement (the "License Term") will commence upon execution of this Agreement and continue indefinitely unless the Golf Course is modified without compliance with the requirements of Section 10. Company may terminate this Agreement, including the Term of Service and the License Term, by giving written notice, and a corresponding thirty (30) day right to cure, to Owner upon the occurrence of any of the following events or circumstances: (i) if any design requirements of the Golf Course site or changes in Company's proposed redesign required by Owner conflict with Company's design standards, (ii) if the Construction Work has not commenced within two (2) years after the date of this Agreement, (iii) if Owner abandons the Golf Course renovation project, (iv) if Owner fails to make any payment to Company when due, (v) if Owner uses or permits the use of any part of the • Endorsement without Company's express written approval prior to use, (vi) in the event of the bankruptcy or insolvency of Owner, (vii) if Owner does not operate the Golf Course at a quality 10 level consistent with Company's and/or Nicklaus' reasonable standards, (viii) if Owner does • anything to discredit or otherwise adversely affect or diminish Company's and/or Nicklaus' name, stature, or reputation, or if any circumstances arise which cause Company's and/or Nicklaus' association with Owner to reflect adversely upon Company and/or Nicklaus, or (ix) in the event of any other material breach of this Agreement by Owner. Owner may terminate this Agreement by giving written notice thereof to Company in the event of any material breach of this Agreement by Company, or in the event of the bankruptcy or insolvency of Company. Owner's election to terminate this Agreement pursuant to this Section 12 will not constitute a waiver of any claims Owner may have against Company for breach of this Agreement, and any such termination by Owner will not release Company from any liabilities incurred prior to the effective date of such termination. Upon termination of this Agreement during the Term of Service, for any reason provided for in this Section 12, Company will have no further obligation to perform any services under this Agreement or to deliver any further Plan Documents or other written materials to Owner, and Owner will cease using and will have no further right to use, in any manner whatsoever, any Golf Course routing, or any of the Plan Documents, or any other written or electronically recorded materials prepared by Company under this Agreement. Upon termination of this Agreement during the License Term, Owner will cease using and will have no further right to use any part of the Endorsement to identify and/or market the Golf Course, and Owner will be responsible for assuring that any such use is terminated by all parties involved in the development or marketing of the Golf Course and any related facilities or real estate within thirty (30) days after the effective date of such termination. In the event this Agreement is terminated, Owner will remain obligated to pay any unpaid amount of Company's Fee already due and payable, and to pay Company for any unpaid or unreimbursed expenses already incurred under Section 9, but otherwise Owner will not be obligated to make any further fee payments under Section 8 or expense payments or reimbursements under Section 9. Upon termination of this Agreement for any reason provided for in this Section 12, the following rights and obligations of the parties under this Agreement will survive such termination: (i) Company's ownership rights relative to the copyright and all other intellectual property rights in and to the Plan Documents and all other plans or other written or electronically recorded materials prepared by Company and delivered to Owner; (ii) all obligations and liabilities of the parties hereunder already accrued at the time of such termination; (iii) the liability and indemnity obligations of the parties under Section 13 with respect to claims that arose (whether or not asserted) prior to such termination; and (iv) the arbitration provisions in Section 16. 13. Liability. Company will be liable to Owner for damages caused by Company's breach of this Agreement, and Owner will be liable to Company for damages caused by Owner's breach of this Agreement, provided that neither party will be liable to the other for any consequential or incidental damages arising out of such a breach. In the event a third party asserts any claim relating to the Golf Course, Owner agrees to indemnify, defend, and hold • harmless Company, its officers, directors, employees, consultants, and agents, and Nicklaus against and from any and all liabilities, losses, costs, expenses, or damages incurred by them as a 11 result of such claim, including reasonable legal fees and expenses of settlement or defense • related thereto, unless such claim results from negligence of the Company or a subcontractor retained by Company in the course of its performance of services within the scope of services which Company has agreed to perform under this Agreement or from a breach of this Agreement by Company. Without limiting the generality of the foregoing indemnity, Owner acknowledges that Company will be indemnified from claims arising out of the acts, errors, omissions, strict liability duties, and/or financial obligations of Owner and/or its principals, employees, co- venturers, agents, and independent contractors in connection with the redesign (other than golf course design work performed by Company), renovation, construction, operation, use, and maintenance of the Golf Course, and any related facilities or structures. Notwithstanding anything contained within this Section 13 or any other provisions of this agreement concerning the obligations of Owner to the Company, Owner does not waive its statutory liability limitations of $100,000.00 - $200,000.00 as set forth in Section 768.28 of the Florida Statutes. Owner will use its best efforts to have Company and Nicklaus named as additional indemnified parties in all third party contracts relating to the development, construction, and operation of the Golf Course, provided that the inclusion or omission of such names will not prevent Company and Nicklaus from enforcing their indemnification rights under this Section 13 or asserting their legal or equitable rights as intended direct third-party beneficiaries of any indemnification provided to Owner by such parties. Subject to the limitations provided herein, Company agrees to indemnify and save and hold Owner, its council, employees and agents, harmless of and from any and all claims, costs, losses and damages resulting from the negligence of Company in the course of performance of services within the scope of services which Company has agreed to perform under this Agreement or from a breach of this Agreement, which indemnification shall include reasonable attorneys' fees; provided however, that the maximum total amount payable by Company to all indemnitees as a group with respect to any and all claims for indemnification made hereunder shall not exceed the total amount of fees actually paid by Owner under Section 8 of this Agreement, and Company may at any time fully satisfy and discharge all of its obligations under this Section by tendering a refund of such fee payments to Owner in response tc any such claim. Company and Nicklaus will in no event be responsible or liable for any improper performance by the contractor or any subcontractor, or any independent professionals retained by Owner, or any testing laboratory, or for the installation or use of any improper or defective materials or equipment or structures on the Golf Course, or for the failure of any materials or equipment to perform in the manner expected or specified. Owner acknowledges that the foregoing provision is necessary in order to allow Company to have free access to information regarding the work of independent third parties without assuming any obligation to Owner to assure or monitor their performance, and Owner hereby waives any claims it might otherwise assert under any applicable legal theory which would conflict with such provision. 14. Insurance. Throughout the progress of the Construction Work, Owner will secure and maintain in force, at its own cost, General Liability insurance meeting the applicable minimum requirements of the State of Florida for a municipality owning and operating a golf course with reputable insurance companies for risks commonly insured in connection with such ownership • and operations, or to the extent such insurance is not customarily maintained by municipalities in Florida, such other proof of financial responsibility for damage claims as may be required by 12 law. Owner shall insure that Company and Nicklaus are noted on any insurance policy • maintained hereunder where necessary as an additional insured and that endorsements are made thereon that (i) the insurer will not cancel the policy for any reason whatsoever without first giving Company not less that fifteen (15) days notice in writing of its intention to cancel the policy and (ii) no act, omission, breach of warranty, misrepresentation or non-disclosure by Owner will enable the insurer to avoid the policy in whole or in part against Company. Owner acknowledges that its indemnification obligations to Company and Nicklaus as provided in Section 13, above, shall not be diminished or reduced by Owner's failure to maintain liability insurance coverage or designate Company or Nicklaus as an insured party with respect to any claim covered by such indemnification obligation. Throughout the progress of the Construction Work, Company will secure and maintain in force, at its own cost, the following minimum insurance coverage, which shall be applicable, without limitation, to the activities of all personnel of Company visiting the site of the Golf Course: (i) commercial General Liability insurance providing at least one million dollars ($1,000,000) combined single limit coverage, (ii) Worker's Compensation and Employer's Liability coverage in the minimum amounts which Company is required to carry as an employer in the State of Florida, and (iii) PIP and automobile liability insurance meeting all currently applicable financial responsibility standards imposed the State of Florida. 15. Notices. Notices between the parties will be in writing and will be deemed to have been properly given if delivered by express courier service or by U.S. mail, return receipt requested, to the address of the receiving party as set forth on the first page of this Agreement, or if sent by facsimile to the number set forth on the execution page hereof. Notices will be effective on the date of receipt if sent by mail or courier, and facsimile notices will be effective on the next business day following the date of confirmation of error-free transmission. 16. Arbitration. All disputes arising out of this Agreement or the rights or obligations of the parties hereunder will be finally settled by binding arbitration before a sole ar'oit~atur iloil]iilatcu"'u1 appointed in accordance with the Commercial Arbitration Rules of the American Arbitration Association then obtaining (the "AAA Rules"), and each of the parties hereby agrees to submit all such disputes to arbitration. Arbitration proceedings will be conducted in Palm Beach County, Florida. The AAA Rules will govern the conduct of all such proceedings, the submission of evidence, and the procedures to be used in any evidentiary hearings conducted by the arbitrator. Each party agrees that the foregoing agreement to arbitrate, and any award rendered in connection with any such arbitration, may be enforced against such party in any court having jurisdiction over such party, and that Owner hereby agrees to submit to the personal jurisdiction of the state and federal courts located in Palm Beach County, Florida, in connection with any action to enforce the foregoing agreement to arbitrate or any award rendered by an arbitrator under authority of this Agreement. In any arbitration proceedings conducted under this Section, the arbitrator shall have the right to award the reasonable attorneys' fees incurred by the prevailing party in connection with such proceedings in addition to damages and costs, and the prevailing party in any action filed in an appropriate court to enforce this agreement to arbitrate or any award granted hereunder shall be entitled to receive its reasonable attorneys' fees and costs incurred in connection with such action. • 17. Late Payment Charges. Any unpaid installment of Company's fee or any expense reimbursement to Company due and payable under this Agreement will bear interest at the rate of twelve percent (12%) per annum from its due date until paid in full. So long as any such 13 installment remains unpaid, Company's obligations under ±his Agreement will be suspended. • Company will be entitled to recover its reasonable expenses and attorneys' fees incurred in connection with efforts to collect payments in arrears and late charges, regardless of whether or not legal action is instituted to collect such payments. 18. Miscellaneous. This Agreement will be construed in accordance with and governed by the laws of the State of Florida. This written Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and is the final expression of the agreement between the parties. This Agreement was executed by the parties as of ~~~,E/j~,~j~n ~, 2005. COMPANY: NICKLAUS DESIGN, LLC B v' Its: ~ / Facsimile No. (561) 227-0302 ~~~~~~ , ~,, f~_~_ OWNER: The Village of North Palm Beach By. o Its: i!r1i~02 Facsimile No. (3~//~~~~~ -7y~O i~~i~ v//~ ~Z/~S s~/,¢y~- ~~~~e~ ~~/~/ar 14