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HomeMy WebLinkAbout8616RESOLUTION NO. 8616 A RESOLUTION APPROVING AGREEMENTS RELATING TO THE CITY PARK GOLF COURSE AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME WHEREAS, Woodside Golf, Inc. desires to terminate its management agreement for the City Park Golf Course, and WHEREAS, Zaremba Enterprises, Inc. is wiling to undertake the management of the City Park Golf Course in conjunction with its management of the Walkingstick Golf Course, and WHEREAS, City is willing to terminate Woodside Golf, Inc.'s management agreement and permit Zaremba Enterprises, Inc. to manage the City Park Golf Course. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that SECTION 1 The following agreements relating to the management of the City Park Golf Course, copies of which are attached hereto and incorporated herein having been approved as to form by the City Attorney, are hereby approved: (a) Contract between Woodside Golf, Inc. and the City dated as of January 25, 1999; and (b) Addendum between Zaremba Enterprises, Inc. and the City dated as of January 25, 1999. SECTION 2 The President of the City Council is authorized to execute the agreements with such modifications thereto as the President of the City Council and City Attorney shall deem to be in the best interest of the City in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: January 25, 1999 By Cathy A. Garcia Councilperson A` LEST: -2- i APP VED: r President of the City Council CONTRACT THIS CONTRACT entered into as of January 25, 1999 between the City of Pueblo, a municipal corporation (the "City "), Woodside Golf, Inc., a Colorado corporation (the "Manager ") and Gary Woodside of Pueblo County, Colorado ( "Woodside "), WITNESSETH: WHEREAS, Manager and City entered into a City Golf Course Management Agreement dated as of October 12, 1993 (the "Management Agreement "), and WHEREAS, Woodside personally guaranteed Manager's performance of the Management Agreement, and WHEREAS, Manager and Woodside desire to terminate the Management Agreement, and WHEREAS, City is willing to terminate the Management Agreement upon the terms and conditions contained herein. NOW, THEREFORE, in consideration of the foregoing and mutual covenants of the parties set forth below, City, Manager and Woodside agree as follows: 1. The Management Agreement shall cancel and terminate at 12:00 noon Friday, January 29, 1999 (the "Termination Date ") and each party shall be released and discharged from all obligations thereunder except those existing on Termination Date and Manager's obligations under paragraph 6 of the Management Agreement which shall survive Termination Date. 2. On Termination Date Manager shall sell, assign and transfer by appropriate bill of sale the pro -shop inventory, furniture and fixtures listed in attached Schedule "A" (the "Assets "). In consideration of such sale, assignment and transfer City will (a) undertake to discharge Manager's certificate credits listed in attached Schedule `B" by arranging with the manager of Walkingstick Golf Course to honor the certificates listed in Schedule "B" provided such certificates are surrendered to the manager of Walkingstick Golf Course for golf merchandise prior to May 1, 1999, and (b) deliver to Manager City's check payable to Manager and the Internal Revenue Service in the amount of $3,000.00. Prior to Termination Date, City will inventory the Assets and Manager shall cooperate in said inventory. After such inventory, Manager shall deliver to and /or City may collect all proceeds from the sale of pro -shop inventory and certificates surrendered in exchange for pro - shop inventory. 3. City is not purchasing, assuming or taking -over Manager's business or any of its assets, debts, liabilities or obligations except as specifically set forth in paragraph 2 hereof. City and Manager further stipulate and agree that all Manager's employees are employees of Manager and shall not be or be construed to be or to become employees of City. 4. Manager and Woodside represent and warrant that (a) Manager is the owner of and has good and marketable title to the Assets free of all liens, security interests and encumbrances and Schedules "A" and `B" are accurate and correct. (b) The execution and delivery of this Contract and its performance by Manager and the sale of the Assets have been duly authorized by Manager's board of directors and shareholders, and this Contract is a valid legal agreement enforceable against Manager in accordance with its terms. (c) Manager has paid or will make arrangement for the payment of all employee wages and benefits, all state and federal employee income tax withholding, Federal Social Security Tax (FICA) withholding, employment tax, unemployment insurance, sales and use taxes, and all other business related taxes or governmental charges (collectively "Manager's Obligations ") through January 29, 1999. (d) Manager and Woodside will indemnify, defend and hold City, its officers, agents and employees harmless from and against Manager's Obligations. 5. All percentage fees, if any, payable by City to Manager pursuant to paragraph 5 of the Management Agreement through January 29, 1999 shall be paid within twenty (20) days after Termination Date. Manager acknowledges receipt of the Management fee for the month of January 1999 and City agrees that such Management fee shall not be pro -rated or adjusted. 6. On Termination Date Manager shall surrender and deliver to City (a) all remaining operating supplies, fertilizer and materials, the purchase of which was reimbursed by City, and (b) the Golf Course and all facilities thereon including equipment, fixtures and machinery furnished or made available by City in as good condition and state of repair as the same were at the time of delivery to Manager or thereafter improved by City or Manager, reasonable use and wear excepted. 7. This Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns. 8. This Contract shall be governed by and construed in accordance with the laws of the State of Colorado and may not be modified or amended except by written instrument signed by all of the parties hereto. 9. Time is of the essence of the Contract. 10. All representations and warranties of the parties contained herein shall survive Termination Date. IN WITNESS WHEREOF, the parties have signed this Contract. -2- So'd _Id101 PUEBLO, A MUNICIPA CORPORATION B President of the City Council [SEAL] Atte , r I't, �' City at x _I_ WOODSIDE GOLF, INC. By President [SEAL] Sozso ' d 92PST9S 01 331 dd0 MUD a399Uf WOd-A SS : V T 666T- SE-Ndf ADDENDUM THIS ADDENDUM entered into as of January 25, 1999 between the City of Pueblo, a municipal corporation (the "City ") and Zaremba Enterprises, Inc., a Colorado corporation, (the "Manager "), WITNESSETH: WHEREAS, City and Manager entered into the Walkingstick Golf Course Management Agreement dated November 13, 1995, and WHEREAS, the management agreement for the operation of the City Park Golf Course by Woodside Golf, Inc. is being terminated, and WHEREAS, Manager is willing and competent to undertake the management of the City Park Golf Course, and WHEREAS, City is desirous of Manager undertaking the management of the City Park Golf Course. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Manager agree as follows: 1. Manager shall effective 12:00 o'clock noon, Friday, January 29, 1999 (the "Commencement Date ") assume and undertake the management and operation of the City Park Golf Course as an independent contractor for and upon the same fees and percentages, terms, covenants and conditions contained in the City Park Golf Course Management Agreement dated October 13, 1993 between the City and Woodside Golf, Inc. (the "City Park Golf Course Management Agreement ") which is attached hereto and incorporated herein as if set out herein in full. Manager will abide by and comply with all provisions and covenants contained in the City Park Golf Course Management Agreement except paragraph 13 thereof and the prohibitions contained in paragraph 3(t) against selling golf clubs or other golf related merchandise at or from any other location within Pueblo County, Colorado. 2. Manager shall operate and manage the City Park Golf Course in addition to managing and operating the Walkingstick Golf Course during the term of this Addendum. 3. The term of this Addendum shall start on Commencement Date and end on December 31, 2000 unless sooner terminated as herein provided. The Addendum may be terminated as provided in paragraph 7 of the City Park Golf Course Management Agreement, and may be terminated by City, at any time, with or without cause, and without penalty or liability, upon ninety (90) days prior written notice given by City to Manager specifying the date of termination. 4. City will sell and transfer to Manager and Manager will purchase the pro -shop inventory being purchased by City from Woodside Golf, Inc. for a purchase price of $8,000.00. Manager will honor merchandise certificates listed on the attached Schedule "B" by exchanging pro- shop golf merchandise at retail prices for certificates surrendered to Manager prior to May 1, 1999. City will allow a credit against the pro -shop golf inventory purchase price for an amount equal to the wholesale price plus 15% of the pro -shop golf merchandise exchanged by Manager for the merchandise certificates. Manager shall keep accurate records of such exchanges and prices and City and Manager shall adjust the purchase price and credit exchange prices on or before July 1, 1999. 5. Time is of the essence hereof. This Addendum shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided Manager may not assign this Addendum without the prior written consent of the City. 6. This Addendum shall be governed by and construed in accordance with the laws of the State of Colorado and may not be modified or amended except by written instrument signed by each party. IN WITNESS WHEREOF, the parties have signed this Addendum. PUEB r , a Municipal rporation By President of the City Council [SEAL] Attest: 0, 4" v. City C7e ZAREMBA ENTERPRISES, INC. By President [SEAL] Attest: � (/1 600 � . 1C /� ►tea Secretary -2- Recorded ............................... o'clock ........... M .. ................. ............... I ......................... .............. RecepLionNo .......... .............................. ........................................ ..... . ......................... Recorder. K Now ALL MEN BY TuESEPRESENTS: That .......... f ...... I.RQ .............................. ............................. of the.. . .......................... 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IN WITNESS WHEREOF, The party. ......... of the first part ha.s ......... hereunto set .... 11.s hand .... and seal ............. this .................. 2.9 tb ............. day of ........ Jan.WaLKY ........... 19.... Signed, sealed and delivered in the presence of 9& G ..... . .................. [SEAL] ------------------ [SEAL] -------------- ...... . . ... ----------------------_ ........................................ [SEAL] ............................................ .............. ........................... ...•........•... ................................................... [SEAL] J I No. 35. BILL OF SALE. -13-dford Publishinz Co., 1824-46 Stout Street, Denver. Colorado -2 -76 Lewis A. Quigley City Manager #1 City Hall Place Pueblo, Colorado 81003 (719) 584 -0800, FAX (719) 584 -0850 D O D City of Pueblo February 8, 1999 OFFICE OF THE CITY MANAGER Mr. Mike Zaremba, President Zaremba Enterprises, Inc. c/o City Park Golf Courses 3900 Thatcher Ave. Pueblo, CO 81005 Dear Mr. Zaremba: David J. Galli Assistant City Manager Donald J. Saling Assistant City Manager For your information, the City had reduced the City Park Golf Course manager's percentage of revenue from the driving range and golf cart rental from the contract rate of 15% to 10% on January 1, 1997. It appears that this issue was not addressed in the January 25, 1999 ADDENDUM in which you assumed the 1993 Management Agreement for City Park Golf Course. We have attached a Memo of Understanding which addresses this percentage change and will serve as an amendment to the ADDENDUM. Thank you for your cooperation in this matter and we look forward to having the same positive relationship with you that we have experienced during your management of the Walking Stick facility. Please feel free to contact me should you have any questions or other concerns. Sincerely, & LA-A-� Lew Qut ey City Manager Attachment Bill Martin, Director of Finance Rich Zajac, Director of Parks & Recreation Consumer Information Capital of the World (1- 888- 8PUEBLO) MEMO OF UNDERSTANDING City of Pueblo and Zaremba Enterprises, Inc. agree to the following amendment to the 1993 City Park Golf Course Management Agreement as referenced in the ADDENDUM between the City and Zaremba Enterprises, Inc. Dated January 25, 1999. A. The Manager's percentage of the revenue derived from the driving range and rental of golf cards at City Park Golf Course will be 10% unless annually increased or decreased by the City Manager during the golf course manager's annual performance review conducted in November. d,-, /� , Q-, , - Lew Quigley City Manager 3 at Mike Zaremba 3 5 /2 Dat Zaremba Enterprises, Inc. CITY OF PUEBLO CITY PARK GOLF COURSE MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into as of the 12 day of October 1993, by and between the City of Pueblo, Colorado, a Municipal Corporation, 1 City Hall Place, Pueblo, Colorado, 81003, hereinafter referred to as the "City ", and Woodside Golf, Inc., a Colorado Corporation, 3900 Thatcher Avenue, Pueblo, Colorado, 81005, hereinafter referred to as the "Manager ". WITNESSETH: WHEREAS, the City now owns a municipal golf course open to public play and located on the premises commonly known as 3900 Thatcher Avenue, Pueblo, Colorado, and WHEREAS, the City desires to engage a qualified Manager to manage, operate, maintain and promote the golf course, and its related facilities, and WHEREAS, Manager is qualified and capable of managing, promoting, maintaining and operating the golf course and its related facilities, and WHEREAS, the acceptance of a negotiated agreement for the operation, maintenance, promotion and management of the golf course, and its related facilities would be in the best interest of the City of Pueblo. NOW THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the City and Manager agree as follows: 1. As used herein, the following words and phrases shall have the following meaning: (a) "Golf Course" means the property owned by City comprising the City Park municipal golf course including the maintenance building, golf cart rental building, and clubhouse but excluding the restaurant area of the clubhouse under lease to the restaurant concessionaire, the parking lot, and such other areas as are herein otherwise excepted. (b) "Director" means the City's Director of Parks and Recreation. 2. (a) City hereby appoints and retains Manager, subject to and upon the terms and conditions herein set forth, as an independent contractor to operate, manage, maintain and promote the Golf Course for a period of seven (7) years from October 31, 1993, to December 31, 2000, unless sooner terminated as herein provided. During the effective period of this Agreement, Manager shall have the exclusive privilege to sell golf balls, golf clubs and golf related merchandise on the Golf Course. City reserves the right to regulate the use and to fix and establish all fees and charges for the use of the Golf Course and all facilities and activities conducted thereon. 3. Manager accepts said appointment and agrees to operate, manage, maintain and promote the Golf Course and perform the following services during the effective period of this Agreement. (g) Monitor all activities on the Golf Course to insure compliance with all resolutions or ordinances of City governing the rules of play, regulating the use of the golf Course and facilities thereon, and imposing fees and charges for use of or activities on the Golf Course. (h) Keep and maintain accurate and complete accounts and records of all activities and transactions conducted by Manager on the Golf Course in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy and audit by City during normal business hours. Manager shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. (i) Submit to Director during August of each year a proposed Golf Course budget for the next calendar year. Manager understands and agrees that the Golf Course budget will not include reimbursement for any cost or expense incurred by Manager in (i) the employment of golf professionals, pro shop employees and other employees hired to rent or sell merchandise, (ii) the performance of management services, (iii) the performance of the services and furnishing the items described in subparagraphs (h), (r), (t), (u), (v) and (w) of this paragraph 3, (iv) interior maintenance and repair of the starter building and clubhouse, but including without limitation the pro shop, entrances, and (v) minor and routine maintenance and repair of plumbing, electrical and heating systems, and that such costs and expenses shall be the sole responsibility of Manager. Manager further understand and agrees that the Golf Course budget will contain only such items of reimbursement as the City Council in its sole discretion may determine. (j) Keep the golf Course and all facilities thereon in a clean, sanitary, safe and orderly condition. (k) Be responsible for scheduling the use of the Golf Course and all facilities and activities thereon, including without limitation, scheduling and reserving tee times for golf play and the planning, scheduling and overseeing of golf tournaments. (1) Comply strictly with all applicable federal, state and City laws, rules and regulations. (m) Keep the golf Course and all facilities thereon including the pro shop and driving range open for business at such hours and times as the Director and Manager shall from time to time determine subject to the approval of the City Manger. (n) Furnish prompt, courteous and efficient service adequate to meet all reasonable demands and needs of the public, ensuring polite and inoffensive conduct and demeanor on the part of its representatives, agents and employees. All Manager's employees who come in contact with the public shall wear a uniform or badge identifying them as employees of Manager. (o) Make no expenditure or commitment of funds not within the approved budget or in any line item of the approved budget in excess of the amount budgeted therefor. Submit to the City's Department of Finance at least monthly invoices and 3 verified requests for reimbursement for costs incurred in the operation of the Golf Course including periodic verified request showing Manager's payroll, including wages and benefits, for its employees (excluding golf professionals and pro shop employees and other employees hired to rent or sell merchandise) during the period covered by such request. The City's Department of Finance will review the verified requests and invoices and if in compliance with the approved budget and this Agreement make reimbursement therefor provided that any reimbursement for Manager's payroll will be made directly to Manager who shall be solely responsible for paying its employees and withholding and paying all state and federal payroll obligations and taxes. Manager shall hold harmless and indemnify City from any such payroll obligations and taxes and shall at least monthly account to the City and submit proof of non - delinquency thereof. (p) Meet with the Director at least monthly to review the operation and maintenance of the Golf Course and the Golf Course budget and expenditures and at least semi - annually to review the fees and charges being made by Manager for merchandise, rentals and lessons, which fees and charges shall be reasonable and competitive with fees and charges for similar services and facilities. Manager shall be directly responsible to the Director in all matters concerning the operation, maintenance, promotion and management of the Golf Course. (q) Surrender and deliver to City, at the termination of this Agreement, (i) all remaining operating supplies, fertilizer and materials the purchase of which was reimbursed by City, and (ii) the Golf Course and all facilities thereon including equipment, fixtures and machinery furnished or made available by City in as good condition and state of repair as the same now are or were at the time of delivery to Manager or may be hereafter improved by City or Manager, reasonable use and wear excepted. (r) Maintain in force at Manager's sole cost during the effective period of this Agreement comprehensive general public liability and property damage insurance, including personal and bodily injury, blanket contractual, products liability, non -owned and hired motorized carts and automobile coverage, covering all activities conducted by Manager under this Agreement, in the minimum amount of $1,000,000 aggregate, per occurrence for personal and bodily injury and $600,000 aggregate, per occurrence for property damage. City reserves the right to increase the amount of insurance in the event of increases in the amounts specified in the Colorado Governmental Immunity act. Certificates evidencing such, insurance coverage and workers compensation insurance shall be filed with the Director within ten (10) days after execution of this Agreement and said certificates shall certify that such insurance coverage is in force and will not be cancelled or reduced without at least thirty (30) days prior written notice to City and that the City is named as an additional insured under the policies of liability insurance. At least ten (10) days prior to the expiration of any such insurance, a certificate showing such insurance has been renewed or extended shall be filed with the Director. (s) Maintain in safe operating condition and repair golf carts furnished and made available by City to Manager. Manager shall provide q each renter of the golf cart with the rules and regulations established by City for the operation of golf carts at the Golf course and shall be responsible for the enforcement of such rules and regulations. (t) Carry, furnish, provide and replace as needed, at Manager's sole cost and risk sufficient and adequate stock- in- trade, merchandise and equipment in the pro shop and starter building as determined necessary by the Manager and Director to meet the reasonable needs and demands of the public, including without limitation varied stock of merchandise for sale at the pro shop. Manager shall not sell golf clubs or other golf related merchandise at or from any other location within Pueblo County, Colorado, during the effective period of this Agreement. (u) Pay at Manager's sole cost, before same become delinquent, all sales, use and property taxes on Manager's property. Manager shall collect and remit to City all sales taxes on the sale or rental of Manager's stock -in -trade and merchandise. (v) Operate and manage the Golf Course as a public facility for the use and benefit of the public on a fair, equal and nondiscriminatory basis without preferential treatment to any individual, group or entity including without limitation, adjacent or nearby homeowners or businesses, any school or School District, or the University of Southern Colorado, or any person or group associated therewith. Manager shall comply fully with state and federal antidiscrimination laws, rules and regulations and specifically agrees that no person shall be denied or refused services or other full or equal use of the Golf Course, nor denied employment opportunities by Manager as a result of race, creed, color, sex, age, national origin, ancestry or handicap unrelated to ability or job performance. (w) Obtain at Manager's cost and expense all licenses required for the operation of the Golf Course and the activities conducted thereon. 4. City, subject to availability of sufficient appropriated funds therefor, shall: (a) Furnish and make available for the Golf Course equipment and machinery not furnished and supplied by Manager which is necessary in the City's sole judgment for the operation and maintenance of the Golf course. (b) Reimburse Manager for costs incurred in accordance with approved budgets and this Agreement for the operation and maintenance of the golf Course. City shall not be responsible for the salary or benefits of golf professionals, pro shop employees, or other persons engaged to rent or sell merchandise, employed by Manager, nor for any items required to be supplied and furnished by Manager under paragraph 3(t), or for any personal or private debts of Manager or any expenditure in excess of or not authorized by the approved budgets and Manager shall indemnify and hold harmless City therefrom. (c) Repair and maintain the parking lot, maintenance building, and the exterior of other buildings located on the Golf course including roofs, walls and foundations, and, except for minor routine repairs, repair and maintain the heating, plumbing and electrical systems in such buildings (d) Provide City employees to act as cashiers who shall be physically located at the pro shop or such other location as Manager and Director shall mutually determine and who shall be under the supervision of the Director of Finance of the City and responsible for the centralized collection by the cash registers furnished by the City of all fees and charges and other monies paid for the use of or activities upon the Golf Course except restaurant and lounge receipts but including without limitation all fees and charges for rent of golf carts, clubs and golf balls, lessons, driving range, and sale of merchandise by Manager. All such fees, charges and other monies paid to or collected by Manager shall be held by Manager, in trust, and remitted to the City's cashiers on the day of receipt or if a cashier is riot then present no later than the next day. (e) Annually approve a budget for the operation and maintenance of the Golf Course containing such items of reimbursement as the City Council in its sole discretion may determine. Neither the 1993 budget for the Golf Course nor any subsequently adopted budget shall be binding upon the City for any year except for the year adopted. City may adjust budgets based upon prior actual and anticipated revenues and expenses and to protect the City from unreasonable or excessive operation and maintenance costs. 5. In consideration of the services to be rendered and performed by Manager hereunder, City shall pay to Manager an annual management fee of $45,000.00. The annual management fee shall be paid in twelve equal monthly installments. All gross revenues, excluding sales taxes, fees and charges generated for the following activities shall be paid and remitted in the following percentages: Activity Manager City Golf lessons 100 0 Driving range 15 85 Green fees 0 100 Motorized cart rentals 15 85 Sale of merchandise 100 0 Hand pulled carts & club rental 100 0 Locker rental 100 0 In lieu of no monthly fee for use of the Pro Shop facility at the City Park Golf Course Club House, Manager will use its own funds to remodel the Pro Shop according to plans and specifications approved by City within ninety (90) days after written request from City to perform such remodeling work. 0 The management fee and Manager's percentage of fees and charges shall be reviewed on November 1st of each year and may be annually increased or decreased by the City manager based upon Manager's performance and the profitability of Golf Course activities. 6. Manager shall fully indemnify and hold harmless, protect and defend at its sole cost and expense, the City, its officers, agents and employees from and against any and all risks, suits, damages, expenses, penalties or claims (including costs and reasonable attorney fees) which City, its officers, agents or employees may incur or become liable as a result of the injury to or death of any person or persons, or the loss or damage to any property, or the violation of any law or regulation arising out of or in connection with the operation of the Golf Course or the performance of this Agreement by Manager or any of its officers, agents or employees or any other person acting on behalf of Manager. 7. Time is of the essence hereof and to each and every provision of this Agreement. If in the judgment of City Manager of City the manner of maintenance or operation of the Golf Course or the quality or quantity of service or merchandise does not meet the requirements of this Agreement, or if Manager breaches or is in default of any term or condition of this Agreement, City may give Manager written notice specifying with reasonable particularity the unsatisfactory performance or default. If Manager fails or refuses to remedy such unsatisfactory performance or default within thirty (30) days after receipt of such notice, City may terminate this Agreement. If City institutes any litigation to enforce its rights or remedies under this Agreement, Manager agrees to pay all costs of enforcement, including reasonable attorney fees. 8. Manager understands and agrees that although located in the same clubhouse building, the operation of the pro shop is separate from the operation of the restaurant except for common use of the restrooms. Manager shall cooperate with the operator of the restaurant to obtain the most harmonious and greatest use of the clubhouse by the public and to provide adequate security for those portions of the clubhouse which may be closed to public use from time to time. Manager shall not use or allow the Golf Course or any facility thereon to be used for any improper, unlawful, immoral or objectionable purpose and shall not cause, maintain or permit any disorderly conduct, nuisance or waste in, on or about the Golf Course. Manager shall not conduct any activity or sell any thing at or on the Golf Course except as specifically authorized in this Agreement. 9. Manager shall not make any improvements of a permanent nature to the Golf Course or install any sign on the Golf Course or make any additions, changes, remodeling or alterations to any building on the Golf Course without the Director's prior written approval and obtaining all permits required therefor. All such improvements, signs, additions, changes, remodeling or alterations shall remain the property of the City. 10. It is understood and acknowledged by the parties that the relationship of Manager to City is that of any Independent contractor and that Manager shall have no authority to employ any person as employee or agent for or on behalf of City for, any purpose. 7 11. If the consent or approval of the Director or City Manager is required under this Agreement for any purpose, such consent or approval will not be unreasonably withheld. 12. In the event a dispute with respect to any provision c performance of either the City Manager may submit such dispute determination. If such dispute resolution, his decision thereon arises between Manager and the Director if this Agreement or the obligations or or Manager hereunder, the Director or to the City Manager for resolution and is submitted to the City Manager for shall be binding upon all parties. 13. City will purchase on or before October 31, 1993, from Manager 40 golf carts located on and being used at the Golf Course which were purchased and paid for by Manager with its own funds. The purchase price shall be $1,800.00 per cart and the purchase price shall include all golf cart parts and accessories and all Managers tools and equipment used by Manager in the repair and maintenance of golf carts. The Purchase price may be paid in installments. Manager shall convey marketable title free and clear of lien and encumbrances, to City by Bill of Sale with warranty of title. All golf carts will be in good working order and condition. 14. City will make Capital Improvements up to the amount of $5,000.00 for the purpose of remodeling the pro shop portion of the Golf Course Club House. 15. If this Agreement is terminated for any reason, and if applicable, City will purchase from Manager all golf related merchandise with the City Park Golf Course logo imprinted thereon, which was purchased and paid for by Manager with its own funds. The purchase price shall be mutually agreed upon by City and Manager. If City and Manager are unable to mutually agree upon the purchase price within thirty days after termination, the purchase price shall be determined by three appraisers familiar with the values of the items to be purchased, selected as follows: one by City, one by Manager, and one jointly by the appraisers selected by City and Manager. The three appraisers by a majority decision shall determine the purchase price within thirty days after their appointment. 16. This Agreement sets forth all understandings and agreements between City and Manager. No change, modification or amendment shall be valid and binding unless set forth in writing, signed by City and Manager, and approved in writing by City Manager. No verbal agreement or understanding with any officer, employee or agent of the City, either before or after execution of this Agreement, shall affect, modify or change any of the terms or provisions of this Agreement. 17. This Agreement shall not be assigned in whole or in part, nor shall the Golf Course or any part thereof be sublet, nor shall any right or privilege herein granted to Manager be sold, transferred or assigned without the prior written approval of the City, which approval may be arbitrarily withheld. Any such sale, transfer, subletting or assignment, whether voluntary or involuntary, without the prior written approval of City shall be void and constitute grounds for immediate termination of this Agreement at the option of the City. 18. City reserves the right to enter upon the Golf Course and all facilities thereon at any time for any reason. 19. The waiver by City of any breach of any term or provision of this Agreement shall not be deemed to be a waiver of such term provision for any subsequent breach of the same or any other term provision. 20. Any notice required under this Agreement shall be in writing and personally delivered or sent by United States certified mail, postage prepaid. to: (a) if to the City: City Manager, City of Pueblo, 1 City Hall Place Pueblo, Colorado, 81003 (b) if to the Manager: 3900 Thatcher Avenue, Pueblo, Colorado. 81005; or to such other place as City or Manager may from time to time designate in a written notice to the other party. 21. If any provision of this Agreement is declared invalid or unforceable by a court of competent jurisdiction, the unaffected provisions hereof shall remain in full force and effect. 22. This Agreement shall be governed by the laws of the State of Colorado and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and approved assigns. 23. Notwithstanding any provision of this Agreement to the contrary, City may terminate this Agreement without cause or penalty at the end of any three -year period of this Agreement upon 120 days prior written notice given to Manager. Any such termination shall be subject to the purchase provisions of paragraph 15 hereof. Executed the day and year first above written. r *rn^ 1v r ;.1 GUARANTY In consideration of the City of Pueblo, A Municipal Corporation approving and executing the foregoing Management Agreement, the undersigned Gary Woodside does hereby personally guarantee the performance of the Management Agreement by Woodside Golf, Inc. In the event of the default of Woodside Golf, Inc., under any provision of the Management Agreement and written notice thereof is given to Gary Woodside, Gary Woodside will timely cure such default and perform all the covenants and provisions of the Management Agreement to be performed by Woodside golf, Inc., thereunder. Gi �nad tha I day of Oc- T - EfL1993. _ LM _&h_ Gary Woodside /O