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:
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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.
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So'd _Id101
PUEBLO, A MUNICIPA CORPORATION
B
President of the City Council
[SEAL]
Atte , r I't, �'
City at
x
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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
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in the State of Colorado, of the first part, for and in consideration of ...- !em Dollars and
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in the State of Colorado, of the second part, the receipt whereof is hereby acknowledged, ha-.a ------
bargained and sold, and by these presents do- a5 grant and convey unto the said part_.Y ..... of the
second part, __ ------- successors or assigns, the following property,
goods chattels, to wit: ......... ................................. 1 ................................................................. "I .........
---------------- ..... The ... fjNtjkr_e.,q d.e q
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in the attached Schedule "A"
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TO HAVE AND TO HOLD the same, unto the said party. . -..... of the second part,
k4MtttAMx&mkkqtrute=, successors or assigns, forever. And the said part..y of the first part,
for ............ it.sel ... f .............. ...... i t.s ..... successors or assigns, cove-
nant --- --- and agrce..s .... to and with the said part.Y ........ of the second part ........ i t_s ----- OMMAM,
xdmbdstDmtorz, successors or assigns, to WARRANT AND DEFEND the sale of said property,
goods and chattels hereby made unto the said part.Y ........ of the second part ....... i_t.s ..... exexatnrs,
xdxxhdoz , successors or assigns, against all and every person or persons whomsoever.
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
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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.
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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
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