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HomeMy WebLinkAbout11115RESOLUTION NO. 11115 A RESOLUTION APPROVING AN ASSIGNMENT AND TRANSFER AGREEMENT BETWEEN THE CITY OF PUEBLO AND ZAREMBA ENTERPRISES, INC., AN ACCEPTANCE OF ASSIGNMENT AGREEMENT BETWEEN THE CITY OF PUEBLO AND DAVE LEWIS, AND AN ACCEPTANCE OF ASSIGNMENT AGREEMENT BETWEEN THE CITY OF PUEBLO AND BREGAR GOLF, LLC AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 _ The following agreements, copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved: (a) Assignment and Transfer Agreement dated September 24, 2007 between the City and Zaremba Enterprises, Inc. relating to the management of Walkingstick and Elmwood Golf Courses. (b) Acceptance of Assignment Agreement dated September 24, 2007 between the City and David Lewis relating to the management of Walkingstick Golf Course. (c) Acceptance of Assignment Agreement dated September 24, 2007 between the City and Bregar Golf, LLC relating to Elmwood Golf Course. SECTION 2 The President of the City Council is authorized to execute and deliver in the name of the City of Pueblo the agreements described in Section 1 hereof and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3 This Resolution shall become effective upon final approval and passage. INTRODUCED September 24, 2007 BY Randy Thurston Councilperson APPROVED: a #?ESIDEINTof City Council ATTESTED BY: CITY CLERK Res. III 15 D �I � �I D Background Paper for Proposed RESOLUTION AGENDA ITEM # f 9 DATE: September 24, 2007 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING AN ASSIGNMENT AND TRANSFER AGREEMENT BETWEEN THE CITY OF PUEBLO AND ZAREMBA ENTERPRISES, INC., AN ACCEPTANCE OF ASSIGNMENT AGREEMENT BETWEEN THE CITY OF PUEBLO AND DAVE LEWIS, AND AN ACCEPTANCE OF ASSIGNMENT AGREEMENT BETWEEN THE CITY OF PUEBLOAND BREGAR GOLF, LLCAND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the agreements be approved? RECOMMENDATION City Administration recommends that the agreements be approved. BACKGROUND Zaremba Enterprises, Inc. ( "ZEI ") will terminate its operation of the Elmwood and Walkingstick Golf Courses and vacate the Golf Courses effective October 1, 2007. The management agreement for Elmwood Golf Course will be assigned and accepted by Bregar Golf, LLC and the management agreement for Walkingstick Golf Course will be assigned and accepted by Dave Lewis. City and ZEI mutually release each other from obligations under the management agreements except with respect to ZEI's Walkingstick Golf Course gift certificate and credit books obligations ( "Obligations ") which will be discharged by ZEI. $10,000 of compensation payable to ZEI will be held with the City until those obligations are discharged. Other than the Obligations, City after review, does not know of any other debts or liabilities ZEI owes the City under its Golf Course Management Agreements. Pursuant to the Acceptance of Assignment Agreements, the Golf Course Management Agreements will continue on the same financial and other conditions but will end November 30, 2008. These arrangements will insure that the operation of Elmwood Golf Course and Walkingstick Golf Course will continue without interruption in the best interest of the City and users of its golf courses. FINANCIAL IMPACT See Background. ASSIGNMENT AND TRANSFER AGREEMENT THIS ASSIGNMENT AND TRANSFER AGREEMENT ( "Agreement ") entered into as of September 24, 2007 by and between the City of Pueblo, a Municipal Corporation ( "City ") and Zaremba Enterprises, Inc., a Colorado corporation ( "Manager "), WITNESSETH: WHEREAS, Manager and City entered into the Walkingstick Golf Course Management Agreement dated June 12, 2000 ( "Walkingstick Agreement ") and the City Park Golf Course Management Agreement dated June 12, 2000 ( "City Park Agreement ") (the Walkingstick Agreement and the City Park Agreement are herein collectively sometimes referred to as the "Management Agreements "); and WHEREAS, Manager desires to assign the Walkingstick Agreement to David Lewis and the City Park Agreement to Randal L. Bregar; and WHEREAS, the City is willing to consent to such assignments upon the terms and conditions herein set forth. NOW, THEREFORE, in consideration of the foregoing and mutual covenants herein contained, City and Manager agree as follows: 1. Manager effective October 1, 2007, assigns and transfers all its right, title and interest in and to (a) the City Park Agreement to Randal L. Bregar, and (b) the Walkingstick Agreement to David Lewis. City consents to such transfers and assignments. 2. Manager shall between the hours of 8:00 o'clock a.m. and 12:00 noon Mountain Standard Time on October 1, 2007 ( "Transition Period ") vacate, surrender and transfer possession of (a) the Walkingstick Golf Course to David Lewis, and (b) the Elmwood Gold Course, formerly known as the City Park Golf Course, to Randal L. Bregar. Manager shall cooperate and assist in the transfer of possession in order to accomplish a smooth and orderly transition of the management of both the Walkingstick Golf Course and the Elmwood Golf Course (herein collectively sometimes referred to as the "Golf Courses "). 3. Manager, during the Transition Period, shall (a) except as otherwise provided in paragraph (4) below, remove all its property from the Golf Courses, (b) return to City any and all City funds in possession or control of Manager, and (c) deliver to City (i) all remaining operating supplies, fertilizer and materials located at the Golf Courses, and (ii) all golf carts, City's equipment, fixtures and machinery in good working order and condition. 4. Manager shall during the Transition Period deliver to City (a) legible copies or computer disc in readable format of all its Walkingstick Golf Course books and records relating to (i) scheduled tournaments, (ii) outstanding gift certificates and "credit book" with respect to the pro - shop, green fees and cart rentals, and (b) all tournament deposits paid to Manager. 5. Manager represents and warrants that its Walkingstick Golf Course gift certificates and "credit book" obligations ( "Obligations ") do not exceed $20,000.00 and expire November 30, 2007. Manager shall timely discharge all Obligations in a satisfactory manner as they are surrendered or redeemed by persons entitled thereto. The Obligations with respect to the pro -shop and golf merchandise may be discharged through arrangements Manager makes with David Lewis. The Obligations with respect to green fees and golf rentals shall be discharged by Manager paying to the City the amount thereof as they are surrendered or redeemed by the persons entitled thereto. Manager authorizes City to withhold $10,000.00 from compensation payable to Manager under the Management Agreements to be held in an escrow account by the City to satisfy and discharge any Obligations not timely discharged or paid by Manager. The balance of the $10,000.00 escrow account without interest, less any amount of Obligations in dispute between Manager and any person entitled thereto, shall be paid to Manager on December 31, 2007 or, with respect to any disputed Obligation, upon resolution of such dispute. 6. City and Manager do hereby mutually release and forever discharge each other and Michael Zaremba as guarantor of and from any and all liabilities, claims, losses, damages, expenses, including reasonable attorney fees, whether known or unknown, foreseen or unforeseen, growing out of or arising, directly or indirectly, out of the Management Agreements and/or City's or Manager's performance or non - performance thereof. The foregoing release and discharge shall not be applicable to this Agreement or the covenants and provisions hereof, which are not released or discharged hereby. 7. In the event of any litigation arising out of this Agreement, the Court shall award to the prevailing party its expenses and costs, including reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. 8. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors. Neither City nor Manager may assign this Agreement or any interest therein. Executed at Pueblo, Colorado as of the date first above written. ZAREMBA ENTERPRISES, INC. I By �4 President Qom, Atte t � i v 9 CITY OF PUEBLO By President e City Council City W rk ACCEPTANCE OF ASSIGNMENT AGREEMENT This Acceptance of Assignment Agreement ( "Agreement ") entered into as of September 24, 2007 by and between the City of Pueblo, a Municipal Corporation ( "City ") and Dave Lewis of Pueblo, Colorado ( "Manager "). Whereas, Zaremba Enterprises, Inc. assigned and transferred effective October 1, 2007 all its rights, title and interest in and to the Walkingstick Golf Course Management Agreement ( "Walkingstick Agreement ") dated June 12, 2000 to Manager, and Whereas, Manager and City are desirous of modifying the Walkingstick Agreement. Now therefore, in consideration of the foregoing and mutual covenants contained herein, Manager and City agree as follows: 1. Manager accepts the assignment of the Walkingstick Agreement effective October 1, 2007 and agrees to be bound thereby and, commencing October 1, 2007, Manager . agrees to perform all covenants and provisions on the part of Manager to be performed under the Walkingstick Agreement as modified and amended by the provisions of this Agreement. Manager acknowledges and agrees that he has received and reviewed a copy of the Walkingstick Agreement and understands the terms and provisions thereof. 2. City consents to and approves the assignment of the Walkingstick Agreement to Manager effective October 1, 2007 and agrees to be bound thereby and, commencing October 1, 2007 agrees to perform all covenants and provisions on the part of the City to be performed under the Walkingstick Agreement as modified and amended by the provisions of this Agreement. City acknowledges and agrees that Manager shall not be liable or responsible for performance of any covenant or provision of the Walkingstick Agreement prior to October 1, 2007. The Walkingstick Agreement is hereby modified and amended as follows: (a) The term of the Walkingstick Agreement ends and terminates November 30, 2008 and Manager shall have no right or option to extend or renew the term of the Walkingstick Agreement. (b) Paragraphs 2(b) and (c) and Paragraph 20 of the Walkingstick Agreement are deleted in their entirety. (c) The management fee set forth in Paragraph 5 of the Walkingstick Agreement for the period from October 1, 2007 to November 30, 2008 is fixed and established at $4,340.00 per month payable in advance. Manager shall, as additional compensation for services performed, received 10% of the gross revenue collected for driving range charges and motorized cart rentals as provided in said Paragraph 5. (d) Any notice required to be given to Manager shall be in writing and delivered or sent by United States certified mail, p ostage prepaid, to: `lly Plle�asan4 _Ln. ►�ueb /s, Cam. F?rr'r (e) Manager acknowledges and agrees that the Walkingstick Agreement is in the nature of a professional services contract for the performance of public services, therefor, in addition to the provisions of Paragraph 7 of the Walkingstick Agreement, City may terminate the Walkingstick Agreement upon five (5) days prior written notice given to Manager specifying the date of termination if Manager (i) submits a false or fraudulent request for reimbursement or payment from City or, (ii) commits a criminal act which in the opinion of the City Manager of City tends to bring disrespect upon the City. (f) The Walkingstick Agreement shall terminate upon the death or disability of Manager. 3. The Walkingstick Agreement as modified and amended by the provisions of this Agreement shall remain in full force and effect, binding upon and inuring to the benefit of City and Manager and their representative heirs, personal representatives, successors and approved assigns. Executed at Pueblo, Colorado the day and year first above written. MANAGER < � have Lewis CITY City of Pueblo BY 000/�C /LJ _ P sident 'the City Council �`. Attest. r. ,_- City S erk _ (l ACCEPTANCE OF ASSIGNMENT AGREEMENT This Acceptance of Assignment Agreement ( "Agreement') entered into as of September 24, 2007 by and between the City of Pueblo, a Municipal Corporation ( "City ") and Bregar Golf, LLC, 41 Tierra Casa Drive, Pueblo, Colorado 81005 ( "Manager "). Whereas, Zaremba Enterprises, Inc. assigned and transferred effective October 1, 2007 all its rights, title and interest in and to the City Park Golf Course Management Agreement ( "City Park Agreement') dated June 12, 2000 to Manager, and Whereas, Manager and City are desirous of modifying the City Park Agreement. Now therefore, in consideration of the foregoing and mutual covenants contained herein, Manager and City agree as follows: 1. Manager accepts the assignment of the City Park Agreement effective October 1, 2007 and agrees to be bound thereby and, commencing October 1, 2007, Manager agrees to perform all covenants and provisions on the part of Manager to be performed under the City Park Agreement as modified and amended by the provisions of this Agreement. Manager acknowledges and agrees that he has received and reviewed a copy of the City Park Agreement and understands the terms and provisions thereof. 2. City consents to and approves the assignment of the City Park Agreement to Manager effective October 1, 2007 and agrees to be bound thereby and, commencing October 1, 2007 agrees to perform all covenants and provisions on the part of the City to be performed under the City Park Agreement as modified and amended by the provisions of this Agreement. City acknowledges and agrees that Manager shall not be liable or responsible for performance of any covenant or provision of the City Park Agreement prior to October 1, 2007. 3. The City Park Agreement is hereby modified and amended as follows (a) The term of the City Park Agreement ends and terminates November 30, 2008 and Manager shall have no right or option to extend or renew the term of the City Park Agreement. (b) Paragraph 2(b) and Paragraph 20 of the City Park Agreement are deleted in their entirety. (c) The management fee set forth in Paragraph 5 of the City Park Agreement for the period from October 1, 2007 to November 30, 2008 is fixed and established at $4,340.00 per month payable in advance. Manager shall, as additional compensation for services performed, received 10% of the gross revenue collected for driving range charges and motorized cart rentals as provided in said Paragraph 5. (d) Any notice required to be given to Manager shall be in writing and personally delivered or sent by United States certified mail, postage prepaid, to: Randal L. Bregar, 41 Tierra Casa Drive, Pueblo, Colorado, 81005. (e) Manager acknowledges and agrees that the City Park Agreement is in the nature of a professional services contract for the performance of public services, therefor, in addition to the provisions of Paragraph 7 of the City Park Agreement, City may terminate the City Park Agreement upon five (5) days prior written notice given to Manager specifying the date of termination if Manager (i) submits a false or fraudulent request for reimbursement or payment from City or, (ii) commits a criminal act which in the opinion of the City Manager of City tends to bring disrespect upon the City. (f) The City Park Agreement shall terminate upon the death or disability of Manager. 3. The City Park Agreement as modified and amended by the provisions of this Agreement shall remain in full force and effect, binding upon and inuring to the benefit of City and Manager and their representative heirs, personal representatives, successors and approved assigns. Executed at Pueblo, Colorado the day and year first above written. MANAGER BREGAR GOLF, LLC B 2a C< (ill Randal L. Bregar CITY CITY OF PUEBLO B 11 lC L eb Presid nt oft e City Council Title: ?6 slij4ZA' - Attest: City ctk GUARANTY In consideration of the City of Pueblo, a Municipal Corporation approving and consenting to the assignment of the foregoing City Park Golf Course Management Agreement, the undersigned Randal L. Bregar does hereby personally guarantee the performance of the City Park Golf Course Management Agreement by Bregar Golf, LLC. In the event of the default of Bregar Golf, LLC under any provision of the City Park Golf Course Management Agreement and written notice thereof is given to Randal L. Bregar, Randal L. Bregar will timely cure such default and perform all the covenants and provisions of the City Park Golf Course Management Agreement to be performed by Bregar Golf, LLC thereunder. Signed the 24` day of September, 2007. � 3�'� Randal L. Bregar