HomeMy WebLinkAbout12028RESOLUTION NO. 12028
A RESOLUTION APPROVING AN AGREEMENT TO
TERMINATE THE MANAGEMENT AGREEMENT FOR THE
RESTAURANT AND LOUNGE AT WALKINGSTICK GOLF
COURSE BETWEEN THE CITY, IN TRIPLICATE, LLC,
AND GEORGE A. ANDREWS III
WHEREAS, the City, In Triplicate, LLC and George A. Andrews III entered into a
Management Agreement for the Restaurant and Lounge at Walkingstick Golf Course;
and
WHEREAS, the Parties wish to terminate the Management Agreement and settle
all claims between them related to the Management Agreement.
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement Between Pueblo, a Municipal Corporation, Triplicate, LLC, and
George A. Andrews, III to Terminate the Management Agreement For The Restaurant
at Walkingstick Golf Course, a true copy of which is attached to this Resolution, having
been approved as to form by the City Attorney, is hereby approved. The President of
City Council is hereby directed to execute the Agreement to Terminate the Management
Agreement on behalf of the City, and the City Clerk is directed to attest same.
SECTION 2.
This Resolution shall become effective immediately upon passage and approval.
INTRODUCED: December 13, 2010
BY: Chris Kaufman
COUNCILPERSON
Background Paper for Proposed
RESOLUTION
DATE: December 13, 2010AGENDA ITEM # M-2
DEPARTMENT:
Parks and Recreation Department
Creighton Wright
Law Department
Thomas J. Florczak, City Attorney
TITLE:
A RESOLUTION APPROVING AN AGREEMENT TO TERMINATE THE
MANAGEMENT AGREEMENT FOR THE RESTAURANT AND LOUNGE AT
WALKINGSTICK GOLF COURSE BETWEEN THE CITY, IN TRIPLICATE, LLC, AND
GEORGE A. ANDREWS III
ISSUE:
Should the City Council adopt the Resolution approving the Agreement to Terminate the
Management Agreement?
RECOMMENDATION:
Approve the Resolution.
BACKGROUND:
The current manager of the restaurant and lounge at Walkingstick Golf Course, In
Triplicate, LLC, would like to terminate its management on December 31, 2010. The
City would like to find a new manager to take over management beginning January 1,
2011, or as soon thereafter as may be practically possible. The City has solicited
proposals for a new restaurant manager which were received on December 10, 2010.
The proposed Resolution approves the Agreement to Terminate Management
Agreement for the Restaurant and Lounge at Walkingstick Golf Course, settling all
claims between the City, In Triplicate, LLC, and George A. Andrews, III as to the
Management Agreement.
FINANCIAL IMPACT:
Unknown.
AN AGREEMENT
BETWEEN PUEBLO, A MUNICIPAL CORPORATION,
TRIPLICATE, LLC, AND GEORGE A. ANDREWS III
TO TERMINATE THE MANAGEMENT AGREEMENT FOR
THE RESTAURANT AT WALKINGSTICK GOLF COURSE
THIS TERMINATION AGREEMENT is entered this 13 day of December ,
2010, by and between Pueblo, a Municipal Corporation ( "City "), and Triplicate, LLC, and
George A. Andrews, III (collectively "Manager ")
RECITALS
A. The Parties entered into the Management Agreement attached as Exhibit A.
B The Parties wish to terminate the Management Agreement and settle all claims
between them related to the Management Agreement.
In consideration of the foregoing recitals, and the terms and conditions set forth herein,
the Parties agree as follows
TERMS AND CONDITIONS
SECTION 1 DEFINITIONS. As used herein, the following words and phrases shall have
the following meanings
(a) "Leased Premises" means and includes the restaurant, lounge, public restrooms
and front entranceway located on the first floor of the Walkingstick Municipal Golf Course
clubhouse consisting of approximately 2,532 square feet of floor area together with reasonable
access to and use of the starter buildings located on the golf course and the gazebo located
outside but adjacent to the clubhouse for the sale of restaurant food and beverages, and the walk -
in refrigerated room located in the basement of the clubhouse.
(b) "Management Agreement" means all of the following four documents
collectively- (1) the Consent to Assignment and Lease Modification dated May 11, 2009 between
the City and Manager; (2) the Acceptance of Assignment and Lease modification dated April 11,
2005 between the City and Zaremba Enterprises, Inc., (3) the Agreement dated April 11, 2005
between the City and J.M.A. Nachos, Inc , and (4) the Management Agreement dated November
13, 2000 between the City and M.C.A. Nachos, Inc , all of which are collectively attached as
Exhibit A.
(c) "New Manager" means a person or entity that the City may select to manage the
Leased Premises after termination of the Management Agreement.
(d) "Optional Premises" means the golf course as a liquor licensed area
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SECTION 2. MANAGEMENT AGREEMENT TERMINATED
(a) The Management Agreement is terminated effective December 31, 2010, and all
rights and obligations under the Management Agreement shall cease effective that date, except as
otherwise provided in this Termination Agreement.
(b) Manager shall continue to fulfill all obligations under the Management
Agreement between the date this Agreement is signed by all parties and December 31, 2010,
including the service of alcohol beverages.
(c) The Parties waive any requirement in the Management Agreement requiring
notice of termination and any other requirement, procedure, or method for termination of the
Management Agreement.
(d) The provisions of the Management Agreement pertaining to indemnification and
releases shall survive termination of the Management Agreement, and such terms shall continue
in effect for a period of five years following the termination of the Management Agreement and
for such further time as it may take to completely and finally negotiate, settle, or litigate any
claim or suit concerning the same.
(e) The termination of the Management Agreement shall not affect this Termination
Agreement or any duty, obligation, or claim under this Termination Agreement.
SECTION 3. MUTUAL RELEASE OF CLAIMS.
(a) In consideration of City's promises in this Termination Agreement, Manager
hereby forever releases and waives any and all claims, known and unknown, and any suit or
action in law or equity, against City and its officers, employees, agents and independent
contractors ( "Released Parties ") in any court or tribunal, based on contract, tort, statute, violation
of civil rights, or any other legal theory, for any violation of or failure to comply with the
Management Agreement, or any physical injury, psychological injury, death, or property damage
or loss that Manager may have suffered related to the Management Agreement or caused by the
Released Parties, which are in any way related to the Management Agreement, or any building,
vehicle, object, thing, or activity on the Leased Premises or Optional Premises.
(b) In consideration of Manager's promises contained in this Termination Agreement,
City hereby forever releases and waives any and all claims, known and unknown, and any suit or
action in law or equity against Manager and its officers, employees, agents and independent
contractors in any court or tribunal, based on contract, tort, statute, violation of civil rights, or
any other legal theory, for any violation or failure to comply with the Management Agreement,
or any physical injury, psychological injury, death, or property damage or loss that City may
have suffered, related to the Management Agreement or caused by Manager, which are in any
way related to the Management Agreement, or any building, vehicle, object, thing, or activity on
the Leased Premises or Optional Premises.
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(c) The foregoing releases shall not apply to any claims arising under this
Termination Agreement or any term of the Management Agreement that survives termination as
provided in this Termination Agreement.
(d) The City's release of claims against Manager shall not apply to any taxes or fees
due or to become due to the City
SECTION 4 TRANSFER OF LIQUOR LICENSE.
(a) Manager shall cooperate in. (1) the issuance of a temporary permit from the
Pueblo Liquor and Beer Licensing Authority and the Colorado Department of Revenue to City or
City's New Manager for operation of the liquor license at the Leased Premises and Optional
Premises, and (2) transfer of the liquor license for the Leased Premises and the Optional
Premises to the City or to City's New Manager
(b) Manager shall retain possession of the Leased Premises as provided in the
Management Agreement and keep the liquor license issued to Manager for the Leased Premises
and Optional Premises in full force and effect until the liquor license for the Leased Premises and
Optional Premises is fully transferred to either the City or the City's New Manager, and the
Liquor and Beer Licensing Authority for the City of Pueblo ( "Liquor Board ") and the Colorado
Department of Revenue ( "CDOR ") have both approved such transfer and issued a new liquor
license (not merely a temporary permit) for the premises to either the City or the City's New
Manager, provided however, that if City requests that Manager terminate possession of the
Leased Premises or Optional Premises in order to facilitate the transfer, Manager shall do so
(c) Manager shall promptly provide all documents, testimony, affidavits,
applications, requests consents, and other documents and cooperation of any kind or nature
whatsoever necessary or requested by the City, the Liquor Board or CDOR, to facilitate and
obtain issuance of the temporary permit and to transfer Manager's liquor license for the Leased
Premises and Optional Premises to either the City or the New Manager
(d) Whether the Manager's liquor license shall be transferred to the City or the City's
New Manager shall be determined in the City's sole and absolute discretion.
(e) The Parties agree that it would be difficult to estimate the actual damages the City
would suffer from Manager's violation of this Section, but liquidated damages in the amount of
Fifty Thousand Dollars ($50,000) is a fair and reasonable estimate of such damages and is
reasonably related and reasonably proportionate to the actual damages that the City would suffer
from such violation. The Parties intend to liquidate these damages to avoid the time and cost that
would be spent in calculating the actual damages. This remedy shall be in addition to any other
remedy that the City may have under law, equity, or in this Termination Agreement.
(f) Manager's obligations under this Section shall continue beyond December 31, 2010,
but shall not continue beyond the later of either. (1) complete transfer of the liquor license and
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granting of a new liquor license (not merely the temporary permit) for the licensed Premises and
Optional Premises to the New Manager by both the Liquor Board and CDOR, or (2) May 1, 2011
SECTION 5. PROPERTY AND CONDITION OF EQUIPMENT AND PREMISES.
Manager shall leave the Leased Premises in a clean, undamaged, and orderly condition and shall
account to City for all personal property owned by City and used by Manager in its operations.
Manager shall not remove any fixtures, chattels, equipment or personal property from the
premises except such personal property as the City may specifically agree in writing may be
removed.
SECTION 6. CITY COUNCIL APPROVAL REQUIRED This Termination Agreement is
expressly made contingent upon its approval by City Council by resolution and it shall not
become effective until such approval occurs.
SECTION 7 MISCELLANEOUS.
(a) Additional Documents. The Parties agree to execute any additional documents or
take any additional action that may be necessary to carry out this Termination Agreement.
(b) Force Majeure. Any delays in or failure of performance by any party of its
obligations under this Termination Agreement shall be excused if such delays or failure are a
result of acts of God, fires, floods, storms, lightning strikes, labor strikes, labor disputes,
accidents, regulations or orders of civil or military authorities, shortages of labor or materials, or
other causes, similar or dissimilar, which are beyond the control of such party
(c) Binding Effect. This Termination Agreement shall inure to the benefit of, and be
binding upon, the Parties, their respective legal representatives, successors, and assigns,
provided, however, that nothing in this paragraph shall be construed to permit the assignment of
this Termination Agreement except as otherwise expressly authorized herein.
(d) Section Captions. The captions of the paragraphs are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit or
describe the scope or intent of this Termination Agreement.
(e) Integration, Severability, Amendment, and Counterparts. This Termination
Agreement represents the entire agreement between the Parties and supersedes all prior
discussions and written agreements or understandings. This Termination Agreement may be
amended only by an instrument in writing signed by the Parties. If any provision of this
Termination Agreement is held invalid or unenforceable, no other provision shall be affected by
such holding, and all of the remaining provisions of this Termination Agreement shall continue
in full force and effect. This Termination Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which together constitute one and the same
agreement.
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(f) No Third Party Beneficiaries, No Waiver of Immunities. Nothing in this
Termination Agreement is intended, nor should it be construed, to create any rights, claims, or
benefits or assume any liability for or on behalf of any third party, or to waive any immunities or
limitations conferred under federal or state law, including but not limited to the Colorado
Governmental Immunity Act, § 24 -10 -101 et seq., C.R.S
(g) Waiver of Breach. A waiver by any party to this Termination Agreement of the
breach of any term or provision of this Termination Agreement shall not operate or be construed as
a waiver of any subsequent breach by either party
(h) Authority of Signers. Each person signing this Termination Agreement on behalf
of a party represents and warrants that he or she has the requisite power and authority to enter
into, execute, and deliver this Termination Agreement on behalf of such party and that this
Termination Agreement is a valid and legally binding obligation of such party enforceable
against it in accordance with its terms.
(i) Attorney's Fees and Costs of Collections. In the event that it becomes necessary
for the City to bring any action or proceeding to collect sums due under this Termination
Agreement, to enforce any provision of this Termination Agreement, to recover damages for
Manager's breach of this Termination Agreement, or to seek specific performance of this
Termination Agreement, the City shall be entitled to collect its reasonable attorneys fees, costs of
suit, and costs of collection as part of the judgment in such action or proceeding.
(j) Relationship Nothing in this Termination Agreement is intended to, or shall be
deemed to constitute, a partnership or point venture between the Parties, or to create any agency
or partner relationship between the Parties. Neither Party shall hold itself out as a partner, joint
venture, agent, or representative of the other under this Termination Agreement.
(k) Assignment. This Termination Agreement shall not be assigned by either party
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(1) Governing Law and Venue. This Termination Agreement shall be governed by
the laws of the State of Colorado Venue for any action arising under this Termination
Agreement or for the enforcement of this Termination Agreement shall be in a state court with
jurisdiction located in Pueblo County, Colorado
DATED this 13th day of December , 2010
CITY OF PUEBLO,
A MUNICIPAL CORPORATION IN TRIPLICATE, LLC OP
By �_„. . dt/ By ,/.,/% -//'
President of the City Council GeoriiX Andrews, I :, M. • agi . Member
/ or
Attest: - " a
•9 �►- Q,�� GE C ' ' A. A DREW S, III
City . erk (in h personal capacity)
APPROVED AS TO FORM.
77/4 w iC .- : --- 474--
City Attorney() V
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EXHIBIT A.
MANAGEMENT AGREEMENT
CONSENT TO ASSIGNMENT AND LEASE MODIFICATION
THIS CONSENT TO ASSIGNMENT AND LEASE MODIFICATION ( "Lease Modifica-
tion") is entered into as of May 11, 2009 between City of Pueblo, a municipal corporation ( "City ")
and In Triplicate, LLC, a Colorado limited liability company ( "Manager ").
WHEREAS, Zaremba Enterprises, Inc. assigned and transferred all its right, title and interest
in and to the Walkingstick Municipal Golf Course Restaurant and Lounge Management Agreement
dated November 13, 2000 ( "Walkingstick Restaurant Agreement ") to Manager effective May 1, 2009
( "Assignment "), and
WHEREAS, Manager and City are desirous of modifying the Walkingstick Restaurant
Agreement.
NOW, THEREFORE, in consideration of the foregoing and mutual promises herein
contained City and Manager agree as follows:
1 City consents to the Assignment. Manager accepts the Assignment and agrees to be
bound thereby and to perform all covenants and provisions on the part of the Manager to be
performed under the Walkingstick Restaurant Agreement as modified and amended by the provisions
of this Lease Modification.
2. The Walkingstick Restaurant Agreement is hereby modified and amended as follows.
(a) The term of the Walkingstick Restaurant Agreement is for a period of two (2)
years commencing May 1, 2009 and ending April 30, 2011, unless sooner terminated as provided
in the Walkingstick Restaurant Agreement. If not in default under the Walkingstick Restaurant
Agreement, Manager shall have the option to extend the term of the Walkingstick Restaurant
Agreement for an additional period of three (3) years, from May 1, 2011 to April 30, 2014 upon the
same terms and conditions, except the option to extend the term. In order to exercise its option to
extend, Manager shall deliver to City written notice of its exercise of the option on or before January
10, 2011 If Manager fails to timely deliver to City its written notice to exercise the option, the
option shall expire and the term of the Walkingstick Restaurant Agreement shall end on April 30,
2011
(b) Paragraphs 3(u) and 3(v) of the Walkingstick Restaurant Agreement are
deleted in their entirety
(c) Paragraph 5 of the Walkingstick Restaurant Agreement is amended to read
as follows:
For the use of the Leased Facilities, Manager shall pay to the City monthly rent in the
amount of $2,000 00 for each calendar month during the term hereof. Monthly rent shall be
paid to the City Department of Finance, in advance, without notice, setoff, or deduction, on
or before the 1st day of each calendar month, starting with the month of May 2009
3 The Walkingstick Restaurant Agreement as modified and amended by the provisions
of this Lease Modification shall remain in full force and effect, binding upon and inuring to the
benefit of City and Manager and their respective successors and approved assigns.
Executed at Pueblo, Colorado as of the day and year first above written.
IN TRIPLICATE, LLC CITY OF PUEBLO
///112_
By /, By �f�t -li► -
` /,•',CP President of the City Counc`tj y
[SEAL] _ AL]
`
Attest: Attest._1 1� �• -r.a-
Title: Cityerk
GUARANTY
In consideration of the City of Pueblo approving and executing the foregoing Consent To
Assignment And Lease Modification, the undersigned, George A. Andrews, III, does hereby
personally guarantee the performance of the Consent to Assignment and Lease Modification and the
Walkingstick Municipal Golf Course Restaurant and Lounge Agreement dated November 13, 2000
(collectively the "Agreements ") by In Triplicate, LLC. In the event of default by In Triplicate, LLC
under any provision of said Agreements and written notice thereof is given to George A. Andrews,
III, George A. Andrews, III will timely cure such default and perform all the covenants and provisions
of the Agreements to be performed by In Triplicate, LLC thereunder
Signed as of May 11, 2009 / /
//
der VISO
Georg - A. Andrews, II
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ACCEPTANCE OF ASSIGNMENT AND LEASE MODIFICATION
THIS ACCEPTANCE OF ASSIGNMENT AND LEASE MODIFICATION ( "Lease
Modification ") is entered into as of April 11, 2005 between City of Pueblo, a municipal corporation
( "City ") and Zaremba Enterprises, Inc., a Colorado corporation ( "Manager ").
WHEREAS, J.M.A. Nachos, Inc. as the successor in interest to M.C.A. Nachos, Inc. assigned
and transferred all its right, title and interest in and to the Walkingstick Municipal Golf Course
Restaurant and Lounge Management Agreement dated November 13, 2000 ("Walkingstick
Restaurant Agreement ") to Manager effective May 1, 2005, and
WHEREAS, Manager and City are desirous of modifying the Walkingstick Restaurant
Agreement.
NOW, THEREFORE, in consideration of the foregoing and mutual promises herein
contained City and Manager agree as follows.
1 Manager accepts the assignment ofthe Walkingstick Restaurant Agreement effective
May 1, 2005 and agrees to be bound thereby and to perform all covenants and provisions on the part
of the Manager to be performed under the Walkingstick Restaurant Agreement as modified and
amended by the provisions of this Lease Modification.
2. The Walkingstick Restaurant Agreement is hereby modified and amended as follows:
(a) The term of the Walkingstick Restaurant Agreement is extended for an
additional five (5) years from January 1, 2006 to December 31, 2010
(b) Manager shall make capital expenditures approved by City's Director of Parks
and Recreation with respect to the Leased Facilities in the amount of $35,000 00 on or before July
1, 2005 Such capital expenditures shall constitute rent paid for the period from May 1, 2005 to June
30, 2006.
(c) Commencing with the month of July 2006 and each month thereafter,
Manager shall pay monthly rent in the amount of $2,000 00 per month for the use of the Leased
Facilities in lieu of the rent provided for in the first sentence of Paragraph 5 of the Walkingstick
Restaurant Agreement. In addition, Manager shall not be required to file with the City's Department
of Finance monthly statements showing gross sales as required by the provisions of said Paragraph
5
(d) All repairs and modifications to the Leased Facility required by the Pueblo
City-County Health Department and/or the Regional Building Department for the transfer of
restaurant permit and liquor license to Manager in order for Manager to operate the restaurant and
licensed premises shall be performed at City's expense. Manager shall be responsible for all cost
of such permits and licenses.
3 The Walkingstick Restaurant Agreement as modified and amended by the provisions
of this Lease Modification shall remain in full force and effect, binding upon and inuring to the
benefit of City and Manager and their respective successors and approved assigns.
Executed at Pueblo, Colorado as of the day and year first above written.
ZAREMBA ENTERPRISES CITY OF PUEBLO
////
..�
President -' Presi. a tot City Coun rif /
[SEAL] // [SEAL]
Attest: Attest: Vr
Sec }etary J City rk
GUARANTY
In consideration of the City of Pueblo approving and executing the foregoing Acceptance of
Assignment And Lease Modification, the undersigned, Michael Zaremba, does hereby personally
guarantee the performance of the Acceptance of Assignment and Lease Modification and the
Walkingstick Municipal Golf Course Restaurant and Lounge Agreement dated November 30, 2003
(collectively the "Agreements ") by Zaremba Enterprises, Inc. In the event of default by Zaremba
Enterprises, Inc. under any provision of said Agreements and written notice thereof is given to
Michael Zaremba, Michael Zaremba will timely cure such default and perform all the covenants and
provisions of the Agreements to be performed by Zaremba Enterprises, Inc. thereunder
Signed as of April 11, 2005
C-
Michael Zaremba
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AGREEMENT
THIS AGREEMENT entered into as of April 11, 2005 between the City of Pueblo, a
municipal corporation ( "City") and J.M.A. Nachos, Inc., a Colorado corporation ( "Manager "),
WITNESSETH.
WHEREAS, M.C.A. Nachos, Inc. and City entered into the City Park Municipal Golf Course
Restaurant And Lounge Management Agreement dated November 13, 2000 ( "City Park Restaurant
Agreement ") and the Walkingstick Municipal Golf Course Restaurant And Lounge Management
Agreement dated November 13, 2000 ( "Walkingstick Restaurant Agreement "), and
WHEREAS, Manager is the successor in interest of M.C.A. Nachos, Inc. in and to all of
M.C.A. Nachos, Inc. right, title and interest in the City Park Restaurant Agreement and Walkingstick
Restaurant Agreement, and
WHEREAS, Manager desires to assign the Walkingstick Restaurant Agreement and continue
the City Park Restaurant Agreement, and
WHEREAS, City is willing to consent to the assignment of the Walkingstick Restaurant
Agreement and continue the City Park Restaurant Agreement upon the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the foregoing and mutual promises herein
contained, City and Manager agree as follows
1 The term of the City Park Restaurant Agreement is extended for an additional five
(5) years from January 1, 2006 to December 31, 2010 upon the same terms and conditions.
2. Manager assigns and transfers all its right, title and interest in and to the Walkingstick
Restaurant Agreement and liquor licenses and restaurant licenses for the Leased Facilities to
Zaremba Enterprises, Inc. effective May 1, 2005 and City consents to such assignment and transfer
Manager shall be released and discharged from all obligations under the Walkingstick Restaurant
Agreement occurring after May 1, 2005 Manager's monthly rent under the Walkingstick Restaurant
Agreement for the period from October 1, 2004 to May 1, 2005 is reduced to $750.00 per month.
3 Manager shall vacate and surrender possession of the Leased Facilities under the
Walkingstick Restaurant Agreement to Zaremba Enterprises, Inc. on May 1, 2005 and shall
cooperate with Zaremba Enterprises, Inc. in the transfer of the management of said Leased Facilities
including the execution and delivery of all documents required to transfer the liquor license and
restaurant license for the Leased Facilities to Zaremba Enterprises, Inc. At the time of transfer of
the Leased Facilities, the Leased Facilities and all City's fixtures, equipment and machinery shall
be in good working order and condition.
4 This Agreement shall be binding upon and inure to the benefit of City and Manager
and their respective successors and assigns.
5 Manager represents and warrants that it is the successor in interest of M.C.A. Nachos,
Inc. in and to all of M.C.A. Nachos, Inc. right, title and interest in the City Park Restaurant
Agreement and Walkingstick Restaurant Agreement and has the authority to execute and deliver this
Agreement.
Executed in Pueblo, Colorado the day and year first above written.
J.M.A. NACHOS, INC. CITY OF PUEBLO
C
By B / 0
t4residint resident o ' the ' ity Council
[SEAL] [SEAL]
AttesC L t AT-6) ,�� ) Attest: \ .
cretary City CIc
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WALKINGSTICK MUNICIPAL GOLF COURSE
RESTAURANT AND LOUNGE
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT entered into as of November 13, 2000, 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 M.C.A. Nachos, Inc., a Colorado corporation, whose
principal place of business is 409 N Santa Fe Avenue, Pueblo, Colorado, 81003 hereinafter referred
to as the "Manager"
WITNESSETH.
WHEREAS, the City now owns and operates a municipal golf course which is open to public
play and located on the premises commonly known as "Walkingstick Municipal Golf Course ", 4301
Walkingstick Boulevard, Pueblo, Colorado, (the "Golf Course ") and
WHEREAS, there is located on the Golf Course a restaurant and lounge, and
WHEREAS, the City desires to engage a qualified manager to manage, operate, maintain and
promote the restaurant and lounge, and
WHEREAS, Manager is qualified and capable of managing, promoting, maintaining and
operating the restaurant and lounge;
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) "Leased Facilities" means and includes the restaurant, lounge, public restrooms
and front entranceway located on the first floor of the Walkingstick Municipal Golf Course clubhouse
consisting of approximately 2,532 square feet of floor area together with reasonable access to and
use of the starter buildings located on the golf course and the gazebo located outside but adjacent to
the clubhouse for the sale of restaurant food, and beverages, and the walk -in refrigerated room
located in the basement of the clubhouse.
(b) "Restaurant and lounge" means the restaurant and lounge located in the Leased
Facilities.
(c) "Director" means the City's Director of Parks and Recreation.
(d) "Gross sales" means the entire amount of the sales price for cash or otherwise
of all sales of merchandise, beverages, food and foodstuffs conducted in, at. on and from the Leased
Facilities by Manager or any subtenant but excluding amounts collected and paid by Manager to any
governmental authority for any sales taxes. Sales shall include without limitation (i) where the orders
originate in, at, from or arising out of the use of the Leased Facilities whether delivery is made from
the Leased Facilities or from some other place, and (ii) made or performed by means of mechanical
or other vending devices in the Leased Facilities.
2. 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 restaurant and lounge and the Leased Facilities for a term of five (5) years from January 1 2001
to December 31, 2005, unless sooner terminated as herein provided. The term of this Agreement may
be extended by the City Council of City for an additional five (5) year term upon City giving wntten
notice of such extension to Manager at least ninety (90) days prior to December 31, 2005 During
the effective period of this Agreement, Manager shall have the exclusive privilege to sell beverages,
food and foodstuffs on the Leased Facilities.
3 Manager accepts said appointment and agrees to operate, manage, maintain and
promote the restaurant and lounge and the Leased Facilities and perform the following covenants and
services during the effective period of this Agreement:
(a) Supervise and be responsible for all aspects of the operation, maintenance,
management and promotion of the restaurant and lounge and all activities on the Leased Premises,
including the efficient management and operation of the restaurant and lounge, and the maintenance
and upkeep of the interior of the Leased Facilities in at least the same or better condition than
presently existing.
(b) Develop and implement efficient maintenance programs for the Leased
Facilities including the custodial and interior maintenance of the Leased Facilities and all equipment
and facilities located therein.
(c) Develop and implement efficient management programs for the operation,
scheduling of and use of the restaurant and lounge and Leased Facilities and the provision of services
to the public including the presence of Manager's personnel.
(d) Hire, supervise and schedule all employees needed and required for the
efficient operation, maintenance, management and promotion of the restaurant and lounge and Leased
Facilities. It is expressly understood and agreed that all employees hired by Manager shall be the
employees of Manager and no contractual obligations or relationship of employer - employee shall exist
between the City and such employees. Manager shall provide all workers' compensation insurance
for its employees in accordance with the provisions of the laws of the State of Colorado and furnish
Director satisfactory proof that such insurance is in effect.
(e) Be responsible for the security and inventory of, and maintain in good
condition and repair, all City's beverage carts, equipment, fixtures and machinery used by Manager
or placed under Manager's custody and control by City An initial inventory of such beverage carts,
machinery, fixtures, and equipment shall be prepared and signed by the Director and Manager and
attached hereto Director and Manager shall annually update such inventory
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(f) Keep and maintain accurate and complete accounts and records of all activities
and transactions conducted by Manager on the Leased Facilities 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 penod of three (3) years after termination of this Agreement.
(g) Keep the Leased Facilities and all fixtures and equipment therein in a clean,
sanitary, safe and orderly condition.
(h) Comply strictly with all applicable federal, state and City laws, rules and
regulations.
(i) Keep the restaurant and lounge and Leased Facilities open for business at such
hours and times as the Golf Course is open for play and at such other hours and times as the Director
and Manager shall from time to time determine.
(j) 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.
(k) Meet with the Director at least semi - annually to review the fees and charges
being made by Manager for food and beverages, which fees and charges shall be reasonable and
competitive with fees and charges for similar services and merchandise. Manager shall be directly
responsible to the Director in all matters concerning the operation, maintenance, promotion and
management of the restaurant and lounge and the use of the Leased Facilities.
(1) Surrender and deliver to City, at the termination of this Agreement, the Leased
Facilities and all City equipment in good order and condition, reasonable wear and tear excluded.
(m) Maintain in force at Manager's sole cost during the effective period of this
Agreement commercial liability insurance, including personal and bodilyinjury, blanket contractual,
products liability, non -owned and hired 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 $500,000 aggregate, per occurrence for property damage. Certificates
evidencing such insurance coverage and workers' compensation insurance shall be filed with the
Director on or before the effective date 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
(n) Carry, furnish, provide and replace as needed, at Manager's sole cost and nsk
sufficient and adequate food, foodstuffs, beverages, equipment, furnishings and furniture in the
Leased Facilities as determined necessary by the Manager and Director to meet the reasonable needs
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•
and demands of the public, including without limitation, (i) tables, chairs, glasses, dishes and utensils
for the restaurant and lounge, (ii) beverages, food and foodstuff for breakfast, lunch and dinner menus
and banquets. The Director shall approve the quality, quantity and decor of equipment, furniture,
furnishings and fixtures prior to their purchase and placement thereof on the Leased Facilities by
Manager Manager and Director shall prepare and sign an inventory of equipment, furnishings,
furniture and fixtures to be supplied and furnished by Manager and annually update such inventory
(o) Pay at Manager's sole cost, before same become delinquent, all sales, use and
property taxes on Manager's property and business conducted on the Leased Facilities. Manager shall
collect and remit to City all sales taxes on the sale of food, beverages and merchandise.
(p) Operate and manage the restaurant and lounge and Leased Facilities as public
facilities for the use and benefit of the public on a fair, equal and nondiscriminatory basis without
preferential treatment to any individual, group or entity Manager shall comply fully with state and
federal anti- discnmination laws, rules and regulations and specifically agrees that no person shall be
denied or refused services or other full or equal use of the restaurant and lounge or the Leased
Facilities, nor denied employment opportunities by Manager as a result of race, creed, color, sex, age,
national origin, ancestry or disability unrelated to ability or job performance.
(q) Obtain at Manager's cost and expense all licenses required for the operation
of the restaurant and lounge and the activities conducted on the Leased Facilities including a
restaurant license and hotel and restaurant liquor license. All such licenses shall remain with the
Leased Facilities and upon termination of this Agreement Manager shall transfer or approve the
transfer of such licenses to City or its designee. For such purposes, Manager hereby irrevocably
appoints Director its agent and attorney in fact to execute all approvals and instruments required for
such transfers. Manager shall not sell or give or permit the sale or giving of alcoholic beverages
including beer, wine and liquor to any person on the Golf Course except within the Leased Facilities
or such other location or place as the Director shall in writing approve.
(r) Coordinate the operation and management of the restaurant and lounge and
- use of the Leased Premises. in acooperative manner with of the Golf Course including,
but not limited to, allowing such manager reasonable access to the pro shop. Any dispute between
the Manager and the manger of the Golf Course shall be resolved by the Director
(s) Comply with the rules and regulations adopted by the Director relating to the
use of the Golf Course parking lot.
(t) Meet and comply with the nondiscrimination and equal employment
requirements of section 1 -8-4 of the Pueblo Municipal Code which are incorporated herein by
reference.
(u) Furnish, maintain, and keep in force during the effective term of this
Agreement a good and sufficient Performance Bond on form provided by City in an amount not less
than the Minimum Annual Guarantee as security for the faithful performance of this Agreement and
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for the payment of all persons performing labor and furnishing equipment and provisions in
connection with the restaurant and lounge and the retum of the Leased Facilities, and City -owned
fixtures and equipment in good condition upon termination of this Agreement.
(v) Make capital improvements to the Leased Facilities in the amount and for the
purposes specified in the attached Offeror's Explanation of Capital Improvements To Restaurant/
Lounge on or before April 1, 2001
4 City, subject to availability of sufficient budgeted and appropriated funds therefor,
shall repair and maintain the parking lot, and the clubhouse (except the intenor of the Leased
Facilities and pro shop) including roofs, walls and foundations, and, except for minor and routine
repairs, repair and maintain the heating, plumbing and electrical systems in the Leased Facilities. For
purposes of such repairs and maintenance, City shall have access to and use of the Leased Premises.
5 For the use of the Leased Facilities,. Manager shall pay to City monthly rent equal to
the greater of (i) one - twelfth (1/12) of $27,000.00 (the Minimum Annual Guarantee), or (ii) ten (10)
percent (10 %) of monthly gross sales up to $30,000.00 plus three (3) percent (3 %) of monthly gross
sales in excess of $30,00.00 for each calendar month, with the first and last calendar month being
prorated. Monthly rent shall be paid to the City's Department of Finance without notice, set off or
deduction, on or before the tenth (10th) day of each calendar month starting with the month of
January 2001 Manager shall furnish City's Department of Finance with monthly statements showing
gross sales during the prior calendar month on or before the fifteenth (15th) day of each following
month. Manager shall keep accurate books and records of all its business conducted in, at, on and
from the Leased Facilities and City shall have the right to examine, inspect or audit such books and
records upon notice to Manager If Manager shall fail to timely file any monthly statement, or if
Manager shall refuse to produce or to allow City to inspect its books and records after request, City
may upon three (3) days prior written notice to Manager specifying the date of termination, terminate
this Agreement without releasing or discharging Manager from any and all liabilities incurred or
existing on the date of termination.
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 or death of any
person or persons, or the loss or damage of any property, or the violation of any law or regulation
ansing out of or in connection with the operation of the restaurant and lounge or use of the Leased
Facilities or the performance or nonperformance of this Agreement by Manager or the negligent acts
or omissions of 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 restaurant
and lounge or the use of the Leased Facilities or the quality or quantity of service, merchandise or
food does not meet the requirements of this Agreement, or if Manager breaches or is m default of any
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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 shall not use or allow the restaurant and lounge or the Leased Facilities 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 Leased Facilities. Manager
shall not conduct any activity or sell anything at or on the Leased Facilities except as specifically
authorized in this Agreement.
9 Manager shall not make any improvements of a permanent nature to the Leased
Facilities or install any sign on the Golf Course or Leased Facilities or make any additions, changes,
remodeling or alterations to the Leased Facilities without the Director's prior written approval and
obtaining all permits required therefor All such approved improvements, signs, additions, changes,
remodeling or alternations 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 an 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. Manager shall have no
authority, expressed or implied, to bind the City to any agreement, liability or understanding.
Manager shall pay when due all required withholding and other employment taxes and income tax on
any monies paid pursuant to this Agreement.
11 If the consent or approval of the Director, City Manager or City is required under this
Agreement for any purpose, such consent or approval will not be unreasonably withheld. Any
approval or consent required by the City shall be by Resolution adopted by the City Council of City
12. In the event a dispute arises between Manager and the Director with respect to any
provision of this Agreement or the obligations or performance of either the City or Manager
hereunder, the Director or Manager may submit such dispute to the City Manager for resolution and
determination. If such dispute is submitted to the City Manager for resolution, his decision thereon
shall be binding upon all parties.
13 Neither the City nor any of its officers, employees or agents shall be responsible or
liable for any injury, damage or loss arising out of this Agreement, or Manager's performance or
nonperformance hereof, or occurring on or within the Golf Course or Leased Premises from any
cause whatsoever, including, but not limited to, (i) the condition of the Golf Course or Leased
Premises, (ii) snow or ice or water or sewer leakage or back -up, (iii) the making or failure to make
required repairs hereunder by City , and (iv) the failure or interruption of utility services; and Manager
hereby waives, releases and discharges City, its officers, employees and agents therefrom.
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14 If the Leased Premises are damaged or destroyed by fire or other casualty the City
may, in its sole and absolute discretion, either (i) repair or rebuild the Leased Premises, or (ii)
terminate this Agreement.
15 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, approved by the City, and signed by City and Manager No verbal representation, 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.
16 This Agreement shall not be assigned in whole or in part, nor shall the Leased
Facilities 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 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 The term "assignment" means and includes the sale or transfer of a majority of the capital stock
of Manager to any person, firm, corporation or any other entity
17 City reserves the right to enter upon the Leased Facilities at any time for any reason.
18. 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 or provision for any subsequent breach of the same or any
other term or provision.
19 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, 409 N Santa Fe Avenue, Pueblo, Colorado, 81003,
or to such other place as City or Manager may from time to time designate in a written notice to the
other party
20 If any provision of this Agreement is declared invalid or unenforceable by a court of
competent jurisdiction, the unaffected provisions hereof shall remain in full force and effect.
21 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. Venue for any litigation arising out of this Agreement shall be Pueblo County
Colorado.
22. Notwithstanding any provision of this Agreement to the contrary, no term or provision
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of this Agreement shall be construed or interpreted as a waiver, expressed or implied, of any of the
immunities, benefits, rights, protections, or any other provisions of the Colorado Governmental
Immunity Act, section 24-10 -101 et seq. C.R.S., or any other law granting immunity to the City and
its officers and employees.
Executed the day and year first above written.
CITY OF PUEBLO,
A PAL CORPO 'PION M.C.A. NACHOS, INC.
B By
P? of the City Council 'Presicj�n
A tj six Attest: (( �(� P
Ci Jerk Secretary
GUARANTY
In consideration of the City of Pueblo, a Municipal Corporation approving and executing the
foregoing Management Agreement, the undersigned Martin Ayala does hereby personally guarantee
the performance of the Management Agreement by M.C.A. Nachos, Inc. In the event of the default
of M.C.A. Nachos, Inc. under any provision of the Management Agreement and written notice
thereof is given to Martin Ayala, Martin Ayala will timely cure such default and perform all the
covenants and provisions of the Management Agreement to be performance by M.C.A. Nachos, Inc.
thereunder
Signed on November 13, 2000
'Martin • yala
WITYW RKAReaw ,uxm:KW4MTArRIMISCRSOwiuxa/MGR/ANTI WPI) -8-