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ORDINANCE NO. 9847
AN ORDINANCE AWARDING A LEASE AND MANAGEMENT
AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND BREGAR GOLF, LLC FOR CERTAIN
PREMISES AT ELMWOOD GOLF COURSE AND AUTHORIZING
THE MAYOR TO EXECUTE THE SAME
WHEREAS, the contract for the lease and management of the Elmwood Golf Course
Restaurant and Lounge by J.M.A. Nacho’s, Inc. will expire on December 31, 2020; and
WHEREAS, in order to serve the best interests of golfers and the public, the City desires
the services of Bregar Golf, LLC to occupy, manage, operate, and maintain the Restaurant and
Lounge at Elmwood Golf Course; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Lease and Management Agreement between the City of Pueblo, a Municipal
Corporation, and Bregar Golf, LLC, a Colorado Limited Liability Company, for certain premises
at Elmwood Golf Course, incorporated herein and attached hereto, having been approved as to
form by the City Attorney, is hereby approved.
SECTION 2.
The Mayor is hereby authorized to execute the Lease and Management Agreement on
behalf of the City, and the City Clerk shall affix the Seal of the City thereto and attest the same.
SECTION 3.
The officers and staff of the City are authorized and directed to perform any and all acts
consistent with the intent of this Ordinance and the attached Lease and Management
Agreement to implement the transactions, policies, and procedures described herein.
SECTION 4.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on December 14, 2020 .
Final adoption of Ordinance by City Council on December 28, 2020 .
President of City Council
Action by the Mayor:
☒ Approved on December 30, 2020 .
□ Disapproved on _______________ based on the following objections:
_
Mayor
Action by City Council After Disapproval by the Mayor:
□ Council did not act to override the Mayor's veto.
□ Ordinance re-adopted on a vote of , on
□ Council action on _______ failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-8
BACKGROUND PAPER FOR PROPOSED
ORDINANCE
COUNCIL MEETING DATE: December 14, 2020
TO: President Dennis E. Flores and Members of City Council
CC: Nicholas A. Gradisar, Mayor
VIA: Brenda Armijo, City Clerk
FROM: Michael C. Sexton, Acting Parks and Recreation Director
SUBJECT: AN ORDINANCE AWARDING A LEASE AND MANAGEMENT AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND
BREGAR GOLF, LLC FOR CERTAIN PREMISES AT ELMWOOD GOLF
COURSE AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME
SUMMARY:
The lease and management agreement for the Elmwood Golf Course restaurant with J.M.A.
Nacho’s, Inc. will expire on December 31, 2020. This Ordinance will award a contract for the
lease and management of the Elmwood Golf Course restaurant and lounge to Bregar Golf, LLC
of Pueblo, Colorado. Bregar Golf, LLC holds the current contract for operations and
management of the golf course.
PREVIOUS COUNCIL ACTION:
Not applicable to this Ordinance.
BACKGROUND:
The current lease and management agreement for the Elmwood Golf Course Restaurant and
Lounge expires December 31, 2020. The existing contractor, J.M.A. Nacho’s, Inc., does not
wish to continue managing and operating the restaurant and lounge. It is the desire of the City
to move towards a management model similar to that used at Walking Stick Golf Course, where
the golf course manager is responsible for both the golf course and restaurant operations. By
placing responsibility for the restaurant and lounge on the golf course manager, conflicts
between golf course and restaurant operations will be avoided while golfers and restaurant
patrons will be able to voice any comments or concerns to the same manager and receive
consistent dependable customer service.
FINANCIAL IMPLICATIONS:
Bregar Golf, LLC will pay the City rent of $3,000 per month from January 1, 2021 through
December 31, 2021, totaling $36,000 for that first year. Beginning January 1, 2022, the golf
course manager will pay the City rent of $3,500 per month, totaling $42,000 for that year. The
rent shall then increase annually by three percent (3%).
BOARD/COMMISSION RECOMMENDATION:
The Golf Course Enterprise Citizens’ Advisory Committee recommends approval of this
Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this ordinance.
ALTERNATIVES:
Should City Council not to approve this Ordinance, the City will request competitive bids through
the RFP process to find a new operator of the Elmwood Golf Course Restaurant.
RECOMMENDATION:
Approval of the Ordinance.
Attachments:
Ordinance
Letter from Bregar Golf, LLC
Lease and Management Agreement
LEASE AND MANAGEMENT AGREEMENT
FOR RESTAURANT PREMISES AT ELMWOOD
GOLF COURSE
THIS LEASE AND MANAGEMENT AGREEMENT ("Agreement") is entered into this 1st
day of January, 2021 ("Effective Date"),by and between the City of Pueblo, a Municipal Corporation,
1 City Hall Place, Pueblo, Colorado 81008 ("City") and Bregar Golf, LLC, 41 Tierra Casa Drive,
Pueblo, Colorado 81005 ("Manager").
RECITALS
WHEREAS, the City owns and operates a municipal golf course which is open to public
play and located on the premises commonly known as Elmwood Golf Course, 3900 Thatcher Avenue,
Pueblo, Colorado (the "Golf Course"); and
WHEREAS, there is located on the Golf Course a restaurant and lounge; and
WHEREAS,the City desires the services of Manager to occupy,manage,operate,and maintain
the restaurant and lounge, including the liquor licensed premises; and
WHEREAS, Manager warrants it can operate restaurants and lounges, including liquor
licensed premises.
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 entire Elmwood Golf Course clubhouse and
facilities, but excluding (i) the pro shop consisting of approximately 1,056 square feet of floor area
located on the east side of the clubhouse, and (ii) the storage room consisting of approximately 567
square feet of floor area located in the basement thereof. The Leased Premises shall include the
Restaurant and Lounge and the Optional Premises, and shall be attached hereto as Exhibit A.
(b) "Restaurant and Lounge" means the restaurant and lounge located in the Leased
Premises.
(c) "Optional Premises" means the buildings located on the golf course, the patio located
outside but adjacent to the clubhouse, and the golf course itself.
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(d) "Director" means the City's Director of Parks and Recreation or any person that the
Director of Parks and Recreation may authorize to act in his or her stead.
(e) "Sponsorship Contract" means any contractual arrangement in which a third party
business pays for the right to have its product used or sold at the Leased Premises, or to place
advertising signs, banner, and other materials at the Leased Premises.
(f) "Sponsorship Events" means events, promotions, parties, celebrity appearances, social
functions,tournaments, contests, product demonstrations, product promotions, and other events at the
Leased Premises,or the placement of advertising signs, banners,announcements,and similar materials
at the Leased Premises under a Sponsorship Contract.
SECTION 2. EXHIBITS TO AGREEMENT.
Exhibit A: Leased Premises, Restaurant and Lounge, and Optional Premises Floor Plan.
Exhibit B: List of City's Property - Inventory.
Exhibit C: PERA Questionnaire.
SECTION 3. GRANT OF EXCLUSIVE RIGHT TO OCCUPY AND OPERATE LEASED
PREMISES.
(a) City grants to Manager as an independent contractor the exclusive right to occupy, use,
and operate the food and beverage operations at the Leased Premises, subject to:
(1) The City's right to enter the Leased Premises without notice to Manager to
inspect the premises, to perform maintenance, and to carry out any other action of City. City shall be
responsible for all routine maintenance, repair, and replacement of the plumbing system, roof, heating
and air conditioning system, electrical system, parking lot, and building exterior. Manager shall be
responsible for minor repairs and maintenance, which are defined as any repairs or maintenance with
a dollar value of five hundred dollars ($500.00) or less, including but not limited to the changing of
light bulbs and the interior cleaning and upkeep of restrooms and hallways. Manager shall also be
responsible for the repair and maintenance of all kitchen appliances. Kitchen appliances are devices
or pieces of equipment designed to perform a specific task, including, but not limited to, refrigerators,
freezers, stoves, fryers, mixers, and microwaves. Any replacement of kitchen appliances must be
approved by the Director prior to such replacement, and any such replacement will be at the sole cost
of Manager. Kitchen appliances are fixtures owned by City, a record of which shall be kept in the
Inventory (later defined).
(2) The City's right to enter into Sponsorship Contracts without notice to Manager.
Manager shall comply with all terms of any Sponsorship Contracts, including but not limited to using
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or selling the sponsor's product and/or placing advertising signs, banners, and other materials at the
Leased Premises.
(3) The City's right to inspect Manager's records, including but not limited to sales
receipts, inventory lists, purchasing orders, payroll, financial records,tax returns, and bank statements
of Manager, or any subcontractor contracted by Manager to operate all or a portion of the Restaurant
and Lounge business on the Leased Premises.
(4) All other terms of this Agreement. Any agreement between Manager and a
subcontractor must include a provision reserving all of the City's rights under this Agreement and law,
and the subcontractor agreeing thereto.
SECTION 4. RENT; LATE FEES; INTEREST.
(a) Manager shall pay to City $3,000 per month from January 1, 2021 through December
31, 2021 as rent due for the use of the Leased Premises. Beginning January 1, 2022, Manager shall
pay to City $3,500 per month as rent due, subject to an annual three percent (3%) increase each
subsequent year upon the anniversary of the Effective Date.
(b) Manager shall pay to City a late fee in the amount of$100 for any rent payment paid
more than ten (10) days after the first day of the month. Manager shall pay to City a late fee in the
amount of$500 for any rent payment paid more than fifteen (15)days after the first day of the month.
(c) All rent shall be due without notice, offset,or deduction on the first day of each month,
and shall be payable at the place designated in this Agreement for Notice to City. Rent shall be paid
into the City's Golf Course Enterprise. All rent, fees, and other sums due under this Agreement shall
bear interest at the rate of eight percent (8%) per annum from the date the sum first becomes due,
compounded monthly.
SECTION 5. UTILITIES. Manager shall pay before delinquent the charges for all utilities,
including but not limited to, water, gas, electric, cable, satellite, and interne.
SECTION 6. SECURITY DEPOSIT.
(a) City shall continue to retain Manager's deposit in the sum of $3,000 to ensure
performance of its obligations under this Agreement. In the event that Manager fails, neglects, or
refuses to pay any rent, fee, or other sum due under this Agreement, or fails to perform any obligation
under this Agreement, then City may, in its sole and absolute discretion, draw from this security
deposit to remedy Manager's default.Nothing contained in this Agreement shall require City to remedy
Manager's default in this manner, and City may instead, in its sole and absolute discretion, refuse to
remedy Manager's default by drawing on the security deposit, and instead pursue the remedies for
default provided in this Agreement or by law.
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(b) In the event that City draws from this security deposit to remedy Manager's default,
City shall notify Manager in writing and require Manager to replenish the deposit to its original level.
Failure of Manager to comply with this section shall constitute a material breach of this Agreement.
(c) Within sixty (60) days after this Agreement expires or terminates, City shall refund to
Manager the security deposit, less any portion of the security deposit that City has applied to remedy
any of Manager's defaults under this Agreement, including but not limited to unpaid rent, other sums
due under this Agreement, and any damages or cleaning that may be required, whether discovered
during the term of this Agreement or afterward.
SECTION 7. CITY TO PROVIDE CERTAIN CAPITAL.
(a) City has paid for certain capital improvements to the Leased Premises and purchased
the equipment and supplies presently located on the Leased Premises, including stoves, ovens, plates,
dishes, furniture, bars, freezers, and the like, for Manager's use on the Leased Premises. All such
improvements, equipment, and supplies shall remain property of the City and shall be returned to the
City at the termination of this Agreement. Manager shall confirm that all equipment and supplies are
tagged with City identification within one (1) month of signing of this document. Any capital
improvements, equipment, or other supplies purchased by Manager, whether to improve the Leased
Premises or to replace existing capital improvements, equipment, or other supplies, shall become the
property of City upon termination of this Agreement.
(b) The City may in its discretion reimburse Manager for additional capital expenses
incurred by Manager for equipment and furniture to be used by Manager at the Leased Premises,
provided that:
(1) Manager obtains written approval from the City for the capital expenses prior
to incurring any expenses; and
(2) Manager provides a detailed proposal to the City describing the equipment and
furniture to be purchased, the reason the purchase is necessary, and an estimate of the costs for the
equipment and furniture; and
(3) The capital expenses are incurred only for restaurant related equipment and
furniture delivered to and used solely at the Leased Premises; and
(4) Receipts for all purchases are provided immediately after the purchases are
made.
SECTION 8. SPONSORSHIP CONTRACTS
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(a) The City reserves the exclusive right to enter into Sponsorship Contracts which may
affect the Leased Premises or the operation of the Restaurant and Lounge business at any time that the
City determines, in its sole and absolute discretion, that such Sponsorship Contracts are desirable.
(b) Manager shall not enter into any Sponsorship Contract without the prior written
approval of the City.
(c) Any payment, fee, or other compensation that the City receives under a Sponsorship
Contract shall be solely the City's property.
(d) In the event that any term of this Section, or any term of this Agreement pertaining to
Sponsorship Contracts or Sponsorship Events, conflicts with or is construed to conflict with any
provision of any other contract, lease, or agreement between the City or any of its enterprises and
Manager, the provisions of this Agreement shall control.
SECTION 9. MANAGER'S ADDITIONAL OBLIGATIONS.Manager shall perform and comply
with the following obligations, restrictions, and limitations:
(a) Operate, staff, manage, clean, repair, keep clean and sanitary, maintain, and promote
the Restaurant and Lounge, Optional Premises, fixtures, and equipment, including the freezer units,
providing food and beverage service in all areas of the Licensed Premises, including but not limited
to alcoholic beverages. Manager shall perform these duties with reasonable care according to the
highest standards in the industry.
(b) Hire, supervise, train, and schedule all employees and subcontractors needed and
required for the efficient operation, maintenance, management, and promotion of the Restaurant and
Lounge and for sale and service of alcoholic beverages. It is expressly understood and agreed that all
employees hired by Manager shall be the employees of Manager, and there shall be no contractual
obligations or employer-employee relationship between the City and such employees. Manager shall
provide all workers'compensation insurance for its employees in accordance with the laws of the State
of Colorado and furnish Director with satisfactory proof that such insurance is in effect.
(c) Maintain the security and inventory of, and maintain in good condition and repair, all
City equipment, fixtures, and machinery used by Manager or placed under Manager's custody and
control by City. An initial inventory of such machinery, fixtures, and equipment shall be prepared for
the Leased Premises and shall be signed by the Director and Manager and attached hereto as Exhibit
B (the "Inventory"). Director and Manager shall annually update such Inventory. Repairs,
replacement, and disposal of any items on the inventory shall be approved by the Director annually or
such earlier time as requested by Manager. Any machinery, fixtures, or equipment purchased by
Manager to replace existing machinery, fixtures, or equipment listed in the Inventory, shall become
the property of City upon termination of this Agreement.
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(d) Keep and maintain separate, accurate, and complete accounts and records of all
activities and transactions conducted by Manager or Manager's subcontractor in the Restaurant and
Lounge and Optional Premises in accordance with generally accepted accounting principles and sound
business practices, 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 during the term
of this Agreement and for a minimum period of three (3) years after termination of this Agreement.
These records and accounts shall be entirely separate from any other business operations that Manager
may conduct on the Leased Premises or any other premises.
(e) Comply strictly with all applicable federal, state, and City laws, rules, and regulations.
(f) Keep the Restaurant and Lounge and Optional Premises open for business for no less
than a set eight(8)hours a day, each day the golf course is playable. Manager will provide service and
catering of food and beverages, including but not limited to alcoholic beverages, throughout all parts
of the Leased Premises on such days and at such times as the Leased Premises is open to the public,
and on such further days and times as the Director may require in his or her sole and absolute discretion
after reasonable consultation with Manager for catering, special events, or Sponsorship Events. Any
change in the set hours of operation shall require the prior approval of the Director.
(g) Furnish prompt, courteous, and efficient food and beverage service throughout the
Restaurant and Lounge and Optional Premises, including alcoholic beverages, at regular events,
special events, and Sponsorship Events according to a menu that the Director shall approve, in his or
sole and absolute discretion, after reasonable consultation with Manager. All such products and
services shall conform with the requirements of federal, state, and City laws and regulations. Manager
shall provide prompt, courteous, and efficient beverage service on the golf course with the golf course
beverage cart at all times the golf course is playable. During tournaments or Sponsorship Events,
Manager shall provide one beverage cart for every fifty (50) participants.
(h) Purchase, stock, carry, furnish, provide, and replace as needed, at Manager's sole cost
and risk, sufficient and adequate food, foodstuffs, beverages, alcohol beverages, equipment,
furnishings, and furniture in the Restaurant and Lounge and Optional Premises, in a quality and
quantity determined to be adequate by Director in his or her sole and absolute discretion after
reasonable consultation with Manager, including but not limited to foodstuffs and beverages for
breakfast, lunch,dinner,snacks, banquets,and catering,and tables,chairs, glasses, dishes,and utensils
for the Restaurant and Lounge and Optional Premises.The Director shall approve the quality,quantity,
and decor of equipment, furniture, furnishings, and fixtures prior to their purchase and placement on
the Leased Premises by Manager.
(i) Provide all food and beverage service and catering in a polite and inoffensive manner,
ensuring polite conduct and demeanor on the part of Manager's representatives, agents, employees,
and subcontractors.
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(j) Meet with Director in person at least quarterly to review the menu, prices charged,days
and times when food and beverage service must be provided at the Restaurant and Lounge and
Optional Premises, days and times when catering must be provided throughout the Leased Premises,
stocks of foodstuffs, beverages, equipment, furnishings, and furniture in the Restaurant and Lounge
and Optional Premises,upcoming special events,decor,menus,brochures,and sales materials,quality
of food and beverages provided, and sales records.
(k) Pay at Manager's sole cost, before same becomes delinquent, all sales, use, property,
and other taxes on Manager's property and business conducted on the Leased Premises. Manager shall
collect and remit to City all sales taxes on the sale of food, beverages, and merchandise.
(I) Operate and manage the Restaurant and Lounge and Optional Premises 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-discrimination laws, rules, and regulations and specifically agrees that no person shall be
denied or refused services or other full or equal use of the Leased Premises, nor denied employment
opportunities by Manager as a result of race, creed, color, sex, sexual orientation, age, national origin,
ancestry, or disability.
(m) Obtain at Manager's cost and expense all licenses required for the operation of the
Restaurant and Lounge and Optional Premises, including but not limited to food service licenses,
liquor licenses, and sales and use tax licenses. Upon termination of this Agreement, all such licenses
shall remain with the Leased Premises and Manager shall fully cooperate in the transfer and approval
of such licenses to City or its designee. For such purposes, Manager hereby irrevocably appoints City
its agent and attorney in fact to execute all approvals and instruments required for such transfers. City
acknowledges that any required license may be held in the name of a subcontractor of Manager, but
any such license shall remain with the Leased Premises and both subcontractor and Manager shall
fully cooperate in the transfer and approval of such licenses to City or its designee. Any agreement
between Manager and a subcontractor must include a provision keeping all such licenses with the
Leased Premises and guaranteeing their transfer and approval in accordance with City's direction.
(n) Comply with the rules and regulations adopted by the Director relating to the use and
operation of the Leased Premises, and all roads, sidewalks, parking lots, and golf cart pathways used
in connection with the Leased Premises.
(o) Meet and comply with the nondiscrimination and equal employment requirements of
section 1-8-4 of the Pueblo Municipal Code and federal law, which are incorporated herein by
reference.
(p) Manager shall not use or allow the Leased Premises 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 Premises. Manager shall not conduct any
activity or sell anything at or on the Leased Premises except as specifically authorized in this
Agreement. Manager shall conduct all sales and service of alcoholic beverages in compliance with the
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Colorado Liquor Code and its regulations, according to the highest standards in the industry,
exercising special care to ensure that persons under the age of twenty-one (21) do not purchase,
receive, or consume alcoholic beverages on the Leased Premises, that alcoholic beverages are not
removed illegally from the Leased Premises, and that visibly intoxicated persons are not served
alcoholic beverages. Before allowing any employee to sell or serve alcoholic beverages on the
Licensed Premises, Manager shall ensure that the employee receives training in the requirements of
the Colorado Liquor Code and its regulations, according to the highest standards in the industry, or
demonstrates that they have already completed such training within the last sixty (60) days.
(q) Manager shall not make any improvements of a permanent nature to the Leased
Premises or install any fixture or sign thereon, or make any additions, changes, remodeling, or
alterations to the same without the prior written approval of the Director and after obtaining all permits
required therefor. All improvements, fixtures, signs, additions, changes, remodeling, or alternations
shall become and remain the property of the City.
(r) Surrender and deliver to the City at the expiration or termination of this Agreement the
Leased Premises and all fixtures, machinery, supplies, and equipment in good order and condition,
reasonable wear and tear excepted.
SECTION 10. TERM AND TERMINATION.
(a) The initial term of this Agreement is from January 1, 2021 to December 31, 2025,
unless earlier terminated as herein provided. This Agreement may be renewed for two separate
successive and consecutive one-year periods in the discretion of the City.
(b) If either party is in default hereunder, the non-defaulting party may give written notice
describing the default to the defaulting party. If the defaulting party does not correct such default
within twenty (20) days after receipt of said notice, or if the default cannot be corrected within said
20-day period and the defaulting party fails to commence action to correct the default within said 20-
day period and thereafter diligently pursues corrective action, the non-defaulting party may upon an
additional five (5)days' notice given to the defaulting party terminate this Agreement.
(c) Notwithstanding the foregoing, either party may terminate this Agreement without
cause by giving at least sixty (60) days advance written notice to the other party, specifying the date
of termination.
(d) Termination of this Agreement shall not automatically terminate or otherwise affect the
Elmwood Golf Course Management Agreement between the parties dated December 1, 2008. In the
event that the Elmwood Golf Course Management Agreement between the parties dated December 1,
2008 is terminated by either party according to the terms of said agreement, this Agreement shall
terminate on the same date.
SECTION 11. INSURANCE, INDEMNITY,AND RELEASE.
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(a) Manager shall, prior to execution of this Agreement and on the anniversary of such
execution each year, obtain the following insurance coverages and provide to the City Certificates of
Insurance evidencing the same. Certificates evidencing insurance coverage shall certify that the
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.
Manager shall maintain all such insurance coverages at all times during the term of this Agreement:
(1) Workers' Compensation Insurance complying with statutory requirements in
Colorado and in any other state or states where the work is performed. The Workers' Compensation
Insurance policy shall contain an endorsement waiving subrogation against the City.
(2) Commercial General Liability ("CGL") Insurance issued to and covering the
liability of Manager, and naming the City of Pueblo and its officers and employees as additional
insureds with respect to all work performed by Manager and its subcontractors under this Agreement,
to be written on a Commercial General Liability policy form with coverage limits of not less than One
Million and No/100 Dollars ($1,000,000.00) per person and occurrence for personal injury, including
but not limited to death and bodily injury, and One Million and No/100 Dollars ($1,000,000.00) per
occurrence for property damage. This CGL policy shall also provide coverage for fires and for
contractual liability assumed by Manager under the provisions of this Agreement.
(3) Comprehensive Automobile Liability Insurance effective during the period of the
Agreement, covering the liability of Manager, and naming the City of Pueblo and its officers and
employees as additional insureds with limits of liability for injury to one person in any single
occurrence of not less than One Million and No/100 Dollars($1,000,000.00)and for any injury to two
or more persons in any single occurrence of not less than One Million and No/100 Dollars
($1,000,000.00). This insurance shall include uninsured/underinsured motorist coverage and shall
protect Manager from any and all claims arising from liability for the use of motor vehicles and golf
carts both on and off the Leased Premises and whether the motor vehicle or golf cart is owned, hired or
used by Manager or its employees.
(4) The coverage and limits enumerated in this insurance provision represent only the
minimum insurance required, and the Manager should rely on its expertise to obtain any additional
insurance coverage needed for its performance under this Agreement.
(b) Every insurance policy and certificate of insurance specified in subsection (a) of this
Section shall contain a provision requiring that Insurer notify the City in writing, in the manner
provided in this Agreement, in the event that any such policy or coverage is modified, revoked,
terminated, rescinded, or lapses.
(c) Manager forever releases and waives any and all claims, known and unknown,
presently existing or arising in the future, 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 tort, statute, violation of civil rights, or any other legal theory, for any physical injury,
psychological injury, death, property damage,or loss that Manager may suffer,related to or caused by
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the Released Parties which are in any way related to the Leased Premises, or any vehicle,object,thing,
or activity in any building or facility owned, operated, or controlled by the Released Parties.
(d) Manager shall not file, pursue, or prosecute any suit,action, or proceeding, in law or in
equity, in any court or tribunal, against the Released Parties, based on tort, statute, violation of civil
rights,or any other legal theory, for any physical injury,psychological injury,death, property damage,
or loss that Manager may suffer related to or caused by the Released Parties which are in any way
related to the Leased Premises or any vehicle, object, thing, or activity in any building or facility
owned, operated, or controlled by the Released Parties.
(e) Manager shall indemnify, defend, and hold harmless the Released Parties against any
liability for any damages, attorneys fees, and restitution that may be imposed by any court or tribunal
in any suit, action, or proceeding in law or equity filed by any person or entity based on tort, statute,
violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death,
property damage, or loss that Manager may suffer, related to or caused by the Released Parties which
are in any way related to the Leased Premises under this Agreement, or any vehicle, object, thing, or
activity in any building or facility owned, operated, or controlled by the Released Parties.
(f) Manager shall indemnify, defend, and hold harmless the Released Parties against any
liability for any damages, attorneys fees, and restitution that may be imposed by any court or tribunal
in any suit, action, or proceeding in law or equity filed by any person or entity based on tort, statute,
violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death,
property damage, or loss directly or indirectly attributable to Manager or Manager's subcontractors,
which are in any way related to the Leased Premises under this Agreement, or any vehicle, object,
thing, or activity in any building or facility owned, operated, or controlled by Manager or Manager's
subcontractors.
SECTION 12. SUBCONTRACTS.
(a) The parties acknowledge that Manager is the only party with whom City has a lease or
contract under this Agreement. To the extent Manager performs any services under this Agreement
through subcontractors, Manager shall contractually bind each of its subcontractors by subcontract to
all of the terms of this Agreement which are for the benefit of City, and City shall be a third party
beneficiary of those subcontracts. City reserves the right to approve or reject, in its sole and absolute
discretion, any subcontractor Manager intends to perform services under this Agreement. Manager
shall obtain City's approval prior to contracting with any such subcontractor.
(b) Manager shall indemnify,defend,and hold harmless the Released Parties from any and
all claims and demands for payment for any services provided by Manager's subcontractors. Manager
shall provide or require its subcontractors to maintain at a minimum the types and levels of insurance
required of Manager pursuant to this Agreement, and require subcontractors to release City from any
and all liability and to indemnify, defend, and hold harmless City from any damage or loss directly or
indirectly attributable to the subcontractor.
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(c) Manager shall furnish, maintain, and keep in force during the effective term of this
Agreement a good and sufficient Performance Bond, in the form provided by City, in an amount not
less than the Minimum Annual Guarantee as security for Manager's faithful performance of this
Agreement and for the payment of all subcontractors and persons performing labor and furnishing
equipment and provisions in connection with the Leased Premises and the return of the Leased
Premises and City owned fixtures, inventory, and equipment in good condition upon termination or
expiration of this Agreement.
SECTION 13. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS
FROM PERFORMING WORK
(a) At or prior to the time this Agreement is executed, Manager shall submit to the
Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal
alien who will perform work under this Agreement and that the Manager will participate in either the
"E-Verify Program" created in Public Law 208, 1 04th Congress, as amended and expanded in Public
Law 156, 108th Congress, as amended, that is administered by the United States Department of
Homeland Security or the "Department Program" established pursuant to §8-17.5-102(5)(c) C.R.S.
that is administered by the Colorado Department of Labor and Employment in order to confirm the
employment eligibility of all employees who are newly hired for employment to perform work under
this Agreement.
(b) Manager shall not:
(I) Knowingly employ or contract with an illegal alien to perform work under this
Agreement;
(2) Enter into an Agreement with a subcontractor that fails to certify to Manager
that the subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement.
(c) The following state-imposed requirements apply to this Agreement:
(1) Manager shall confirm the employment eligibility of all employees who are
newly hired for employment to perform work under this Agreement through participation in
either the E-Verify Program or Department Program.
(2) Manager is prohibited from using either the E-Verify Program or Department
Program procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
(3) If Manager obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, Manager shall:
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A. Notify the subcontractor and the City's Purchasing Agent within three
(3) days that Manager has actual knowledge that the subcontractor is employing or
contracting with an illegal alien; and
B. Terminate the subcontract with the subcontractor if within three(3)days
of receiving the notice required pursuant to subparagraph (c)(III)A above, the
subcontractor does not stop employing or contracting with the illegal alien; except that
Manager shall not terminate the Agreement with the subcontractor if,during such three
(3)days,the subcontractor provides information to establish that the subcontractor has
not knowingly employed or contracted with an illegal alien.
(4) Manager is required to comply with any reasonable request by the Colorado
Department of Labor and Employment(hereinafter referred to as"CDLE")made in the course
of an investigation that CDLE is undertaking pursuant to its authority under §8-17.5-102(5),
C.R.S.
(d) Violation of this Section by Manager shall constitute a material breach of Agreement
and grounds for immediate termination. In the event of such termination, Manager shall be liable for
City's actual and consequential damages.
(e) As used in this Section,the term"subcontractor"shall mean any subcontractor or agent
of Manager rendering services within the scope of this Agreement.
SECTION 14. NOTICES.
(a) Any notice required or permitted by this Agreement shall be in writing and shall be
deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail,
postage and fees prepaid, addressed to the party to whom such notice is to be given at the following
address or at such other address as may be subsequently furnished in writing to the other party:
If to City:
Mayor
City of Pueblo
1 City Hall Place
Pueblo, Colorado 81003
With an additional copy to:
City Attorney
City of Pueblo
1 City Hall Place
12
Pueblo, Colorado 81003
And
Director of Parks and Recreation
City of Pueblo
800 Goodnight Avenue
Pueblo, Colorado 81005
If to Manager:
Randal L. Bregar •
Bregar Golf, LLC
41 Tierra Casa Drive
Pueblo, Colorado 81005
(b) Such notices shall be deemed to have been given when deposited in the regular United
States mail.
SECTION 15. PERA LIABILITY. Manager shall reimburse the City for the full amount of any
employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement
Association("PERA") for salary or other compensation paid to a PERA retiree performing contracted
services for the City under this Agreement. Manager shall fill out the questionnaire attached as Exhibit
C and submit the completed form to City as part of the signed Agreement.
SECTION 16. 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 Agreement.
(b) Force Majeure. Any delays in or failure of performance by any party of its obligations
under this Agreement shall be excused if such delays or failure are a result of acts of God, pandemics,
fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations, 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. In the event the Restaurant and Lounge is shut down due to the
COVID-19 pandemic, City and Manager will discuss a reduction in Manager's rent based upon the
severity of the pandemic and the details of the shutdown. Any reduction in rent must be evidenced by
a signed written amendment to be effective.
(c) Binding Effect. This 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 Agreement except as otherwise
expressly authorized herein.
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(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 Agreement.
(e) Integrations, Severability, Amendment, and Counterparts. This Agreement represents
the entire agreement between the parties and supersedes all prior discussions and written agreements
or understandings. This Agreement may be amended only by an instrument in writing signed by the
parties. If any provision of this Agreement is held invalid or unenforceable, no other provision shall
be affected by such holding, and all of the remaining provisions of this Agreement shall continue in
full force and effect. This 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.
(f) No Third Party Beneficiaries;No Waiver of Immunities. Nothing in this 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 Agreement of the breach of any term
or provision of this 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 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 Agreement on behalf of such party and that this 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 unpaid utilities, damages, janitorial fees, costs, or
other sums due under this Agreement,to enforce any provision of this Agreement, to recover damages
for Manager's breach of this Agreement, or to seek specific performance of this 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 Agreement is intended to, nor shall be deemed to
constitute, a partnership or joint 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 Agreement.
(k) Assignment. This Agreement shall not be assigned by Manager without the prior
written consent of the City, which consent may be granted, denied, or conditioned in City's sole and
absolute discretion.
14
(1) Disputes. In the event a dispute arises between Manager and 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 Mayor for resolution and
determination. If such dispute is submitted to the Mayor for resolution, his or her decision thereon
shall be binding upon all parties.
(m) Governing Law and Venue. This Agreement shall be governed by the laws of the State
of Colorado. Venue for any action arising under this Agreement or for the enforcement of this
Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado.
(n) Certain Provisions Survive Expiration of Term and Termination.The provisions of this
Agreement pertaining to indemnification, releases, covenants not to sue, providing draft and
completed work product to the City, and liability, shall survive both the expiration of the term of this
Agreement and termination of this Agreement, and such terms shall continue in effect for a period of
five years following the termination of this 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.
(o) No Multi-Fiscal Year Obligation on City. This Agreement is expressly made subject to
the limitations of the Colorado Constitution.Nothing herein shall constitute, nor deemed to constitute,
the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the
City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or any other constitutional,
statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with
respect to any financial obligation of the City which may arise under this Agreement in any fiscal year,
in the event the budget or other means of appropriations for any such year fails to provide funds in
sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of
this Agreement, including any sub-agreement, attachment, schedule, or exhibit thereto, by the City.
(p) Prior Agreements Between the Parties. In the event that any term of this Agreement
conflicts with,or is construed to conflict with, any provision of any other contract, lease,or agreement
between the City or any of its enterprises and Manager, including but not limited to the Elmwood Golf
Course Management Agreement dated December 1, 2008, the provisions of this Agreement shall
control.
Executed the day and year first above written.
CITY OF PUEBLO, BREGAR GOLF, LLC
A MUNICIPAL CORPORATION
By By 9
15
Nicholas A. Gradisar, Mayor Randal L. Bregar, President
Attest: `lakeL`l OJVY O Attest:
City Clerk vv Secretary
APPROVED AS TO FORM:
/„,A City Attorney
GUARANTY
In consideration of the City of Pueblo, a Municipal Corporation, approving and executing the
foregoing Lease and Management Agreement, the undersigned Randal L. Bregar does hereby
personally guarantee the performance of the Lease and Management Agreement by Bregar Golf, LLC.
In the event of default by Bregar Golf, LLC of any provision of the Lease and Management Agreement
and written notice thereof is given to Randal L. Bregar, Randal L. Bregar will timely cure such default
and perform all of the covenants and provisions of the Lease and Management Agreement to be
performed by Bregar Golf, LLC.
Signed on aram 4 , 20,2/
Randy L. Bregar
16
EXHIBIT A
LEASED PREMISES
RESTAURANT AND LOUNGE AND OPTIONAL PREMISES
FLOOR PLAN
17
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EXHIBIT B
LIST OF CITY'S PROPERTY
INVENTORY
18
EXHIBIT C
PERA QUESTIONNAIRE
19
BREGAR GOLF, LLC ELMWOOD GOLF COURSE
RANDAL L. BREGAR 3900 THATCHER AVE
PGA CLASS A MEMBER PUEBLO, CO 81005
PGA OF AMERICA 719-561-4946
JULY 21, 2020
STEVEN MEIER
PARKS DIRECTOR
800 GOODNIGHT AVE.
PUEBLO, CO 81005
STEVEN,
THE GOLF MANAGEMENT CONTRACT BETWEEN THE CITY OF
PUEBLO AND BREGAR GOLF,LLC EXPIRES DECEMBER 31, 2020.
SECTION 2(a)OF THE MANAGEMENT AGREEMENT ALLOWS FOR
AUTOMATIC RENEWAL FOR SUCCESSIVE ONE YEAR TERMS. IT
IS MY INTENTION TO RENEW THE AGREEMENT FOR 2021.
IN ADDITION TO THIS AGREEMENT, I WOULD LIKE TO REQUEST
THAT BREGAR GOLF, LLC WOULD ALSO MANAGE THE
RESTAURANT OPERATIONS AT ELMWOOD GOLF COURSE.
THANK YOU FOR YOUR CONSIDERATION OF THIS REQUEST.
SINCERELY,
PA-P-1104—
RANDAL L. BREGAR
PRESIDENT, BREGAR GOLF, LLC
DIRECTOR OF GOLF
ELMWOOD GOLF COURSE