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HomeMy WebLinkAbout6653RESOLUTION NO. 6653 A RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND ZAREMBA ENTERPRISES, INC., AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME WHEREAS, the City desires to engage a qualified Manager to manage, operate, maintain and promote the Walkingstick Golf Course and its related facilities; and WHEREAS, Manager is qualified and capable of managing, promoting, maintaining and operating the Walkingstick Golf Course and its related facilities; and WHEREAS, the acceptance of the negotiated agreement for operation, maintenance, promotion and management of the Walkingstick Golf Course would be in the best interest of the City of Pueblo; BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1: The Professional Service Agreement dated December 10, 1990 between Pueblo, a Municipal Corporation and Zaremba Enterprises, Inc. relating to the operation, maintenance, promotion and management of the Walkingstick Golf Course for the City, a copy of which is attached hereto and incorporated herein, having been approved by the City Attorney is hereby approved. SECTION 2: The President of the City Council is authorized to execute and deliver the agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED December 10 , 1990 BY: HOWARD WHITLOCK Councilperson ATTEST: APPRO C y' er P si ent o th unc1l CITY OF PUEBLO WALKINGSTICK GOLF COURSE MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into as of this 10th day of December, 1990, 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 Zaremba Enterprises, Inc., a Colorado Corporation, 363 South Archer, Pueblo West, Colorado, 81007, hereinafter referred to as the "Manager ". WITNESSETH: WHEREAS, the City now owns a municipal golf course which will be open to public play on or about June 1, 1991 and located on the premises commonly known as 4301 Walkingstick Boulevard, Pueblo, Colorado, and WHEREAS, the City desires to engage a qualified Manager to manage, operate, maintain and promote the golf course, restaurant, lounge and related facilities, and WHEREAS, Manager is qualified and capable of managing, pro- moting, maintaining and operating the golf course, restaurant, lounge, and related facilities, and WHEREAS, the acceptance of a negotiated agreement after soliciting proposals for the operation, maintenance, promotion and management of the golf course, restaurant, lounge and related facilities would be in the best interest of the City of Pueblo, NOW THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the City and Manager agree as follows: 1. As used herein, the following words and phrases shall have the following meaning: (a) "Golf Course" means and includes the property owned by City comprising the Walkingstick municipal golf course and all facilities thereon including, without limitation, the clubhouse, restaurant, lounge, pro shop, starter building, maintenance build- ing and parking lot. (b) "Director" means the City's Director of Parks and Recreation. 2. (a) City hereby appoints and retains Manager, subject to and upon the terms and conditions herein set forth, as an independent contractor to operate, manage, maintain and promote the Golf Course for a period of five (5) years from January 1, 1991 to January 1, 1996, unless sooner terminated as herein provided. During the effective period of this Agreement, Manager shall have the exclusive privilege to sell beverages, food, foodstuffs, golf balls, golf clubs and golf related merchandise on the Golf Course. City reserves the right to fix and establish all fees and charges for the use of the Golf Course and all facilities and activities conducted thereon. (b) If City determines that it will engage the services of a person or entity other than the City to operate the Golf Course after the expiration of the initial five year period, and, if Manager is not in default hereunder and has satisfactorily performed this Agreement, City will so notify Manager on or before August 1, 1995 and Manager shall have the option to operate the Golf Course for an additional period of five years upon such conditions and covenants as City and Manager shall mutually agree. If City and Manager are unable for any reason to mutually agree upon such conditions and covenants before October 1, 1995, Manager's option granted hereby shall terminate and City may operate the Golf Course or engage the services of another person or entity to operate all or any part of the Golf Course after the expiration of the initial five year period without any obligation to Manager except as provided in paragraph 13 below. 3. Manager accepts said appointment and agrees to operate, manage, maintain and promote the Golf Course and perform the following services during the effective period of this Agreement. (a) Supervise and be responsible for all aspects of the operation, maintenance, management and promotion of the Golf Course and all activities thereon, including the efficient management and operation of the restaurant, lounge, clubhouse, starter building and pro shop, and the maintenance and upkeep of the Golf Course and all facilities thereon in at least the same or better condition than presently existing. (b) Develop and implement efficient maintenance programs for the Golf Course including (i) custodial and interior maintenance of the restaurant, lounge, clubhouse, pro shop, and starter building, and (ii) greens, tees, aprons, traps and hazards, fairway, lakes, roughs and driving range including watering, chemical and fertilizer, mowing, seeding, reconditioning and reseeding, moving of green cups and tee markers, airifying and topdressing, and weed control and elimination programs. Manager shall on or before December 1 of each year submit such programs to the Director for review and approval. (c) Develop and implement efficient management programs for the operation, scheduling of and use of the Golf Course and all facilities thereon and the provision of services to the public including the presence of Manager's personnel, golf course super- intendent, and golf professionals at the Golf Course. Manager shall on or before December 1 of each year submit such programs to the Director for review and approval. (d) Hire, supervise and schedule all employees needed and required for the efficient operation, maintenance, management -2- and promotion of the Golf Course and all facilities thereon, including without limitation, (i) a golf professional who possesses a P.G.A. Class "A" Certificate experienced in the management and operation of golf course facilities and pro shop, and (ii) a qualified golf course superintendent and greens- keeper experienced in maintenance, upkeep and care of golf courses familiar with the soil and climatic conditions of the area. The golf professional and golf course superintendent shall be accept- able to City (Manager shall confer with and obtain the City Manager's approval prior to their employment, discharge or replacement) and shall be employed by Manager on a full -time basis during the effective period of this Agreement. 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 workmen's 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) Use its best efforts to effect operation and cost controls and savings. (f) Be responsible for the security and inventory of, and maintain in good condition and repair, all City's equipment, fixtures and machinery used by Manager or placed under Manager's custody and control by City. City, on or before June 1, 1991, will furnish Manager with an initial inventory of such machinery, fixtures, and equipment and City and Manager shall annually update such inventory. (g) Monitor all activities on the Golf Course to insure compliance with all resolutions or ordinances of City governing the rules of play, regulating the use of the Golf Course and facilities thereon, and imposing fees and charges for use of or activities on the Golf Course. (h) Keep and maintain accurate and complete accounts and records of all activities and transactions conducted by Manager on the Golf Course in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy and audit by City during normal business hours. Manager shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. (i) Submit to Director during August of each year a proposed Golf Course budget for the next calendar year. Manager understands and agrees that the Golf Course budget will not include reimbursement for any cost or expense incurred by Manager in (i) the employment of golf professionals, restaurant, lounge and pro shop employees and other employees hired to rent or sell merchandise, food, or foodstuffs, (ii) the performance of manage- ment services, (iii) the performance of the services and furnish- -3- ing the items described in subparagraphs (h), (r), (t), (u), (v) and (w) of this paragraph 3, (iv) interior maintenance and repair of the starter building and clubhouse, except the basement but including without limitation the pro shop, restaurant, lounge and entrances, and (v) minor and routine maintenance and repair of plumbing, electrical and heating systems, and that such costs and expenses shall be the sole responsibility of Manager. Manager further understands and agrees that the Golf Course budget will contain only such items of reimbursement as the City Council in its sole discretion may determine. (j) Keep the Golf Course and all facilities thereon in a clean, sanitary, safe and orderly condition. (k) Be responsible for scheduling the use of the Golf Course and all facilities and activities thereon, including with- out limitation, scheduling and reserving tee times for golf play and the planning, scheduling and overseeing of golf tournaments. (1) Comply strictly with all applicable federal, state and City laws, rules and regulations. (m) Keep the Golf Course and all facilities thereon including the pro shop, driving range, restaurant and lounge, open for business at such hours and times as the Director and Manager shall from time to time determine subject to the approval of the City Manager. (n) Furnish prompt, courteous and efficient service adequate to meet all reasonable demands and needs of the public, ensuring polite and inoffensive conduct and demeanor on the part of its representatives, agents and employees. All Manager's employees who come in contact with the public shall wear a uniform or badge identifying them as employees of Manager. (o) Make no expenditure or commitment of funds not within the approved budget or in any line item of the approved budget in excess of the amount budgeted therefor. Submit to the City's Department of Finance at least monthly invoices and verified requests for reimbursement for costs incurred in the operation of the Golf Course including periodic verified request showing Manager's payroll, including wages and benefits, for its employees (excluding golf professionals, restaurant, lounge and pro shop employees and other employees hired to rent or sell merchandise, food or foodstuffs) during the period covered by such request. The City's Department of Finance will review the veri- fied requests and invoices and if in compliance with the approved budget and this Agreement make reimbursement therefor provided that any reimbursement for Manager's payroll will be made directly to Manager who shall be solely responsible for paying its employees and withholding and paying all state and federal payroll obligations and taxes. Manager shall hold harmless and indemnify City from any such payroll obligations and taxes and shall at least monthly account to the City and submit proof of non - delinquency thereof. -4- (p) Meet with the Director at least monthly to review the operation and maintenance of the Golf Course and the Golf Course budget and expenditures and at least semi - annually to review the fees and charges being made by Manager for food, beverages, merchandise, rentals, and lessons, which fees and charges shall be reasonable and competitive with fees and charges for similar services and facilities. Manager shall be directly responsible to the Director in all matters concerning the operation, maintenance, promotion and management of the Golf Course. (q) Surrender and deliver to City, at the termination of this Agreement, (i) all remaining operating supplies, ferti- lizer and materials the purchase of which was reimbursed by City, and (ii) the Golf Course and all facilities thereon including equipment, fixtures and machinery furnished or made available by City in as good condition and state of repair as the same now are or were at the time of delivery to Manager or may be hereafter improved by City or Manager, reasonable use and wear excepted. (r) Maintain in force at Manager's sole cost during the effective period of this Agreement comprehensive general public liability and property damage insurance, including personal and bodily injury, blanket contractual, products liability, non -owned and hired motorized carts and automobile coverage, covering all activities conducted by Manager under this Agreement, in the minimum amount of $1,000,000 aggregate, per occurrence for personal and bodily injury and $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 June 1, 1991 and said certificates shall certify that such insurance coverage is in force and will not be cancelled or reduced without at least thirty (30) days prior written notice to City and that the City is named as an additional insured under the policies of liability insurance. At least ten (10) days prior to the expiration of any such insurance, a certificate showing such insurance has been renewed or extended shall be filed with the Director. (s) Maintain in safe operating condition and repair golf carts furnished and made available by City to Manager. Manager shall provide each renter of a golf cart with the rules and regulations established by City for the operation of golf carts at the Golf Course and shall be responsible for the enforcement of such rules and regulations. (t) Carry, furnish, provide and replace as needed, at Manager's sole cost and risk sufficient and adequate stock -in- trade, merchandise, food, foodstuffs, beverages, equipment, furnishings and furniture in the restaurant, lounge, pro shop and starter building as determined necessary by the Manager and Director to meet the reasonable needs and demands of the public, including without limitation (i) varied stock of merchandise for sale at the pro shop, (ii) tables, chairs, glasses, dishes and utensils for the restaurant and lounge, (iii) beverages, food and -5- foodstuff for breakfast, lunch and dinner menues 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 Golf Course by Manager. Manager and Director shall on or before June 1, 1991 prepare an inventory of equipment, furnishings, furniture and fixtures to be supplied and furnished by Manager and annually update such inventory. Manager shall not sell golf clubs or other golf related merchandise at or from any other location within Pueblo County, Colorado during the effective period of this Agreement. (u) Pay at Manager's sole cost, before same become delinquent, all sales, use and property taxes on Manager's property. Manager shall collect and remit to City all sales taxes on the sale or rental of Manager's stock -in -trade and merchandise including food and beverages. (v) Operate and manage the Golf Course as a public facility for the use and benefit of the public on a fair, equal and nondiscriminatory basis without preferential treatment to any individual, group or entity including without limitation, adjacent or nearby homeowners or businesses, any school or School District, or the University of Southern Colorado, or any person or group associated therewith. Manager shall comply fully with state and federal antidiscrimination laws, rules and regulations and specifically agrees that no person shall be denied or refused services or other full or equal use of the Golf Course, nor denied employment opportunities by Manager as a result of race, creed, color, sex, age, national origin, ancestry or handicap unrelated to ability or job performance. (w) Obtain at Manager's cost and expense all licenses required for the operation of the Golf Course and the activities conducted thereon including a restaurant license and hotel and restaurant liquor license. All such licenses shall remain with the Golf Course 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 City 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 restaurant, lounge and starter building or such other location or place as the Director shall in writing approve. 4. City, subject to availability of sufficient appropriated funds therefor, shall: (a) furnish and make available for the Golf Course equipment and machinary not furnished and supplied by Manager which is necessary in the City's sole judgment for the operation and maintenance of the Golf Course. (b) reimburse Manager for costs incurred in accordance with approved budgets and this Agreement for the operation and maintenance of the Golf Course. City shall not be responsible for -6- the salary or benefits of golf professionals, restaurant, lounge or pro shop employees, or other persons engaged to rent or sell merchandise, food, or foodstuffs, employed by Manager, nor for any items required to be supplied and furnished by Manager under paragraph 3(t), or for any personal or private debts of Manager or any expenditure in excess of or not authorized by the approved budgets and Manager shall indemnify and hold harmless City therefrom. (c) repair and maintain the parking lot, maintenance building, and the exterior of other buildings located on the Golf Course including roofs, walls and foundations, and, except for minor and routine repairs, repair and maintain the heating, plumbing and electrical systems in such buildings. (d) provide City employees to act as cashiers who shall be physically located at the pro shop or such other location as Manager and Director shall mutually determine and who shall be under the supervision of the Director of Finance of the City and responsible for the centralized collection by the used cash registers furnished by the City of all fees and charges and other monies paid for the use of or activities upon the Golf Course except restaurant and lounge receipts but including without limitation all fees and charges for rent of golf carts, clubs and golf balls, lessons, driving range, and sale of merchandise by Manager. All such fees, charges and other monies paid to or collected by Manager shall be held by Manager, in trust, and remitted to the City's cashiers on the day of receipt or if a cashier is not then present no later than the next day. (e) annually approve a budget for the operation and maintenance of the Golf Course containing such items of reimburse- ment as the City Council in its sole discretion may determine. Neither the 1991 budget for the Golf Course nor any subsequently adopted budget shall be binding upon the City for any year except for the year adopted. City may adjust budgets based upon prior actual and anticipated revenues and expenses and to protect the City from unreasonable or excessive operation and maintenance costs. 5. In consideration of the services to be rendered and performed by Manager hereunder, City shall pay to Manager an annual management fee of $36,000.00 commencing January 1, 1991. The annual management fee shall be paid in twelve equal monthly installments. All gross revenues, excluding sales taxes, fees and charges generated for the following activities shall be paid and remitted in the following percentages: Activity Manager City Golf lessons 100 0 Driving range 10 90 grim Green fees 0 100 Motorized cart rentals 10 90 Sale of merchandise and restaurant and lounge operations 100 N For the use of the starter building and clubhouse ( including the pro shop, restaurant and lounge but excluding the basement of the clubhouse which will be used for storage of motorized carts), Manager shall pay to City a monthly fee of $2,000.00 commencing with the month of June 1991 or the date a certificate of occupancy issues for the clubhouse, whichever occurs later. The payment for the use of the starter building and club- house, management fee and Manager's percentage of fees and charges shall be reviewed during August of each year and may be annually increased by the City Manager based upon Manager's performance and the profitability of Golf Course activities. b. 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 arising out of or in connection with the operation of the Golf Course or the performance of this Agreement by Manager or any of its officers, agents or employees or any other person acting on behalf of Manager. 7. Time is of the essence hereof and to each and every provision of this Agreement. If in the judgment of City Manager of City the manner of maintenance or operation of the Golf Course or the quality or quantity of service, merchandise or food does not meet the requirements of this Agreement, or if Manager breaches or is in default of any term or condition of this Agreement, City may give Manager written notice specifying with reasonable particularity the unsatisfactory performance or default. If Manager fails or refuses to remedy such unsatisfac- tory 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 Golf Course or any facility thereon to be used for any improper, unlawful, immoral or objectionable purpose and shall not cause, maintain or permit any disorderly conduct, nuisance or waste in, on or about the Golf Course. Manager shall not conduct any activity or sell anything W10 at or on the Golf Course except as specifically authorized in this Agreement. 9. Manager shall not make any improvements of a permanent nature to the Golf Course or install any sign on the Golf Course or make any additions, changes, remodeling or alterations to any building on the Golf Course without the Director's prior written approval and obtaining all permits required therefor. All such improvements, signs, additions, changes, remodeling or alterations shall remain the property of the City. 10. It is understood and acknowledged by the parties that the relationship of Manager to City is that of 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. 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. 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 here- under, 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. If this Agreement is terminated for any reason or is not extended beyond its initial five year period or renewal period, if applicable, City will purchase from Manager (i) all equipment, furnishings, fixtures and utensils (excluding merchandise, food- stuffs or beverages) located on and then being used at the Golf Course and (ii) all golf related merchandise with the Walkingstick Golf Course logo imprinted thereon, which was purchased and paid for by Manager with its own funds. The purchase price shall be mutually agreed upon by City and Manager. If City and Manager are unable to mutually agree upon the purchase price within thirty days after termination or non - renewal, the purchase price shall be determined by three appraisers familiar with the values of the items to be purchased, selected as follows: one by City, one by Manager, and one jointly by the appraisers selected by City and Manager. The three appraisers by a majority decision shall deter- mine the purchase price within thirty days after their appoint- ment. 14. This Agreement sets forth all understandings and agreements between City and Manager. No change, modification or amendment shall be valid and binding unless set forth in writing, signed by City and Manager, and approved in writing by City Manager. No verbal agreement or understanding with any officer, employee or agent of the City, either before or after execution of this Agreement, shall affect, modify or change any of the terms or provisions of this Agreement. 15. This Agreement shall not be assigned in whole or in part, nor shall the Golf Course or any part thereof be sublet, nor shall any right or privilege herein granted to Manager be sold, transferred or assigned without the prior written approval of the City. 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 termina- tion of this Agreement at the option of the City. 16. City reserves the right to enter upon the Golf Course and all facilities thereon at any time for any reason. 17. The waiver by City of any breach of any term or provi- sion 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. 18. 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: 363 South Archer, Pueblo West, Colorado, 81007; or to such other place as City or Manager may from time to time designate in a written notice to the other party. 19. If any provision of this Agreement is declared invalid or unforceable by a court of competent jurisdiction, the unaffect- ed provisions hereof shall remain in full force and effect. 20. 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. 21. Notwithstanding any provision of this Agreement to the contrary, City may terminate this Agreement without penalty at the end of any three -year period upon 120 days prior written notice given to Contractor. Any such termination shall be subject to the purchase provisions of paragraph 13 hereof. Executed the day and year first above written. CITY OF PUEBLO, A MUNICIPAL CORPORATION ZAREMBA ENTERPRISES, INC. By By Pr dent of the C'ty Co nci1 President Attest: l �� Attest City Clerk Secretary -10- GUARANTY In consideration of the City of Pueblo, a Municipal Corporation approving and executing the foregoing Management Agreement, the undersigned Michael Zaremba does hereby personally guarantee the performance of the Management Agreement by Zaremba Enterprises, Inc. In the event of the default of Zaremba Enterprises, Inc. under any provision of the Management Agreement 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 Management Agreement to be performed by Zaremba Enterprises, Inc. thereunder. Signed the I day of December, 1990- Michael Z mba TJ 48.33 -11-