HomeMy WebLinkAbout7238RESOLUTION NO. 7238
A RESOLUTION APPROVING A PROFESSIONAL SERVICES
AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND
WOODSIDE GOLF, 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 City Park Golf Course and its related
facilities; and
WHEREAS, Manager is qualified and capable of managing, promoting,
maintaining and operating the City Park Golf Course and its related
facilities; and
WHEREAS, the acceptance of the negotiated agreement for operation,
maintenance, promotion and management of the City Park 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 October 12, 1993, between
Pueblo, a Municipal Corporation and Woodside Golf, Inc., relating to the
operation, maintenance, promotion and management of the City Park Golf
Course for the City, a copy of which is attached hereto and incorporated
herein, having been approved as to form 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.
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NINE 0 I M- �' 0"
Citk Clerk
INTRODUCED October 12, , 1993
BY: JOHN CALIFANO
Councilperson
APPROVED:
Pre si Ant of t e Council
CITY OF PUEBLO
CITY PARS GOLF COURSE
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT entered into as of the 12th day of October
1993, by and between the City of Pueblo, Colorado, a Municipal Corpora-
tion, 1 City Hall Place, Pueblo, Colorado, 81003, hereinafter referred to
as the "City ", and Woodside Golf, Inc., a Colorado Corporation, 3900
Thatcher Avenue, Pueblo, Colorado, 81005, hereinafter referred to as the
"Manager ".
WITNESSETH:
WHEREAS, the City now owns a municipal golf course open to public
play and located on the premises commonly known as 3900 Thatcher Avenue,
Pueblo, Colorado, and
WHEREAS, the City desires to engage a qualified Manager to manage,
operate, maintain and promote the golf course, and its related facilities,
and
WHEREAS, Manager is qualified and capable of managing, promoting,
maintaining and operating the golf course and its related facilities, and
WHEREAS, the acceptance of a negotiated agreement for the operation,
maintenance, promotion and management of the golf course, and its related
facilities would be in the best interest of the City of Pueblo,
NOW THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the City and Manager agree as follows:
1. As used herein, the following words and phrases shall have the
following meaning:
(a) "Golf Course" means the property owned by City comprising
the City Park municipal golf course including the maintenance building,
golf cart rental building, and clubhouse but excluding the restaurant area
of the clubhouse under lease to the restaurant concessionaire, the parking
lot, and such other areas as are herein otherwise excepted.
ation.
(b) "Director" means the City's Director of Parks and Recre-
2. (a) City hereby appoints and retains Manager, subject to and
upon the terms and conditions herein set forth, as an independent
contractor to operate, manage, maintain and promote the Golf Course for a
period of seven (7) years from October 31, 1993, to December 31, 2000,
unless sooner terminated as herein provided. During the effective period
of this Agreement, Manager shall have the exclusive privilege to sell golf
balls, golf clubs and golf related merchandise on the Golf Course. City
reserves the right to regulate the use and to fix and establish all fees
and charges for the use of the Golf Course and all facilities and
activities conducted thereon.
3. Manager accepts said appointment and agrees to operate, manage,
maintain and promote the Golf Course and perform the following services
during the effective period of this Agreement.
(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 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
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, aerating 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 superintendent, 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 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 acceptable 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 obliga-
tions 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) 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, will furnish Manager with an initial inventory of such
machinery, fixtures, and equipment and City and Manager shall annually
update such inventory.
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(g) Monitor all activities on the Golf Course to insure
compliance with all resolutions or ordinances of City governing the rules
of play, regulating the use of the Golf Course and facilities thereon, and
imposing fees and charges for use of or activities on the Golf Course.
(h) Keep and maintain accurate and complete accounts and records
of all activities and transactions conducted by Manager on the Golf Course
in accordance with generally accepted accounting principles, which
accounts and records shall be available for inspection, copy and audit by
City during normal business hours. Manager shall retain all such accounts
and records for a minimum period of three (3) years after termination of
this Agreement.
(i) Submit to Director during August of each year a proposed
Golf Course budget for the next calendar year. Manager understands and
agrees that the Golf Course budget will not include reimbursement for any
cost or expense incurred by Manager in (i) the employment of golf
professionals, pro shop employees and other employees hired to rent or
sell merchandise, (ii) the performance of management services, (iii) the
performance of the services and furnishing the items described in
subparagraphs (h), (r), (t), (u), (v) and (w) of this paragraph 3, (iv)
interior maintenance and repair of the starter building and clubhouse, but
including without limitation the pro shop, entrances, and (v) minor and
routine maintenance and repair of plumbing, electrical and heating
systems, and that such costs and expenses shall be the sole responsibility
of Manager. Manager further understand and agrees that the Golf Course
budget will contain only such items of reimbursement as the City Council
in its sole discretion may determine.
(j) Keep the Golf Course and all facilities thereon in a clean,
sanitary, safe and orderly condition.
(k) Be responsible for scheduling the use of the Golf Course and
all facilities and activities thereon, including without limitation,
scheduling and reserving tee times for golf play and the planning,
scheduling and overseeing of golf tournaments.
(1) Comply strictly with all applicable federal, state and City
laws, rules and regulations.
(in) Keep the Golf Course and all facilities thereon including
the pro shop and driving range open for business at such hours and times
as the Director and Manager shall from time to time determine subject to
the approval of the City 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
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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 and pro shop employees and
other employees hired to rent or sell merchandise) during the period
covered by such request. The City's Department of Finance will review the
verified requests and invoices and if in compliance with the approved
budget and this Agreement make reimbursement therefor provided that any
reimbursement for Manager's payroll will be made directly to Manager who
shall be solely responsible for paying its employees and withholding and
paying all state and federal payroll obligations and taxes. Manager shall
hold harmless and indemnify City from any such payroll obligations and
taxes and shall at least monthly account to the City and submit proof of
non - delinquency thereof.
(p) Meet with the Director at least monthly to review the
operation and maintenance of the Golf Course and the Golf Course budget
and expenditures and at least semi - annually to review the fees and charges
being made by Manager for merchandise, rentals and lessons, which fees and
charges shall be reasonable and competitive with fees and charges for
similar services and facilities. Manager shall be directly responsible to
the Director in all matters concerning the operation, maintenance,
promotion and management of the Golf Course.
(q) Surrender and deliver to City, at the termination of this
Agreement, (i) all remaining operating supplies, fertilizer and materials
the purchase of which was reimbursed by City, and (ii) the Golf Course and
all facilities thereon including equipment, fixtures and machinery
furnished or made available by City in as good condition and state of
repair as the same now are or were at the time of delivery to Manager or
may be hereafter improved by City or Manager, reasonable use and wear
excepted.
(r) Maintain in force at Manager's sole cost during the
effective period of this Agreement comprehensive general public liability
and property damage insurance, including personal and bodily injury,
blanket contractual, products liability, non -owned and hired motorized
carts and automobile coverage, covering all activities conducted by
Manager under this Agreement, in the minimum amount of $1,000,000
aggregate, per occurrence for personal and bodily injury and $600,000
aggregate, per occurrence for property damage. City reserves the right to
increase the amount of insurance in the event of increases in the amounts
specified in the Colorado Governmental Immunity act. Certificates
evidencing such insurance coverage and workers' compensation insurance
shall be filed with the Director within ten (10) days after execution of
this Agreement and said certificates shall certify that such insurance
coverage is in force and will not be cancelled or reduced without at least
thirty (30) days prior written notice to City and that the City is named
as an additional insured under the policies of liability insurance. At
least ten (10) days prior to the expiration of any such insurance, a
certificate showing such insurance has been renewed or extended shall be
filed with the Director.
(s) Maintain in safe operating condition and repair golf carts
furnished and made available by City to Manager. Manager shall provide
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each renter of the golf cart with the rules and regulations established by
City for the operation of golf carts at the Golf Course and shall be
responsible for the enforcement of such rules and regulations.
(t) Carry, furnish, provide and replace as needed, at Manager's
sole cost and risk sufficient and adequate stock -in- trade, merchandise and
equipment in the pro shop and starter building as determined necessary by
the Manager and Director to meet the reasonable needs and demands of the
public, including without limitation varied stock of merchandise for sale
at the pro shop. Manager shall not sell golf clubs or other golf related
merchandise at or from any other location within Pueblo County, Colorado,
during the effective period of this Agreement.
(u) Pay at Manager's sole cost, before same become delinquent,
all sales, use and property taxes on Manager's property. Manager shall
collect and remit to City all sales taxes on the sale or rental of
Manager's stock -in -trade and merchandise.
(v) Operate and manage the Golf Course as a public, facility for
the use and benefit of the public on a fair, equal and nondiscriminatory
basis without preferential treatment to any individual, group or entity
including without limitation, adjacent or nearby homeowners or businesses,
any school or School District, or the University of Southern Colorado, or
any person or group associated therewith. Manager shall comply fully with
state and federal antidiscrimination laws, rules and regulations and
specifically agrees that no person shall be denied or refused services or
other full or equal use of the Golf Course, nor denied employment
opportunities by Manager as a result of race, creed, color, sex, age,
national origin, ancestry or handicap unrelated to ability or job
performance.
(w) Obtain at Manager's cost and expense all licenses required
for the operation of the Golf Course and the activities conducted thereon.
4. City, subject to availability of sufficient appropriated funds
therefor, shall:
(a) Furnish and make available for the Golf Course equipment and
machinery not furnished and supplied by Manager which is necessary in the
City's sole judgment for the operation and maintenance of the Golf Course.
(b) Reimburse Manager for costs incurred in accordance with
approved budgets and this Agreement for the operation and maintenance of
the Golf Course. City shall not be responsible for the salary or benefits
of golf professionals, pro shop employees, or other persons engaged to
rent or sell merchandise, employed by Manager, nor for any items required
to be supplied and furnished by Manager under paragraph 3(t), or for any
personal or private debts of Manager or any expenditure in excess of or
not authorized by the approved budgets and Manager shall indemnify and
hold harmless City therefrom.
(c) Repair and maintain the parking lot, maintenance building,
and the exterior of other buildings located on the Golf Course including
roofs, walls and foundations, and, except for minor and routine repairs,
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repair and maintain the heating, plumbing and electrical systems in such
buildings.
(d) Provide City employees to act as cashiers who shall be
physically located at the pro shop or such other location as Manager and
Director shall mutually determine and who shall be under the supervision
of the Director of Finance of the City and responsible for the centralized
collection by the cash registers furnished by the City of all fees and
charges and other monies paid for the use of or activities upon the Golf
Course except restaurant and lounge receipts but including without
limitation all fees and charges for rent of golf carts, clubs and golf
balls, lessons, driving range, and sale of merchandise by Manager. All
such fees, charges and other monies paid to or collected by Manager shall
be held by Manager, in trust, and remitted to the City's cashiers on the
day of receipt or if a cashier is 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 reimbursement as the City
Council in its sole discretion may determine. Neither the 1993 budget for
the Golf Course nor any subsequently adopted budget shall be binding upon
the City for any year except for the year adopted- City may adjust
budgets based upon prior actual and anticipated revenues and expenses and
to protect the City from unreasonable or excessive operation and
maintenance costs.
5. In consideration of the services to be rendered and performed by
Manager hereunder, City shall pay to Manager an annual management fee of
$45,000.00. The annual management fee shall be paid in twelve equal
monthly installments. All gross revenues, excluding sales taxes, fees and
charges generated for the following activities shall be paid and remitted
in the following percentages:
Activity Manager city
Golf lessons 100 0
Driving range 15 85
Green fees 0 100
Motorized cart rentals 15 85
Sale of merchandise 100 0
Hand pulled carts &
club rental 100 0
Locker rental 100 0
In lieu of no monthly fee for use of the Pro Shop facility at the City
Park Golf Course Club House, Manager will use its own funds to remodel the
Pro Shop according to plans and specifications approved by City within
ninety (90) days after written request from City to perform such
remodeling work.
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The management fee and Manager's percentage of fees and charges shall
be reviewed on November 1st of each year and may be annually increased or
decreased by the City manager based upon Manager's performance and the
profitability of Golf Course activities.
6. Manager shall fully indemnify and hold harmless, protect and
defend at its sole cost and expense, the City, its officers, agents and
employees from and against any and all risks, suits, damages, expenses,
penalties or claims (including costs and reasonable attorney fees) which
City, its officers, agents or employees may incur or become liable as a
result of the injury to or death of any person or persons, or the loss or
damage to any property, or the violation of any law or regulation arising
out of or in connection with the operation of the Golf Course or the
performance of this Agreement by Manager or any of its officers, agents or
employees or any other person acting on behalf of Manager.
7. Time is of the essence hereof and to each and every provision of
this Agreement. If in the judgment of City Manager of City the manner of
maintenance or operation of the Golf Course or the quality or quantity of
service or merchandise does not meet the requirements of this Agreement,
or if Manager breaches or is in default of any term or condition of 1 1 - 1 - da
Agreement, City may give Manager written notice olpecifying with reasonable
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particularity the unsatisfactory performance or default I M an ag e r L a
i 1
or ref tc reiiiedy such unsatisfactory performance or default within
thirty (30)) days after receipt of s notice, City may terminate t
Agreeiiien". 11 City lni��.�titiLites any litigation to enforce it-S rights or
11r? 'i 4 J,, - iager agrees o t pay a`1
C U I , ( _J e L, is Agreement, 11at
enf inulLiding reasonable attorney JltneSl.
1 1a i i c A � I L,
agpr 11.inderstand�2. and agrees thiat although io,:ated' in the same
bI.J11cling, the operal +' io�n of the pro shop is separate from the
0 the restaurant except for common use of the restrooms.
Manager shall cooperate with the operator of the restaurant to obtain the
most harmonious and greatest use of the clubhouse by the public and to
provide adequate security for those portions of the clubhouse which may be
closed to public use from time to time. Manager shall not use or allow
the Golf Course or any facility thereon to be used for any improper,
unlawful, immoral or objectionable purpose and shall not cause, maintain
or permit any disorderly conduct, nuisance or waste in, on or about the
Golf Course. Manager shall not conduct any activity or sell any thing at
or on the Golf Course except as specifically authorized in this Agreement.
9. Manager shall not make any improvements of a permanent nature to
the Golf Course or install any sign on the Golf Course or make any
additions, changes, remodeling or alterations to any building on the Golf
Course without the Director's prior written approval and obtaining all
permits required therefor. All such improvements, signs, additions,
changes, remodeling or alterations shall remain the property of the City.
10. It is understood and acknowledged by the parties that the
relationship of Manager to City is that of any independent contractor and
that Manager shall have no authority to employ any person as employee or
agent for or on behalf of City for any purpose.
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11. If the consent or approval of the Director or City Manager is
required under this Agreement for any purpose, such consent or approval
will not be unreasonably withheld.
12. In the event a dispute 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. City will purchase on or before October 31, 1993, from Manager
40 golf carts located on and being used at the Golf Course which were
purchased and paid for by Manager with its own funds. The purchase price
shall be $1,800.00 per cart and the purchase price shall include all golf
cart parts and accessories and all Managers tools and equipment used by
Manager in the repair and maintenance of golf carts. The Purchase price
may be paid in installments. Manager shall convey marketable title free
and clear of lien and encumbrances, to City by Bill of Sale with warranty
of title. All golf Carts will be in good working order and condition.
14. City will make Capital Improvements up to the amount of
$5,000.00 for the purpose of remodeling the pro shop portion of the Golf
Course Club House.
15. If this Agreement is terminated for any reason, and if
applicable, City will purchase from Manager all golf related merchandise
with the City Park Golf Course logo imprinted thereon, which was purchased
and paid for by Manager with its own funds. The purchase price shall be
mutually agreed upon by City and Manager. If City and Manager are unable
to mutually agree upon the purchase price within thirty days after
termination, the purchase price shall be determined by three appraisers
familiar with the values of the items to be purchased, selected as
follows: one by City, one by Manager, and one jointly by the appraisers
selected by City and Manager. The three appraisers by a majority decision
shall determine the purchase price within thirty days after their
appointment.
16. This Agreement sets forth all understandings and agreements
between City and Manager. No change, modification or amendment shall be
valid and binding unless set forth in writing, signed by City and Manager,
and approved in writing by City Manager. No verbal agreement or
understanding with any officer, employee or agent of the City, either
before or after execution of this Agreement, shall affect, modify or
change any of the terms or provisions of this Agreement.
17. This Agreement shall not be assigned in whole or in part, nor
shall the Golf Course or any part thereof be sublet, nor shall any right
or privilege herein granted to Manager be sold, transferred or assigned
without the prior written approval of the City, which approval may be
arbitrarily withheld. Any such sale, transfer, subletting or assignment,
whether voluntary or involuntary, without the prior written approval of
City shall be void and constitute grounds for immediate termination of
this Agreement at the option of the City-
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18. City reserves the right to enter upon the Golf Course and all
facilities thereon at any time for any reason.
19. The waiver by City of any breach of any term or provision of
this Agreement shall not be deemed to be a waiver of such term or
provision for any subsequent breach of the same or any other term or
provision.
20. Any notice required under this Agreement shall be in writing and
personally delivered or sent by United States certified mail, postage
prepaid, to:
(a) if to the City: City Manager, City of Pueblo, 1 City Hall
Place, Pueblo, Colorado, 81003,
(b) if to the Manager: 3900 Thatcher Avenue, Pueblo, Colorado,
81005;
or to such other place as City or Manager may from time to time designate
in a written notice to the other party.
21. If any provision of this Agreement is declared invalid or
unforceable by a court of competent jurisdiction, the unaffected
provisions hereof shall remain in full force and effect.
22. This Agreement shall be governed by the laws of the State of
Colorado and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and approved assigns.
23. Notwithstanding any provision of this Agreement to the contrary,
City may terminate this Agreement without cause or penalty at the end of
any three -year period of this Agreement upon 120 days prior written notice
given to Manager. Any such termination shall be subject to the purchase
provisions of paragraph 15 hereof.
Executed the day and year first above written.
CITY OF PUEBLO,
A MUNICIPAL CORPORATION
By _
Pre dent of the City Council
Attest:
4CitCl�erk
WOODSIDT GOLF, INC.
By
Presi4 t
Attest: DO
Secretary
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GUARANTY
In consideration of the City of Pueblo, a Municipal Corporation
approving and executing the foregoing Management Agreement, the
undersigned Gary Woodside does hereby personally guarantee the performance
of the Management Agreement by Woodside Golf, Inc. In the event of the
default of Woodside Golf, Inc., under any provision of the Management
Agreement and written notice thereof is given to Gary Woodside, Gary
Woodside will timely cure such default and perform all the covenants and
provisions of the Management Agreement to be performed by Woodside Golf,
Inc., thereunder.
Signed the L day of UGC E2 -1993.
Gary Woodsi e
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