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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. FM 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. Old (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 3 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 4 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, 5 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. A 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 4 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. MA 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- M . 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 9 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 10