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HomeMy WebLinkAbout77401 RESOLUTION NO. 7740 A RESOLUTION APPROVING PROFESSIONAL SERVICES AGREEMENTS 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 continue the engagement of Zaremba Enterprises, Inc. to manage, operate, maintain and promote the Walkingstick Golf Course and its related facilities under modified management agreements, and WHEREAS, Zaremba Enterprises, Inc. is willing to continue such engagement under modified management agreements; and WHEREAS, entering into modified management agreements for operation, maintenance, promotion and management of the Walkingstick Golf Course would be in the best interest of the City of Pueblo; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Walkingstick Golf Course Management Agreement dated November 13, 1995 between Pueblo, a Municipal Corporation and Zaremba Enterprises, Inc. relating to the operation, maintenance, promotion and management of the Walkingstick Golf Course (excluding the restaurant, lounge and pro -shop) and the Walkingstick Golf Course Pro -Shop, Restaurant And Lounge Management Agreement dated November 13, 1995 between Pueblo, a Municipal Corporation and Zaremba Enterprises, Inc. relating to the maintenance, promotion, management and promotion of the Walkingstick Golf Course restaurant, lounge and pro -shop, copies of which are attached hereto and incorporated herein, having been approved as to form by the City Attorney, are hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver the Agreements in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED November 13, 1995 By John Califano Councilperson ATTEST: APP VED: City Cler resident of the City Council CITY OF PUEBLO WALKINGSTICK GOLF COURSE PRO -SHOP, RESTAURANT AND LOUNGE MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into as of the 13th day of November, 1995, 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 and operates a municipal golf course which is open to public play and located on the premises commonly known as "Walkingstick Municipal Golf Course ", 4301 Walkingstick Boulevard, Pueblo, Colorado, and WHEREAS, there is located in the Walkingstick Municipal Golf Course clubhouse a pro - shop, restaurant and lounge, and WHEREAS, the City desires to engage a qualified manager to manage, operate, maintain and promote the pro -shop, restaurant and lounge, and WHEREAS, Manager is qualified and capable of managing, promoting, maintaining and operating the pro -shop, restaurant and lounge; NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the City and Manager agree as follows: As used herein, the following words and phrases shall have the following meaning: (a) "Golf Course" means and includes the property owned or leased by City comprising the Walkingstick Municipal Golf Course and all facilities thereon including, without limitation, the clubhouse, restaurant, lounge, pro shop, starter building, maintenance building and parking lot. (b) "Leased Facilities" means and includes the pro -shop, restaurant and lounge located on the first floor of the Golf Course clubhouse consisting of approximately 3,376 square feet of floor area. (c) "Director" means the City's Director of Parks and Recreation. 2. City hereby appoints and retains Manager, subject to and upon the terms and conditions herein set forth, as an independent contractor to operate, manage, maintain and promote the Leased Facilities for a term of five (5) years from December 1, 1995 to November 30, 2000, unless sooner terminated as herein provided. During the effective period of this Agreement, Manager shall have the exclusive privilege to sell golf lessons, beverages, food, foodstuffs, golf balls, golf clubs and golf related merchandise on the Golf Course. City reserves the right to locate City employees in the pro -shop portion of the Leased Facilities at such location mutually determined by Manager and Director for the purpose of collecting fees and charges for use of the Golf Course and golf carts. At the written request of Manager, City and Manager will no later than April 1, 2000 enter into discussions for the renewal of this Management Agreement. If City and Manager are unable for any reason to mutually agree upon the terms and conditions of such renewal by June 1, 2000, this Management Agreement will terminate November 30, 2000. 3. Manager accepts said appointment and agrees to operate, manage, maintain and promote the Leased Facilities 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 Leased Facilities and all activities thereon, including the efficient management and operation of the Leased Facilities, and the maintenance and upkeep of the interior of the Leased Facilities in at least the same or better condition than presently existing. (b) Develop and implement efficient maintenance programs for the Leased Facilities including the custodial and interior maintenance of the Leased Facilities. (c) Develop and implement efficient management programs for the operation, scheduling of and use of the Leased Facilities and the provision of services to the public including the presence of Manager's personnel. (d) Hire, supervise and schedule all employees needed and required for the efficient operation, maintenance, management and promotion of the Leased Facilities. It is expressly understood and agreed that all employees hired by Manager shall be the employees of Manager and no contractual obligations or relationship of employer - employee shall exist between the City and such employees. Manager shall provide all 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) 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. An initial inventory of such machinery, fixtures, and equipment shall be prepared and signed by the Director and Manager and attached hereto. Director and Manager shall annually update such inventory. (f) Keep and maintain accurate and complete accounts and records of all -2- activities and transactions conducted by Manager on the Leased Facilities in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy and audit by City during normal business hours. Manager shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. (g) Keep the Leased Facilities in a clean, sanitary, safe and orderly condition. (h) Comply strictly with all applicable federal, state and City laws, rules and regulations. (i) Keep the Leased Facilities 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. 0) Furnish prompt, courteous and efficient service adequate to meet all reasonable demands and needs of the public, ensuring polite and inoffensive conduct and demeanor on the part of its representatives, agents and employees. (k) Meet with the Director at least semi - annually to review the fees and charges being made by Manager for food, 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 Leased Facilities. (1) Surrender and deliver to City, at the termination of this Agreement, the Leased Facilities and all City equipment in good order and condition, reasonable wear and tear excluded. (m) Maintain in force at Manager's sole cost during the effective period of this Agreement comprehensive general public liability insurance, including personal and bodily injury, blanket contractual, products liability, non -owned and hired automobile coverage, covering all activities conducted by Manager under this Agreement, in the minimum amount of $1,000,000 aggregate, per occurrence for personal and bodily injury and $500,000 aggregate, per occurrence for property damage. Certificates evidencing such insurance coverage and workers' compensation insurance shall be filed with the Director on or before December 1, 1995 and said certificates shall certify that such insurance coverage is in force and will not be cancelled or reduced without at least thirty (30) days prior written notice to City and that the City is named as an additional insured under the policies of liability insurance. At least ten (10) days prior to the expiration of any such insurance, a certificate showing such insurance has been renewed or extended shall be filed with the Director. (n) Carry, furnish, provide and replace as needed, at Manager's sole cost and risk sufficient and adequate stock -in- trade, merchandise, food, foodstuffs, beverages, equipment, -3- furnishings and furniture in the Leased Facilities 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 foodstuff for breakfast, lunch and dinner menus and banquets. The Director shall approve the quality, quantity and decor of equipment, furniture, furnishings and fixtures prior to their purchase and placement thereof on the Golf Course by Manager. Manager and Director shall prepare and sign an inventory of equipment, furnishings, furniture and fixtures to be supplied and furnished by Manager and annually update such inventory. 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. (o) Pay at Manager's sole cost, before same become delinquent, all sales, use and property taxes on Manager's property and business conducted on the Leased Facilities. Manager shall collect and remit to City all sales taxes on the sale or rental of Manager's stock -in -trade and merchandise including food and beverages. (p) Operate and manage the Leased Facilities as public facilities for the use and benefit of the public on a fair, equal and nondiscriminatory basis without preferential treatment to any individual, group or entity. Manager shall comply fully with state and federal anti- 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 Facilities, 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. (q) Obtain at Manager's cost and expense all licenses required for the operation of the Leased Facilities 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 Leased Facilities or such other location or place as the Director shall in writing approve. 4. City, subject to availability of sufficient budgeted and appropriated funds therefor, shall repair and maintain the parking lot, and the clubhouse (except the interior of the Leased Facilities) including roofs, walls and foundations, and, except for minor and routine repairs, repair and maintain the heating, plumbing and electrical systems in the Leased Facilities. 5. For the use of the Leased Facilities, Manager shall pay to City a monthly fee of $2,000.00 commencing with the month of December 1995. 6. Manager shall fully indemnify and hold harmless, protect and defend at its sole cost -4- 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 Leased Facilities 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 Leased Facilities or the quality or quantity of service, merchandise or food does not meet the requirements of this Agreement, or if Manager breaches or is 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 unsatisfactory performance or default within thirty (30) days after receipt of such notice, City may terminate this Agreement. If City institutes any litigation to enforce its rights or remedies under this Agreement, Manager agrees to pay all costs of enforcement including reasonable attorney fees. 8. Manager shall not use or allow the Leased Facilities to be used for any improper, unlawful, immoral or objectionable purpose and shall not cause, maintain or permit any disorderly conduct, nuisance or waste in, on or about the Leased Facilities. Manager shall not conduct any activity or sell anything at or on the Leased Facilities except as specifically authorized in this Agreement. 9. Manager shall not make any improvements of a permanent nature to the Leased Facilities or install any sign on the Golf Course or make any additions, changes, remodeling or alterations to the Leased Facilities without the Director's prior written approval and obtaining all permits required therefor. All such approved improvements, signs, additions, changes, remodeling or alternations shall remain the property of the City. 10. It is understood and acknowledged by the parties that the relationship of Manager to City is that of an independent contractor and that Manager shall have no authority to employ any person as employee or agent for or on behalf of City for any purpose. 11. If the consent or approval of the Director, City Manager or City is required under this Agreement for any purpose, such consent or approval will not be unreasonably withheld. Any approval or consent required by the City shall be by Resolution adopted by the City Council of City. 12. In the event a dispute arises between Manager and the Director with respect to any provision of this Agreement or the obligations or performance of either the City or Manager hereunder, the Director or Manager may submit such dispute to the City Manager for resolution and determination. If such dispute is submitted to the City Manager for resolution, his decision thereon shall be binding upon all parties. -5- 13. If this Agreement is terminated for any reason or is not extended or renewed beyond its initial five year term, City will purchase from Manager (i) all equipment, furnishings, fixtures and utensils (excluding merchandise, foodstuffs or beverages) located on and then being used on the Leased Facilities 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 determine the purchase price within thirty days after their appointment. 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, approved by the City, and signed by City and 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 Leased Facilities or any part thereof be sublet, nor shall any right or privilege herein granted to Manager be sold, transferred or assigned without the prior written approval of the City. Any such sale, transfer, subletting or assignment, whether voluntary or involuntary, without the prior written approval of City shall be void and constitute grounds for immediate termination of this Agreement at the option of the City . 16. City reserves the right to enter upon the Leased Facilities at any time for any reason. 17. 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. 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 unenforceable by a court IN of competent jurisdiction, the unaffected 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. The Walkingstick Golf Course Management Agreement dated December 10, 1990 between City and Manager is terminated effective December 1, 1995 and City and Manager are released from all future obligations thereunder. Executed the day and year first above written. CITY OF PUEBLO, A MUNICIPAL CORPORATION B resident of the City Council Attest: City Cle ZAREMBA ENTERPRISES, INC. By �y President Attes Secretary 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 performance by Zaremba Enterprises, Inc. thereunder. Signed the 13th day of November, 1995. Michael Zaremba -7- CITY OF PUEBLO WALKINGSTICK GOLF COURSE MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into as of the 13th day of November, 1995, 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 and operates a municipal golf course which is open to public play and located on the premises commonly known as "Walkingstick Municipal Golf Course ", 4301 Walkingstick Boulevard, Pueblo, Colorado, and WHEREAS, the City desires to engage a qualified manager to manage, operate, maintain and promote the golf course, and WHEREAS, Manager is qualified and capable of managing, promoting, maintaining and operating the golf course; NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the City and Manager agree as follows: As used herein, the following words and phrases shall have the following meaning: (a) "Golf Course" means and includes the property owned or leased by City comprising the Walkingstick Municipal Golf Course and all facilities thereon including, without limitation, the clubhouse, starter building, maintenance building and parking lot, but excluding therefrom the pro -shop, restaurant and lounge located on the first floor of the Golf Course clubhouse consisting of approximately 3,376 square feet of floor area. (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 term of five (5) years from December 1, 1995 to November 30, 2000, unless sooner terminated as herein provided. City reserves the right to fix and establish all fees and charges for the use of the Golf Course and activities conducted thereon. (b) City may, without cause and without penalty, terminate this Agreement at the end of the third year of the five (5) year term of this Agreement, i.e., on November 30, 1998, upon 120 days prior written notice given to Manager. (c) All financial obligations of the City under this Agreement in any calendar year, including without limitation the financial obligations contained in paragraphs 4 and 5 hereof, are contingent upon funds for that purpose being budgeted and appropriated by the City Council of City on or before December 31 of the prior calendar year. Failure to budget and appropriate such funds by December 31 for any subsequent calendar year shall constitute an event of non - appropriation. In the event of non - appropriation, City or Manager may terminate this Agreement upon thirty (30) days prior written notice given to the other party. 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 maintenance and upkeep of the Golf Course 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 buildings, 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 the provision of services to the public including the presence of Manager's personnel, golf course superintendent, and golf professional 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, 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 (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 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 -2- 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 control 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. An initial inventory of such machinery, fixtures, and equipment shall be prepared and signed by Director and Manager and attached hereto. Director 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 therein, 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, (ii) the performance of management services, and (iii) the performance of the services and furnishing the items described in subparagraphs (h) and (r) of this paragraph 3, 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. 0) Keep the Golf Course and all facilities therein in a clean, sanitary, safe and orderly condition. (k) Be responsible for scheduling the use of the Golf Course and all 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. (m) Keep the Golf Course including the 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. -3- (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. (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), 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. 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. (r) Maintain in force at Manager's sole cost during the effective period of this Agreement comprehensive general public liability insurance, including personal and bodily injury, blanket contractual, products liability, non -owned and hired automobile coverage, covering all activities conducted by Manager under this Agreement, in the minimum amount of $1,000,000 aggregate, per occurrence for personal and bodily injury and $500,000 aggregate, per occurrence for property damage. Certificates evidencing such insurance coverage and workers' compensation insurance shall be filed with the Director on or before December 1, 1995 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. -4- (t) 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. 4. City, subject to availability of sufficient budgeted and appropriated funds therefor, shall: (a) furnish and make available for the Golf Course equipment and machinery 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 employed by Manager, nor 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 interior and exterior of other buildings located on the Golf Course (except the interior of the pro -shop, restaurant and lounge) including roofs, walls and foundations, and, except for minor and routine repairs, repair and maintain the heating, plumbing and electrical systems in the pro -shop, restaurant and lounge. (d) provide City employees to act as cashiers and /or starters 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 of all fees and charges and other monies paid and /or receipts thereof for the use of or activities upon the Golf Course except pro shop, restaurant and lounge receipts. All such fees, charges and other monies paid to or collected by Manager and receipts therefor shall be held by Manager, in trust, and remitted to City weekly. (e) annually submit to City Council of City 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 1995 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, -5- City shall pay to Manager (i) an annual management fee of $45,000.00 commencing December 1, 1995, payable in twelve equal monthly installments, and (ii) an amount equal to ten (10) percent of the gross revenue collected for driving range charges and motorized cart rentals, provided such amount shall not annually be greater than ninety -five (95) percent of the annual management fee payable under (i) above. All payments to Manager hereunder shall be paid monthly in arrears. The management fee payable to Manager under (i) above shall be increased on November 1, 1996 and each November 1 thereafter by the percentage increase in the Consumer Price Index (1982 -84 =100, U.S. City Average, All Items) during the prior 12 -month period. 6. Manager shall fully indemnify and hold harmless, protect and defend at its sole cost and expense, the City, its officers, agents and employees from and against any and all risks, suits, damages, expenses, penalties or claims (including costs and reasonable attorney fees) which City, its officers, agents or employees may incur or become liable as a result of the injury or death of any person or persons, or the loss or damage of any property, or the violation of any law or regulation 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 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 unsatisfactory performance or default within thirty (30) days after receipt of such notice, City may terminate this Agreement. If City institutes any litigation to enforce its rights or remedies under this Agreement, Manager agrees to pay all costs of enforcement including reasonable attorney fees. 8. Manager shall not use or allow the 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 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 approved improvements, signs, additions, changes, remodeling or alternations shall remain the property of the City. 10. It is understood and acknowledged by the parties that the relationship of Manager to City is that of an independent contractor and that Manager shall have no authority to employ any person as employee or agent for or on behalf of City for any purpose. In IL If the consent or approval of the Director, City Manager or City is required under this Agreement for any purpose, such consent or approval will not be unreasonably withheld. Any approval or consent required by the City shall be by Resolution adopted by the City Council of City. 12. In the event a dispute arises between Manager and the Director with respect to any provision of this Agreement or the obligations or performance of either the City or Manager hereunder, the Director or Manager may submit such dispute to the City Manager for resolution and determination. If such dispute is submitted to the City Manager for resolution, his decision thereon shall be binding upon all parties. 13. This Agreement sets forth all understandings and agreements between City and Manager. No change, modification or amendment shall be valid and binding unless set forth in writing, approved by the City, and signed by City and Manager. No verbal 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. 14. 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 termination of this Agreement at the option of the City. 15. City reserves the right to enter upon the Golf Course and all facilities thereon at any time for any reason. 16. 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. 17. 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, I 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. 18. If any provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, the unaffected provisions hereof shall remain in full force and effect. -7- 19. 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. 20. The Walkingstick Golf Course Management Agreement dated December 10, 1990 between City and Manager is terminated effective December 1, 1995 and City and Manager are released from all future obligations thereunder. Executed the day and year first above written. CITY OF PUEBLO, A MUNICIPAL CORPORATION B President of the City Council City C k ZAREMBA ENTERPRISES, INC. By President Attes't:. Secretary 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 performance by Zaremba Enterprises, Inc. thereunder. Signed the 13th day of November, 1995. Michael Zaremba