HomeMy WebLinkAbout1998 Ordinance No. 063•
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ORDINANCE NO. Y!3
SERIES OF 1998
BY AUTHORITY
CO U NCIL BILL NO . 49
INTRODUCED BY COUNCIL
MEMBER WAGGONER
AN ORDINANCE AUTHORIZING AN AMENDMENT TO THE PRO::PUTT
SYSTEMS , INC. AGREEMENT.
WHEREAS , the Englewood City Council approved an agreement for a miniature golf
course at the Englewood Golf Course by the passage of Re s olution No. 1, in 1988; and
WHEREAS, in 1990 the Englewood City Council passed Resolution No . 67 ,
authorizing a change in the contract to include a Go Kart facility; and
WHEREAS , the City Council passed Resolution No. 49 , in 1992 amending the
agreement regarding fees and allowing a deduction of the cost of insurance for Go Kart
rentals from its monthly fe e payment to the City ; and
WHEREAS , in 1994 the City Council authorized a lease of the Clubhouse Building
by the passage of Ordinance No . 30 ; and
WHEREAS , the City Council passed Resolution No. 40 , Series of 1995 amending
the existing agreement to include a Drag Strip at which time the contract was
amended and the insurance deduction was inadvertently omitted ; and
WHEREAS , by the passage of this Ordinance the Agreement will be amended
allowing the deduction for the insurance cost from gross sales ;
NOW , THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO , AS FOLLOWS:
Section l. The City Council of the City of Englewood , Colorado hereby authorizes
an amendment to the "Agreement For Operation Of Miniature Golf Course And Go
Kart Track -1995" under Section 4 -C, amending the Agreement allowing the
deduction of liability insurance cost for Go-Kart and Dragster concessions from its
monthly fee payment to the City , a copy is attached hereto as "Exhibit A ."
Section 2. The May or and the City Clerk are hereby authorized to sign and attest
said Agreement on behalf of the City of Englewood.
Introduced, read in full , and passed on first reading on the 21st day of September,
1998 .
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Published as a Bill for an Ordinance on the 25st day of September, 1998.
Read by title and passed on final reading on the 5th day of October, 1998 .
Published by title as Ordinance No~ Series of 1998 , on the 9th day of
October, 1998.
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I, Loucrishia A. Ellis, City Clerk of the City of Englewood , Colorado, hereby certify
that the above and foregoing is a true COP/J;f the Ordinance passed on final reading
and published by title as Ordinance No . <.(1:1, Series of 1998.
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AGREEMENT FOR OPERA.TION OF
MINIATURE GOLF COURSE AND GO KART TRACK -1995
THIS AGREE::YIBNT i s a contract that is binding upon the parties, who are the CITY OF
ENGLEWOOD [hereinafter "City"] and PRO:: PUTT SYSTEMS, INC . [hereinafter
"Operator"].
IT IS THE LNTENTION of t he parties that there be a twenty-seven (27) hole miniature
golf course and Go Kart facility to be constructed and operated in a beneficial and
aesthetically compatible manner upon a portion of the premises of the existing Englewood
Municipal Golf Course .
NOW , THEREFORE , in consideration of t he covenants and agreements herein contained
and of the fees and monies hereinafter set forth, the parties mutually agree and contract as
follows:
1. Right to Occupv and Operate.
The City hereby grants the exclusive right, license , and privilege to Operator to
construct , operate, maintain and provide amenities for a twenty-seven (27) hole
miniature golf co urse , Go Kart facility , miniature drag strip, boat ride facility , bike and
trail rental facility and clubhouse upon a parcel of land described in Exhibit A
attached hereto , and which is presently a part of t he existing Englewood Municipal
Golf Course . The Clubhouse and eighteen (18) holes shall be wheelchair accessible.
Such construction , operation, maintenance and provision of amenities shall hereinafter
be referred to as "Concession."
The City shall at all times retain and maintain its ownership of the real property so
occupied.
No other activity may be conducted pursuant to this Agreement without the written
consent of the City Manager.
2. Concession Subject to Apwoval.
The Concession and its operation, including construction, design, signage ,
maintenance , and provision of amenities , as well as all activities set forth in the
following paragraph, shall be subject to the approval of the City, through its
designated representative, which approval may be granted or withheld in the City's
sole discretion for any reason when acting in good faith. The City must act promptly in
deciding to grant or withhold its approval for any action of the Operator affecting the
Concession.
The Operator must promptly provide the City with any and all details of, or changes
in, or make available upon request to the City any and all details of, or changes in, the
following: Go Kart equipment, construction design, location, landscaping, scheduling,
materials . standards , contractors , subcontractors , working personnel, name,
operational design, layout, location. landscaping, hours and days of operation,
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materials, standards, signage, employees, employee dress, food and drink, sale goods,
concession items, all business accounts and books, receipt totals, and any and all
business records reasonably necessary to determine accurate, true and correct fees due
and owing to the City.
Operator shall keep and maintain detailed records of all sales of any kind whatever
and of all expenditures in the construction and operation of the concession.
If at any time, come or any portion of the construction or design of the concession or its
operation is unsatisfactory to the City in its sole discretion, then the City may order
and require that such concession and/or operation be altered and changed forthwith in
a fashion determined by the City in its sole satisfaction and at the Operator's sole
expense.
3. IwJ:L
This Agreement shall be in effect through September 1, 2010, unless sooner
terminated pursuant to the terms set forth herein; and the Operator shall have the
exclusive right to renew for two (2) successive , additional five (5) year terms.
Renewal shall be automatic unless either party gives written notice no less than sixty
(60) days prior to the expiration of the then current term of this Agreement that
renewal is terminated.
This Agreement is not and shall not be construed as a franchise , and the City and
Operator shall have the right to mutually and/or unilaterally cancel this Agreement as
set forth herein.
4.~.
The operator shall compensate the City by monthly payments for the following items:
A. Miniature Golf -beginning January 1, 1995 -10 % of the gross income from the gross
gate fee or of any other fee for admission for the miniature golf concession.
Beginning January 1, 1996 -11 % of the gross income from the gross gate fee or of any
other fee for ad.mission.for the miniature golf concession.
Beginning January 1, 1997 -12% of the gross income from the gross gate fee or-of any
other fee for admission for the miniature golf concession.
Beginning January 1, 1998 -13% of the gross income from the gross gate fee or of any
other fee for ad.mission for the miniature golf concession.
Beginning January 1, 1999 -14% of the gross income from th~ gross gate fee or of any
other fee for ad.mission for the miniature golf concession.
Beginning January 1, 2000 -15% of the gross income from the gross gate fee or of any
other fee for ad.mission for the miniature golf concession.
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B. Go-Kart, Jr. Dragster and Boat Rental -beginning January l. 1995 -10% of the gross
income from the gross gate fee or of any other fee for admissio:: for the Go-Kart, Jr.
Dragster and Boat Rental concession.
Beginning January 1, 1996 · 11 % of the gross income from the 5I'OSS gate fee or of any
other fee for admission for the Go-Kart, Jr . Dragster and Boat 3.ental concession.
Beginning January l ~ 1997 · 12% of the gross income from the 5I'OSS gate f ee or of any
other fee for admission for the Go-Kart, Jr. Dragster and Boat 3.ental concession.
Beginning January 1, 1998 · 13% of the gross income from the 5I'Oss gate fee or of any
other fee for admission for the Go-Kart, Jr. Dragster and Boat 3.ental concession.
Beginning January 1, 1999 · 14% of the gross income from the gross gate fee or of any
other fee for admission for the Go-Kart, Jr. Dragster and Boa;: 3.ental concession.
Beginning January 1, 2000 -15% of the gross income from the gross gate fe-e or of any
other fee for admission for t he Go-Kart, Jr. Dragster and Boa: 3.ental co ncession.
C. PRO:: P u TT SYSTEMS , INC . will be allowed to deduct the J;." :iility i.r:.surance cost
(not to exceed $2,000 annually) for Go-Kart and Dragster conc::::ssions :T om its monthly
fee payments to the City of Englewood.
D. Mountain Bike and other Trail Rental -15 % of t he gross incoc.e for d :e te:-:n of the
Agreement .
E. Food and drink sales 10 % of t he gross income for the term of :.::e Agre-e::ne!'.1.t.
All fees .shall be due and payable within fifteen (15) days afte.:-:he enc of ±e prior
month. Reports with sufficient information and approval by :::.e Direc:or of Financial
Services shall be made for each month the concession i s opera :.ed.
Failure t o make t imely pay ments as required .shall cause a fi.r:2.:ice c~<>rge :o accrue
against the Operator and for the City in an amount equal to c:::e and :me-half percent
(1.5 %) of t he unpaid balance per month.
Any such failure to make payment shall be considered a mate~..al bre a ch. of this
Agreement.
5 . Parking.
Parking shall include those existing parking spaces presently z.v ailab i.e t o the
Englewood 1-funicipal Golf Course.
6 . City Particip a tion.
In addition to those matters set forth elsewhere herein, the C._.-shall also pay the
charge for the water tap and the sewer tap . The water tap a.::.:i sewe r :.ap shall at all
times be the property of the City of Englewood, The City sha=. pay fer :he installation
of a fire h y drant within one hundred (100) feet of the clubhou.:..e . The Ci ty shall pay for
the installation of the water and sewer lines. The Operator s ~ be ~sponsible for all
service charges on water and sewer service .
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7 . Utilities and Security.
The Operator shall be responsible for installation, provision and pa)-:lent for all
utilities (except water and sewer to the extent they are considered ru:.d. construed to be
utilities as set forth previously herein). Security shall be the respon.::~n ility of the
Operator, who shall ensure that the public, and any trespasser(s), si:..all not occupy
and use the concession and its premises when it is not open for busi::.ess. 8. Personnel
and Maintenance .
The Operator shall be responsible for providing any and all personne.;. for operation of
the concession, and for proper maintenance thereof, subject to the Ci-=?'s approval as
set forth above .
The Operator shall be reasonable for maintaining that area two feei; 2') outside
perimeter fence to the sole satisfaction of the City. The City shall be ::=sponsible for
maintenance of remaining City property , including easements .
9. Safetv of t he Public .
The Operator shall operate the concession so as t o keep the public a=.d i ts users safe
from reasonably foreseeable harm . Any and all injuries or damage i:.:: t he public shall
be reported to the City within one hour thereof, or if same should occ-.::::-after City hours
or on weekends , then by 8 :30 a.m . the next working day.
10 . Obedience t o Ail La ws and Pavment of a ll Ch a rge s.
Operator shall obey and immediately comply with any and all appliC3.b l e local, state
and federal requirements , ordinances , regulations , rules , laws and s-:.atutes . Operator
shall also comply with all ordinances , resolutions and rules of the Ci-:y of Englewood.
Operator shall pay all t axes , fe e s a nd charges imposed by others on :..:'s concession
operation.
11. P erformance B ond .
The Operator shall furnish to the City a performance bond in the ar::.:u.nt of Ten
Thousand Dollars ($10,000) guaranteeing faithful P.erformance and ;ayment of all
terms, covenants , and conditions herein, as well as compliance with ~y and all
applicable local, state and federal requirements , regulations , rules, 2.ws and statutes
as well as in the event of construction of improvements.
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12. Indemnification and Insurance. ·-
Before any construction or any activity related to construction shall commence. :::ie
amount of which will exceed Ten Thousand Dollars ($10,000) in whole or in :;:a=--or
any activity related to construction, the Operator shall provide a payment ar:.C
performance bond to insure payment of all obligations incurred as a result of sci-l
construction or activity. The performance bond shall be in a form approved:._. ~e
City.
The Operator shall before any construction begins procure and maintain in :-C· -::::,rce
and effect at it's sole expense a public liability insurance policy naming the C~.· as an
additional named insured. This policy shall remain in full force and effect ccr:=::::.iously
during this and any successive term of this Agreement, and it shall include
comprehensive liability coverage as follows: $1,000 ,000 for injury or death ,~.; ~Y one
or more persons; $1 million for injury or death occurring as a result of any ore.: ;.::::ident;
$1,000 ,000 for property damage; $1,000,000 for product liability .
A certificate evidencing said insurance policy shall be kept on file at all tim:s .. _:lithe
City and it shall contain a provision that it may not be altered. amended or ~-.~eled
without first giving written notice to the City thirty (30) or more days prior ~o .
Such policy or policies shall contain no right of subrogation against the Cir:·.
The Operator hereby indemnifies the City from any and all claims against :.: =--sing
from any activities pursuant to this Agreement. The City owns and operates ;
municipal golf course nearby and each party is responsible for i t.sown ope.!"2.~ .
The Operator agrees to carry adequate lost business, general business , fire . ~~,
personal injury and property damage insurance covering all aspects of the ~-·:::ssion
operation in an amount and with a company to be approved by c:he City Dir:-_ _,_ of
Financial Services.
All policy or policies shall contain no right of subrogation against the City.
13. Inspection of Premises.
The City shall have the right to examine and inspect the premises. includ.i::.~,
reasonable notice , private office areas .
14. No Assignment or Subletting.
The Operator, may not sell, assign, mortgage, sublet or otherwise convey, re :~." se or
pass on any part of its interest in the concession without the prior perrniss:C::. ~:he
City, which has a right of first refusal as set forth below . The Operator, n:a; .=i.:r:; suffer
or cause a lien to be filed against the concession or any part thereof.
The Operator shall be responsible and liable to the City for any and all fees ~~..:
payments to the City, as well as any and all other terms and conditions of~
Agreement.
Such assignment to the Bank/SBA is conditioned upon the City having a rig:-:: ::£ 5rst
refusal to approve successor Operator appointed by the Bank/SB.A. If the C-;:: :-:fuses
a proposed successor operator other than for cause, City will cash out the lea=.
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15. Material Breach. ·-
The parties agree that the happening of any of the following events shall constitute a
material breach of this Agreement and City may, at its election, terminate the
Agreement upon the happening of any of the following events:
a. Operator shall fail to maintain and operate the concession according to the terms
of this Agreement.
b . Operator shall fail t o pay the City the fees provided in Paragraphs 4 or 5 ,
whichever is applicable , within thirty (30) days of date when they are due.
c. Operator shall deny the City the right to inspect t he concession at reasonable
times upon notice .
d. Any assignment or transfer of any interest of Operator without the City's approval.
e . Operator shall be bankrupt as defined by the law s of t he Cnited States, of
America, become ins olv ent, or a receiver, whether p ermanent or temporary, for all
or substantially all of t he Operator's property shall be appointed by any Court, or
Operator shall make a general assignment for the benefit of it's creditors, or a
voluntary or involunt ary petition under any bankruptcy law shall be filed with
respect to Operator.
f. Operator shall fail t o keep in effect insurance as provided herein.
16. Right of First Refus al.
In the event that the City gives its permission to the Operator to sell the concession,
the City may exercise a first right ofrefusal as follows : Operator must present a bona
fide offer of sale-purchase to the City. The City may t hen match or exceed the sale-
purchase price and purchase the concessi on.
1 7 . Effect of Termination bv Ci ty .
Upon termination of t his Agreement by the City upon a material breach, the City shall
have the option for thirty (30) days following such termination to purchase Ope_rator's
leasehold improvements , fixtures , signs , equipment ·and other property for a sum
equal to the fair market value less all monies due to the City under this Agreement.
Fair market value shall be determined by two appraisers , one appraiser selected by
the City and one appraiser selected by the Operator. If these two appraisers fail to
agree on fair market value , then the two appraisers shall select a third appraiser who
determine fair market value of t he property .
If the City refuses to purchase the improvements then the Operator shall have thirty
(30) days to remove the fixtures and equipment. The City may withhold sufficient
fixtures and property in order to pay all monies due to the City under this Agreement.
Any sum to be paid shall be offset by any payment to third parties .
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18. Trade Name .
The trade name of RIVERSIDE MINIATURE GOLF CLUB shall remain at all times
the property of Operator unless purchased by City.
19. Termination by Operator.
This Agreement may be terminated by Operator upon sixty (60) days' written notice to
the City. Operator shall, at it's option, have the right to remove all buildings,
furniture, fixtures, signs, equipment and other property and leasehold improvements
within thirty (30) days of notice of termination delivered to the City other than those
improvements supplied by City, which are water and sewer tap and fire hydrant.
20. Delivery Upon Termination.
Subject to the terms of this Agreement, Operator shall deliver the concession and
premises to the City at termination of this Agreement in as good condition and state of
repair as when received, except for ordinary wear and tear or loss or damage caused by
act of God.
21. Force Majuere.
Performance of this Agreement shall be excused if rendered impossible by act of God.
22. Attornev Fees .
Any breach or failure to pay any fee required hereby shall entitle the successful party,
who was required to collect a fee sum or charge or enforce this Agreement, reasonable
attorneys fees and costs of collection.
SO AGREED.
CITY OF ENGLEWOOD
ATTEST:
Thomas J. Burns, Mayor
Loucrishia A. Ellis, City Clerk
Date:---------
PRO:: PUTT, INC.
By'~'/~
Debra LosilllPSO
SecretaryiTreasurer
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• COUNCIL COMMUNICATION
Date Agenda Item Subject
Amendment to Pro Putt, Inc .
September 21 , 1998 11 a i Contract
Initiated By Staff Sources
Jerrell Black , Director of Parks and Recreation
Parks and Recreation Department Bob Spada , Golf Manager
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
1988-Initial agreement with Pro Putt , Inc. was to provide 54 hole Miniature Golf facility. Term was for
seven years . (Resolution # 1)
1990-Change in contract to include a Go-Kart facility and reduce the number of golf holes to 45. Term
of contract was for ten years. (Resolution # 67) Deduction for insurance was included in contract.
1990-Sign agreement for lease of entry sign (Resolution # 95).
1992-Amend existing agreement regarding fees. (Resolution # 49)
• 1994-Purchase of clubhouse building and lease of building to Pro Putt, Inc. (Ordinance# 30)
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1995-Amend existing agreement to set fees, including Drag strip and extending contract to the year
(Resolution # 40)
RECOMMENDED ACTION
Recommendation from the Parks and Recreation Department to adopt a bill for an ordinance amending
the current agreement with Pro Putt , Inc. The amendment would allow for Pro Putt, Inc . to deduct
insurance costs (not to exceed $2 ,000 annually) for Go-Karts and Dragsters from monthly fee
payments due to the City of Englewood . Staff recommends that this be effective beginning January 1,
1998 .
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Pro Putt , Inc . began a miniature golf operation in 1988. The City of Englewood leases the property to
Pro Putt , Inc. and Pro Putt , Inc. pays a percentage of the gross sales to the City of Englewood. In
1990 Pro Putt , Inc . was allowed to deduct the insurance cost from its monthly fee payments due to the
City of Englewood. However, in 1995 when the contract was again amended the insurance deduction
was inadvertently omitted from the contract.
FINANCIAL IMPACT
Since 1990, the revenue history includes the insurance deductions. Therefore , future revenues will
include the insurance deduction ($2,000 maximum).
History of revenues received from Pro Putt , Inc.:
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
LIST OF ATTACHMENTS
Proposed Ordinance
Pro Putt , Inc. Contract
$ 4 ,403
$15,205
$13 ,151
$34,329
$20 ,532
$13 ,387
$14,616
$14,688
$16,422
$14 ,900
Recommendation from Parks & Recreation Commission
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MEMORANDUM
TO : Englewood City Council
Gary Sears, City Manager
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FROM: Parks and Recreation Commission
Debby Severa, Recording Secretary ~J
DATE: September 11 , 1998
RE: Recommendation to City Council regarding Riverside Contract
At the September Parks and Recreation Commission meeting, Commission members discussed
the Riverside Miniature Golf and GoKart contract. After a brief discussion, a motion was made
by Commission member Armstrong and seconded by Commission member Neyer to accept the
proposed amendment to the Rivers ide Agreement. The change would allow the owner of
Riverside to deduct the cost of insurance of $2 ,000 maximum per year from the net income. The
motion passed unanimously .
cc : Jerrell Black, Director of Parks and Recreation
Bob Spada, Golf Course Manager
Parks and Recreation Commission members
recriverside