HomeMy WebLinkAbout1995 Resolution No. 040•
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RESOLUTION NO. 1/()
SEJUF.5 OF 1995
A RESOLUTION AMENDING AN AGREEMENT PROVIDING RECREATION SERVICES
OF THE ENGLEWOOD MUNICIPAL GOLF COURSE.
WHF.lU:AS, after n,view and recommendation by the Englewood Parka and ,..icreation
Commi•>1 on and after r•view of the extensive improvements made by PRO ::PUTT, INC. the
Englewood City Council believes it is in the be st inten,st of the City to amend the •Agreement
For Operation Of Miniature Golf Course And Go Kart Track • 1991.•
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD , COLORADO , AS FOLLOWS :
lil:l:limLl. The Englewood City Council hereby approves the attached amended •Agreement
For Operation Of Miniature Golf Coune And Go Kart Track-1995.•
~-The • Agreement For Operation Of Miniature Golf Course And Go Kart Tn,ck-
1995." attached hereto as "Exhibit A", is bereby accepted and approved by the Englewood City
Council. The Mayor of the City of Englewood is bereby authorized to approve the foregoing
Agreement and the City Clerk is authorized to attest the same.
ADOPTED AND APPROVED this 15th day of May, 1095 .
I, Loucrishia A. E \lis, City Clerk fo~,lhe City of Englewood, C~lorad ereby certify the
above is a true copy ot !u!solution No.112, Series of 1995. / /
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EXHIBIT A
AGREEMENT FOR OPERATJON OF
MJNJATJJRE GOLF COJIRSE AND GO KART TRACK -19911
THIS AGREEMENT io a contract that io binding upon the parties, who are the CITY OF
ENGLEWOOD (hereintlfter "City7 and PRO :: PUTT SYSTEMS, INC . (hereinafter
"Operator"].
IT IS THE INTENTIO N of the parties that there be o twenty-seven (27) hole miniature
golf course and Go Kart fa.--;)ity to be cons b11c:ted and operated in a beneficial and
aesthetically compatible DJan.1er upon a portion of the premises of the exiating Enelewood
Municipal Golf Course.
NOW, THEREFORE, in consideration of the covenants and agreements he rei n
co ntained and of the fee s and monies hereinafter set forth , the parties mutually agree and
contract as follows :
L Right tP Occupy and Operate
The City her-,by grants the exclusive righ t, license, and privilege to Operator to
construct, operate, maintain and provide amenities for a twenty-seven (27) hole
miniature golf course , Go Kart facility , boat ride facility , bike and trail rental
fa cility and clubhouse upon a parcel of land described in Exhibit A attached bereto,
a nd wluch is presently a part of the existing Englewood Municipal Golf Course. The
ClubboW1e and eighteen (1 8) holes shall be wheelchair accessible. Such construction,
ope ration, maintenance and provis ion of am ... niti es shall hereinafter be referred to
es "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
consen t of th e City Manai:er.
2.1 Conces:tico Sub ie ct to An2rovel
The Co nc ession and its operation, including construction, de si gn , signage,
maintenance, and provision of amenitie.<, as we ll as all activities set forth in the
foll owing paragraph, shall be suqject to the approval of the City, thr,ugh its
de signated representative, wh icli approva l may be gr,mt.ed or withheld in the City',
sole discretion for any reason when acting in good faith . The City must act promptly
in deciding to grant or withhold its app roval fo r any action of the Op erator affecting
the Co ncession .
The Operator must promptly provi de the City with any and all details of, or changes
in , or make avai lable upon request to the City a ny and al l details of, or changes in,
the foll owing: Go !{art equipment, construction de sign, location, landscaping,
scheduling, mate rials , standards , contractors, subcontractors, working personnel ,
nam e, operational de sign, layout, location, landscaping, hours an d days of
operation, materials, standards, s ignage, employees, employee dress, food and
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drink, sale i;oods, conceaaion items, all buaineaa accounts and boob, receipt totals,
and any and all busineu records reaaonably neceaaary to detarmine accurata, true
Md correct fee s due and owing to the City.
Operator shall keep and maintain detailed recorda of all sales of any kind whataver
and of all expenditures in the construction and operation of the conceaaion.
lf at any time, come or any portion of the construction or design of the conceuion or
its operation is unsatisfactory to the City in its sole discretion, then the City may order
and require that such conceHion and/or operation be altered and chaneed forthwith
in a fashion determined by the City in its sole satisfaction and at the Operator's sole
expense .
3. '.[um.
This Agreement shall be in effect t.hrough September 1, 2010, unless sooner
terminated pursuant to the terms ,-t 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 e,q,iration of the then current term of this Agreement that
renewal is terminated.
This . \greement is not and shall not be construed as a franchise, and the Ci ty and
Operator shall have the right to mutually and/or unilater ally cancel this Agreement
as set forth herein .
The operator shall compensate t.he City by monthly payments for the following it.ems:
A . Miniature Golf• beginning January 1, 1995 -1()% of the gross income from the gross
gate fee or of any other fee for admission for the minature golf concession .
Beginning January 1, 1996 -11 % of the gross income from the gross gate fee or of any
other fee for admission for the minature golf concessio n.
Beginning January 1, 1997 -12% of the gross income from the gross gate fee or of any
other fee for admission for the minature golf concession.
Begin ning January 1, 1998 -13% of the gross income from the gross gate fe e or of any
other fee for admission for th e minature golf concession.
Beginning January 1, 1999 • 14% of the gross inco me from the gross gate fee or of any
other fee fo r admission for the minature golf concession .
Beginning January 1, 2000 -15% of the gro ss income from the gross gate fee or of any
other fee for admission for the minature golf conc ession.
B . Go-Kart, Jr. Dragst.er and Boat Rental. be gin ning January I, 1995 -10% of the gross
income from the gross gate fee or of any other fee for admi ssion for the Go-Kart, Jr.
Dragster and Boat Ren tal com,ession .
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Beginning Janua,y l, 1996 -11-. of the groaa income from the groaa pte fee or of any
other fee for admiaaion for the Go-Kart, J r. Dniester and Boat Rental conceuion.
Beginning Janua,y 1, 1997 • 12-. of the gross income from the gross gate fee or of any
ot..'ler fee for admiaaion for the Go-Kart, J•. Draptar and Boat Rental eoncesaion.
Beginning Janua,y 1, 199& -13% of the gross income from the gross gate fee or of any
other fee for admission for the Go-Kart, Jr. Dragstar and Boat Rental conce1aion.
Beginning Janua,y 1, 1999 -14% of the groaa in1l<ime fn,m the r:r,oss pie fee or of any
other foe for admission for the Go-Kart, Jr. Dragstar ar,d Boat Rental conceuion.
Beginning January l, 2000 -15% of the gross income from the gross gate fee or of nny
other fee for admission for the Go-Kart, Jr. Dragst.cr and Boat Rentlll concesaion.
C. Mountain Bike and other Trail Rent.al -15% of the gross income for the term of the
Agreement..
D. Food and drink sales 10% o: the grosa income for the term of the Agreement..
All fees shall be due and payable within fifteen (15) days after the end of the prior
month. Reports with sufficient information and approval by the Director of
Financial Services shall be made for each month the concesaion is operated.
Failure to make timely payments aa required shall cause a finance charge to accrue
against. the Operator and for the City in an amount equal to one and one-half percent
(1.5%) of the unpaid balance per month.
Any such failure to make payment shall be considered a material breach of this
Agreement.
Parking shall inclui. those existing parking ,paces presently a vailable to the
Englewood Municipal Golf Course.
6. Citv Participation-
In addition to those matters set forth elsewher e herein, the City shall also pay the
charge for the wat.,r tap and the sewer tap. The water tap and sewer tap sha ll at all
times be the property of the City of Englewood, The City shall pay for the inst.allation
of a fire hydrant wit.bin one hundred (100) feet of the clubhouse. The City shall pay for
the installation of the water and sewer lines. The Operator shall be respoMible for
a ll service charges on water a nd sewer service.
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7. Utilities end Security
The Operator shall be resP"c.•il:;le for installation, provi sion and payment for all
utilities (except water and sewer to the e1tent they are con sidered and con mued to be
utilities as set forth previously herein). Security shall be the re1pon..,,,lity of the
Operator, who shall ensure that the public, and any trespaaser{1), shnll not o«11 py
and use the concesaion and its premises when it i1 not open for bu~men. 8.
Personnel and Maintenance.
The Operator shall be r esponsible for providing any and all personnel for operation
of the conceuion, and for proper maintenance thereof, subject to the City's approval
as set forth above.
The Oper ator shall be reasonable for maintaining that area two feet (21 outside
perimeter fence to the sole satisfaction of the City. The City shllll be responsible for
maintenance of remRining City property, including easements.
9. Safety of the Public
The Operator shall operate the con ce s s;o n so a s to keep the public and its users safe
from r easonably foreseeable hann. Any and all injuries or damage to the public
shall be reported to the City within on e h our thereof, or if same should occur after City
hours or on weekends, then by 8:30 am. the next working day.
10. Obeciience to All Laws end Pnvmen'.. of ell Charves
Ope rator shall obey and immodiately comply with any and all applicable local, state
and federal req uire ment !, ordinances, regulations, rules, law s and statutes.
Operator r,hall also comply with all ordinances , resolutions and rules of the City of
Englewo,,d.
Operat or shall pay all taxes, fees and charges imposed by others on it'• concession
op e ratior ..
lL &rfomnmce Bond
The Operator shall furnish to the City a performance bond in the amount of Ten
't'housand Dollars ($10,000) guaranteeing faithful perfonnance and payment of all
terms, covenants, and conditions h e rei n, as well as compliance with any and all
app li cable local, sU:tte and fed eral requirements, regulations, rules, laws and
statutes as well as in the event of con struction of improvements .
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12. lndemnificntion nod lnnurnnse
Before any construction or any activity related to construction ahaJI commence, the
amount of which wiJI exceed Ten Thousand DoJJara ($10,000) in whole or in part, or
any activity related to construction, L~e Operator shall provide a payment and
performance bond to insure payment of all obligations incurred u a result of said
construction or activity. The performance bond shall be in a form approved by the
Cit;.
The Operator shall before any construction ber,ins procure and maintain in fuJI force
and efftet at it"s sole expense a public liobility insurance policy naminJ the City as
;,_ ,.dditional named insured. This policy shall remain in full force and effect
, ·,n ~\nuously durin1; this and any successive term of thl• Agreement, and it shall
in:lude comprehensive liability coverage as follow,: $1,000,000 for il\iwy or denth of
any one or more persons; $1 million for injU.;y or death occurring u a result 0£ any
one accident; $1,000,000 for property damaga; $1,000,000 for product liability.
A cert'ficate evidencing s.-ud insurs.tce policy shall be kept on file at all times with
the City and it shaJI contain a provision that it may not be altered, amended or
ca.,celed without first giving written notice to the City thirty (30) or more <bys prior
thereto. Such poliC) or poJ;,~es shall contain no right of subrogation against the City.
The Operator hereby indemnifies the City from any and all claims against it arising
from any activities pursuant to this Agreement. The City owns and operates a
municipal golf course nearby &nd each party is responsible for its own operations.
The Operator agrees to carry adequate lost business, general business, fire , theft,
personal injury and property damage insurance covering all aspects of the
concession oi,eration in an amount and with a company to be approved by the City
Director of Financial Services.
All policy or policies shall contain no right of subrogation against the City.
13. lnsoectioo of Prem;srs .
The City shall have the right to examine and inspect the premises, including, on
reasonable notice, private office areas.
14. No Assignment or Subletting
The Operator, may not sell, assign, mortgage\ sublet or otherwise convey, rulease or
pass on any part of its interest in the concession without the prior permission of the
City, whlch has a right of first refusal as set forth below. The Operator, may not
suffer or cause a lien to be filed against the conce ssion or any part thereof.
Tbe Operator shall be responsible and liable to the City for any and al l fe es and
payments to the City, as well•• any and all other terms nod conditions ofthls
Agreement.
Such assignment to the Bank/SBA is conditioned upon the City having a right of first
refusal to approve successor Operator appointed by the Ban k/S BA. !fthe City,refuses
a proposed successor operator oth<?r than for cause, City wiU cash out the loan .
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15. Motedal Breach
The parties agree that the happening of any of the following event'. shall constitute a
material breach of this Agreement and City may, al 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 •'1e terms
of this Agreement.
b. Operator shall fail to pay the City the fees provided in Paragraphs 4 or C,
whichever is applicable, within thirty (30) days of date when they are due.
c. Operator shall deny the City the right to inspect the concession at re....,nable times
upon notice .
d . Any usignm~nt or tran sfer of any interest of Operator without the City's
!Jpproval.
e. Operator shall be bankrupt as defined by the laws of the United States, of America,
become insolvent, or a recei ver, whether permanent c:-temporary, for all or
substantially all of the Operator's prope rty shall be appointed by any Court, or
Operator shall make a general assignment for the benefit of it's creditors, or a
voluntary or involuntary petWon under any bankruptcy law shall be filed with
respect to Operator.
f. Operator shall fail to keep in effect insurance as provided baein.
16. Rleht of fir'il Befii:,ol.
In the event that the City gives its permission to the Opera'.or to sell the concession, the
City may exercis e a first right of refusal as follow•: Ope·;ator must present a bona
fide offer of sale-purchase to the City. The City may tl'.en match or exceed the sale-
purchase price and purchase the concession .
17. Effect of Termination hv City
Upon termination of this Agreement by the City upon a material breach , the City shall
have the option for thirty (30) days following such termination to purchase Operator's
leasehold improvements, fixtures, s;gns, equipment and other pro"'3rty 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 seloctea 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 the property.
If the City refuses to purchase the improvements then the Operator shall have thirty
(30) days to r emove the~tures and equipment. The City may withhold sufficient
fixtures and property in order to pa:, all monies due to the City under this Agreement.
Any sum to be paid shall be offset by any paym ent to third parties.
18. Trade Name
The trade name of RIVERSIDE MINlATURE GOLF CLUB shall remain ot all times
the property of Operator unless purchased by City .
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19. '.l'.m-lina1ioo hx Ooea.d.GL
Th ,s Apreemenl may be terminated by Operator upon sixty (60) days' written notice
to the City. Operator ohall, at. it's option, have the riaht to remove all buildini,,,
ft..m iture, fir.urea, signs, equipment and other property and leasehold impro'lements
within 1ru.:rt:,· i~O) days of notice of termination delivered to tho City other than those
improw,men t, si:pplied by City, which are water and sewer tap and fire hydrant.
20. l2dixm Hoon Tenninotion -
Subje<t to the terms of th.is Agreement, Operator shall deliver the concession and
premises , the City at termination of this Agreement in as good condition and state of
repair as when received, excep t for crdinary wear and tev or loss or damage caused
by ac t of God.
21 .Elm:L Maillil£,
Performance of this Agreement shall be ex cused if rendered impossible by act of God .
22. Attomex Fees
Any breach or failure to pe/ any fee required hereby shall entitle tne successful party,
who was required tn collect a fee sum or charge or enforce this Agreement, reasonable
attorneys fees and costs of collection.
SO AGREED.
CITY OF ENGLEWOOD
By : _____________ _ ATTEST :
Thomas J . Burns, Mayor
Loucrishia A. Ellis, City Clerk
Date : _________ _
PRO :: PU'IT, INC .
By: ____________ _
Scott L Simpson, President
By:--------------
Debrr. L Simpson , i>,cretary/l'reasurcr
Date: ________ _
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COUNCIL COMMUNICATION
Date
May 15 , 1995
Initiated By
I Agenda Item
10 a vi I Subject
Amend Agreements with
Pro ::Putt Systems, In c .
Recreat io n Service s Department I Staff Source
Jerrell Black, Direction of Recreation
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COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
Ordinance # 30 , Series of 1994 -Lease Clubhouse Building
Resolut ion # 49 , Series of 1992 -An.end Existing Agreement (Fee s)
Resolut ion # 67 . Series of 1990 -Amer.d Ex isting Agreement to Include Go Karts
Resolut ion # 1. Ser ies of 1988 -Agreement with Pro::Putt Systems , lnc .(Rive rs ide l
for M iniature Golf Operation
RECOMMENDED ACTION
Recommendat ion from the Re cre at ion Services Department to amend the
ag re c:nents Pro ::Putt Systems , Inc .
a. mendation for the adoption of a resolution amending the
agreement with Pro ::Putt Systems , lnc.(Riverside M iniature Golf Go /Karts)
b . Recommendation for the adoption of a bill for a ordinance amending th e
clu bhouse lease agre e .mt with Pro ::Putt Systems , lnc .(Ri verside
M iniature Golf Go /Karts )
BACKGROUND. ANALYSIS , AND ALTERNATIVES IDENTIFIED
Pro::Putt Systems , lnc.(Riversid e) began a miniature golf operation in 19B8. The
City of Englewood leases t he property to Riverside and River side pays a percentage
of gros~ sales to the City of Englewood . In 1990 Riverside added the Go /Kart
facility . Riv erside has been a very successful public /private partnership. The facility
pr ovi des a safe and secure environment for family entertainment .
River side is seeki ng to remain competitive in the market place by expanding the ir
operations and extending the existing agreements .
Major Ad ju stm ents to Agree ments include:
• Ex te nding existing agreements to the year 2010
• Add Bicycle ren tal s
• Add Miniature Dr ag Strip with Jr. Dragsters
• Add Bumpe r Boats
• Current perce ntage due the City is 10 % of Gross Sales . This amount will
increas e to 11 % beginn ing in 1996 and will increase 1 % each year until it
reaches 15%. Th ereaher, the perc entage will remained fixed at 15 % for the
remaining term of the agreements .
Issues related to noise level and safety have been discussed and resolved to the
satisfaction of staff.
The Parks and Recreation Commission voted unanimously to approve the expansion
plans. Staff concurs with that recommendation .
ANANCIAL IMPACT
History of Revenues from Riverside :
1988 $ 4,403
1989 $15,205
1990 $1 3,1 51
1991 $34,329
1992 $20,532 •
1993 $13,387
1994 $14,616
Additional Pcoiected Revenues from Exoansioo ·
Bike Renta l $ 375 aP~ually @ 15% of Gross Sales
Drag Strip $5 ,500 annually @ 11 % of Gross Sales
Bumper Boats il..J.QQ annually @ 11 % of Gross Sales
Total Revenues = $9 ,175 annually ..
Note: • Percentage due the City was adjust ed from 15 % to 10%
.. Revenues from Drag Strip and Bumper Boats Sales w ill
increase each year by 1 % until they reach 1 5 % .
LIST OF ATTACHMENTS
Resolution -Agreement
Ord inance -Bu i'.ding Renta l
Memorandum -Parks and Recreation Commission
Riverside Pro posal
TJ B
CCRiver
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