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HomeMy WebLinkAbout1992 Resolution No. 049RESOLUTION NO . fi SERIES OF 1992 A RESOLUTION AMENDING AN AGREEMENT PROVIDING RECREATION SERVICES OF THE ENGLEWOOD MUNICIPAL GOLF COURSE. WHEREAS, aft.er review and recommendation by the Englewood Parks and Recreation Commission and after review of the extensive improvements made by PRO:: PUTT, INC . the Englewood City Council believes it is in the best interest of the City to amend the "Agreement for Operation of Miniature Golf Course And Go Kart Track • 1991;" NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS : ~-The City Council h,mby approves the attached amended "Agreement For Operation Of Mi niature Golf Course And Go Kart Track - 1991." Sectjon 2 The Mayor of the City of Englewood is hereby authorized to approve the foregoing Agreement and the City Clerk is authorized to attest the same. ADOPTED AND APPROVED this 6th day of April, 1992. Cyde E. Wiggis~ayor ATTEST: ~✓#~ P a tricia H . Crow , City Clerk I , Patricia H . Crow, City Clerk for th e City of Englewoo d , Co lorado , here by certify the above is a true copy of Reso lution No . .tf.1., Series of 1992 . ~~ Patricia H. Crow AGREEMENT FOR OPERATION OF MINIATURE GOLF CQJJRSE AND GO KART TRACK -J99J T HIS AGREEMENT is o contract that is binding upon the partie1, who are the CITY OF E t'I GLEWOOD [h ereinafter "C ity") and PRO:: PUT!' SYSTEMS , INC . [h er einafter "Oper ator"). IT IS THE INTENTION of the partiet that there be a forty-five (45) hole miniature golf cou r ■e and Go Kart facility to be co nstructed and operated in a beneficial and aesthetically compatible manner upon a portion of the preml ■ee of I.he uiating En1lewood Municipal Golf Course. NOW, THEREFORE, in con 1ideration of the covenants and qreements herein contained and of the fu s and monie ■ hereinafter set forth, I.he partle1 mutua lly qreo and con tract as follows : t . Divbt tn Ocsuox and Ooerate The City hereby grants the uclmive ri&ht. license, 1111d prlvilep to Operator to con1truct, operate, maintain and provide amenitiea tor a forth-five (411) hole miniature golf coune, Go Kart facility and cluhhot.Se upon a parcel of land described in Exhibit A attached hereto, and wbi'.:h ia presently a pert oftbe exi 1tln1 Englewood Muni cipal Golf Course. The ClubhoUJe and eigliteen (18) hole ■ ■hall be wheelchair accessible. Such con struction, operat ion, maintenance and provision of amenities shall h ereinafter be referred to as "Concession ." ~ ) I Thi.Ci ty shall at all limes retain and maintain its own ersh ip of the r eal p roperty so occupi ed. No oth er acti vity m oy be co nducted pursuant to this Agreement 10.,hout the written co nse nt of th e City Ma nager . 2. Co nc ess ion Suhi ect to Aril2!St'ffl.l The Concessi on l'n<l its operatio n , incl uding con struction, design, s ign nge , main tenance, and pr o·/Jion of a menities, as well a s all activi ti es set fo rth in th e follow ing paragraph , sha!1 be s ubj ect to t he approval of th e City, through its designote d r epresentative, wh ich approval may be granted or wi thheld in th e City'• sole di sc retion fo r any reaso n wh en acting in good faith. Th e City must act pro m ptl y in decidin g to gran t or withh old its approval fo r an y acti on of th e Op er ator affectin g the Concession. The Op erator must promptly pro,-id e the City with a ny ar.d nil det a ils or, or changes in, or make avail abl e up on r equest to th e City any and all detail s or, or changes in , l he fo ll owi ng: Go Karl equ ipm ent, con stru ctio n de!='ign , location , londscn pi ng , sch ed u ling , material s, stondnrds , co ntractors , s u bco ntr act or s, working pe rson ne l, nom c , operationa l d esign , layo ut, loc atio n , lan dsca pin g, h ou r s end days of opernti on , mate ri a ls, slnn d ords, s ignage, emp loyees , empl oy ee dr es s, foo d and d rin k, sale goo ds, concess ion items , a ll bu siness ac counts a nd book s, receipt t otals, and any and all business records reasonably necessary to determine accu rate, true and correct fees due end owing to the City. Operator shall keep and ma intain detailed record, of all soles of any kind whatever and of oil expendi tures in the con struction and operation of the conce ssion . If at any time, come or any portion of the construction or design of the conce ssion or its operation ia unsatisfactory to the City in its sole diacretion, then the City may order and require that such concession and/or operation be altered end changed forthwith in a fa shion determined by the City in ita sole 1atisfaction and at t,he Operator's sole expense. 3. Torm. This Agreement shall be in effect until September 1, 2000, unles1 sooner terminated pursuant to the terms set forth herein ; and the Operator shall have the exclu sive right to renew for successive, additional one ( 1) year term ■. Renewal ■hall be automatic unleu either party giv11 written notice no leu than oixty (60) day, prior lo the expiration of the then current term of this Agreement that re newal i ■ terminated. This Agreement i1 not and shall not be construed 81 a franchiae , and the City and Operator ,hall have the right to mutually and/or unilaterally cancel this Acreement 81 set forth herein. For operati on of miniature golf the Operator ahall a,mpenaat.e the City by monthly payments equivaleri to ten percent (10%) January 1, 1992 thru 1995 of the IIJOl8 gate fee, and/or of anJ !her fee for admiuion to the miniature golf concessi on or any part thereof, and ten percent (10%) of the grou income from sale, and any other concession activity excluding Go Kart rental that includes the payment of sums for any reason whatever, including for food , drink and sale goods . For operation of Go Karla the operator shall compenaate the City by monthly payments equivalent to ten percent (10%)January 1, 1992 thru 1995 of the gross Go Kart rental less co st of insurance for Go Kart rental. In "1994 the parties in good faith shall renegotiate the fees set forth in this Paragraph. If the parties fail to otherwise agree on a n ew rate for the Co ntract, the rate shall be twenty percent (20%). All fees shall be due a nd poyeble within fifl.een (1 5) deys aft.er the end of the prior month. Rep orts wi th sufficient information and approval by the Director of Financial Scn•ice s shall be made for each month the concession i s op erot..ed. Failur e lo make ti mely pay ments as re quired shall cau se a fin ance charge l o acc rue ogoi n st th e Ope ra tor and for the City in on amount equal to on e end one-h alf perc ent (1.5%) of th e u np ai d ba lan ce per mo nth . Pursuant to Parngroph 5. Pe rkin g, fees sh ell be r ed uced until pnrki ng is paid pe r this Agreemen t . Any such fai lu re lo mak e paym ent sh all be co nsi der ed n materinl b reac h of this Agr ee ment. -2- Parking shall include those existing parking s paces pre se ntly available lo tho Englewoo tl Municipal Golf Course. 6. ~~- In oddit.ion lo those matters set forth el se where herein, the City shall also pay the charge for the wntor tap aod the sewer tap. The water tap and sewer tap shall at all t bes be th e property of the City of Englewood, The City shall pay for the install at.ion of a fire hydrnnt within one hundred ('.OO)fe1t of the clubhouse . The City shall pay for the installation of th e water and sewe., Jines. 'i'he Operator shall be responsi ble for all se rvic e charges on water and sew,Jr service . 7. Uti1ititt and Btsurity. The Op erator shall be r esponsible for installation, provision and payment for all utilities (except water and sewer lo the extent they are considered and construed to be utilitlH a, set forth previoualy herein). Security ahall be the ruponaibility of the Operator, who shall ensure that the public, and any trespaaser(s), ahall not occupy and use the concession and it.a premises when it i1 not open for busineeL 8. Personnel and Maintenance . The Operator shall be reaponaible for providing any and all personnel for operation of the conceBSion, and for proper maintenance thereof, subject to the City's approval as 1et forth above . The Operator shall be reasonablo for maintaining that area two feet (2 ') outside perimeter fence to the sole satisfaction of the City. The City shall be n,sponsible for maintenance of remaining City property, including easements. 9. Snfety of tb• Pub]j, The Operator shal! operli\e the concession so aa to keep the public and ila users safe from reasonably fo ·,eseeable harm. Any and oil injuries or damage to the public shall be reported to the City wlthin OM hour thereof, or if so me should occur alter City hours or on weekend s, then by 8:30 a.m. the next working day . 10. Obedience to All Laws and Pnvmeot of a11 Choma Operator shall r,bey and immediately comply with any and all applicable loc al, state an d fede ral 1'equir ements, ordinances, regulations, rul es, lows and statutes. Operntor sh all also co mpl y with all ordinances, resolutions nn d rules of the City of Englewood . Operator sh oil pny oil taxes, fees and charges imposed by ot hers on it's concess ion op eration . -3 - 11 . Petformonce Bond The Operator ehall furnish to tho City a ?Crformance bond in the amount of Ten Thoueand Dollan ($10,000) guaranteeing faithful performance and payment of all t erms, covenantl, a.nd condition• herein, ae well ns compliance with any and all applicable local, state an d federal requirement•, regulations, rules, law• and statute, a, well as in the event of construction of improvements. 12 . lndemniOcaHon nod lnnurooce Before nny construction or nny activity related to construction shall commence, the amount of wh ich will exceed Ten Thousand Dollars ($10,000) in whole or in part, or any activity related to construction , the Operator shall provide a payment and performance bond to in sure payment of all obligations incurred as a result of said construction or activity . 'llhe performance bond shall be in a form approved by the City. The Operator ,hall before any construction begin s procure and maintain in full force and effect at it'• sole expenee a public liability ineurance policy naming tha City as an additional named ineured. This policy ehall remain in full force and effect continuously uuring this and any successive term of thia Agreement, and it shall Include compreheneive liability coverage as followe: $1,000,000 for injury or death of any one or more persona ; $1 million for injury or death occurring aa a result of any one accident; $1,000 ,000 for property damage; $1,000,000 for product liability. A eertificat.e evi dencing eaid insurance policy ahall be kept on fila at all times with the City and it shall contain a provision that it may not be altered, amended or caneeled without nnt giving written notice to the City thirty (30) or more d~• prior thereto. Such poli cy or polici es shall contain no right of subrogation ogainat the City. The Operator hereby indemnifiea the City from any and all claims againat it arising from a ny activities pu rsuant lo this Agr ee ment. The City owns and operates a municipal golf course nearby and each par ty is respon sible for its own operations. The Op erator agree s to carry adequate Jo st business, general bus in ess, fire , thefl.1 personal injury and property damage insura nce covering a11 aspects of the con ce ssion op eration in an amount and wi th n company to be approved by the Ci ty Di r ector of Financial S ervic es. All poli cy or po li cies sh all co n tain no ri ght of su b rogation agai n st th e City. 13. lns oes:ti on of Premi ses. The City sh all have the r igh t to exa mi ne and inspect th e pre mises, in cl uding, on r euso nnble notice, private offi ce ar eas . 14 . No Asc.ign meot or Suble tting The Operator, may n ot. se ll , assign, mo rtgage , sublet or otherwise convey , re lease or po ss on nny port of its interest in th e concession without th e prior written pe r mission of the City, which has a right of fir st refu sal as set forth be low . Th e Operelor , may not suffe r or ca u se n li en lo be fil ed ngainst the co ncession or nny port th ereof. .4. The Operator shall be respon aible and liable la the City for any and all fees and payments la the City, as well as any and all other tenns and cond iti ons of t his Agreement. It is understood and acknowledged that the Operator haa obteined financine from National Bank or Arapahoe/Parker in the fonn or an SBA guaranteed loan in an amount not la exceed $150 ,000. It is agreed that thi1 Agreement, together with equi pmen t and impro ve ments being con structed by the Operator, is a ssignable to a Noti onal Bonk as collateral for a loan or line of credit, aaid loan or line of credit not to r,ceed the sum of $250,000.00 . Suoh aas ignment la the Bank/SBA is conditioned u po n tho City having a rieht of firat refusal to approve suece aaor Operator appointed by the Bank/SBA. Ir the Cit,y refuse s a proposed successor operator other than for cause, City will cash out the loan . 15 . Matedo1 Rreoeb The partiee agree that the happening of any of the follow ing events shall con stitute a material breach of thi1 Agreement and City may, at its election, tenninate the Agreement upon the happening of any of the followine event■: a . Operator shall fail to maintain and operate the concession according to the tenn1 of thi1 Agreemen l b . Operator shall fail to pay the City the feea provided in Paragraph■ 4 or 5, whichever i1 opplicable, within thirty (30) day■ of data when I.hey are due. c . Operator shall deny the City the right to inapect the conceu ion at reasonable times upon notice. d . Any assignment or transfer of a ny in te rest of Opera tor without the City's a pproval. e . Opera tor shall be ba nkrupt as define d by the laws of the United Slates, of Am erica , become insolv ent, or a rece ive r, wh eth er permanent or temporary , fo r all or substant ially all or the Operator's property shall be appo inted by a ny Court, or Op erato r sh all make a general assignm ent for the benefit of it's creditors, or a voluntary or involuntary petition und er any bankruptcy law sha ll be filed with res ptoet to Ope r ato r. f. Op era tor sh a ll fai l to k ee p in effect insurance os provid ed h erei n. 16. Right of Fir st Refusa l. In the eve nt that lhe City gi ves its perm ission to th e Op erato r to sell the co ncession, lhe Ci ty mny ex ercise a fi rsl right of re fusal as foll ows: Ope rato r mu sl pr ese nt n bon n fide offer of so le-purchase to the City. The City moy lhe n molch or exceed th e so lo • purchnse pric e and pur chase the conce ssio n . • 5- 17 . Effect pf TerminaliPn by City. Upon termination of this Agreement by the City upon a material breach , the City shall have the option for thirty (30) day, followinr 1uch termination to purchase Operator'• leasehold improvements, fi1ture1, 1irn1, equipment and other property for a sum equal to the fair market value leu all monie ■ due to the City under this Agreement. Fair market value shall be determined by two appraisers, one appraiser selected by the City and on e appraiser selec!A!d by the Operator. If these two appraisers fail to agree on fair market value, then the two appraisers shall se lect n third appraiser who determine fair market value of the property. Irt.he City refuses to purchase the improvements then the Operator shall have thirty (30) days to remove the filtures and equipment. The City may withhold sufficient fi1tures 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. 18 . Trade Name The trade nam e of RIVERSIDE MINIATURE GOLF CLUB shall rem ai n at all times the property of Operator unl ess purchase d by City. 19. TerminatiPP hx OoerolPr This Agreement may be termina!A!d by Operator upon silly (60) day6' written notice to the City Operator ■hall, at it's option, have the right to re,no vo all buildinp, furniture, fixture£, signs, equipment and other »roperty and leasehold improvements within thirty (30) days or notice of termination dt ivered to the City other than thoae im provements supplied by City, which are water and sewer ui and fire hyd ant. 20. Delivery Uooo Terminati on . Subject to the terms of this Agreement, Operator shall deliver the concession snd premises to the City at termination of this Agreement in as r:ood condition and state of repair es when rec eiv ed, exce pt for ordinary wear and tear t.i" lo ss or damage caused by net or God . 21 . FPrce Maiuere - Performa,1ee of this Agr ee ment shall be excused if rendered im po ssible by net or God . -6- 22 . Attorney Fees Any breach or failure to pay any fee required hereby al.nil entitle th e succ es,ful party, who wo1 required to collect a fee sum or charge or e,,rorce this Agreement, reasonable attorneys fee a and co sts of collection . SO AGREED. CITY OF ENGLEWOOD By: Clyde E. Wi ggi ns, Mayor ATTEST: Patricia ff. Crow, City Clerk Date : PRO :: PUTT, INC . By : Scott I. Simpson, President By: James C. Herdener, Secretarytrreasure r Date : -7- COUNCIL COMMUNICAnON Date Agenda Item 11 b Subject Amendment to April 6 , 1992 INITIATED BY Recreation Depar1ment Riverside Miniature Golf/Go Kart Agreement STAFF SOURCE Jerrell Black, Director of Recreation Services JS~OE/ AcnON PROPOSED Recommendation from the Recreation Department to approve by motion an amendment to the Agreement/Contract between the City of Englewood and Pro Putt A systems, lnc . (Riverside Mlntature Golf/Go Kart). The percentage of Gross Revenues -due the City would b e changed from 20% to 10% through 1995 . PREVIOUS COUNCIL AcnON 19 88 - 1990 - 1991 · Initial agreement with Pro Putt, lnc . was to provide a 5 4 -hole Miniature Golf facility. Tenn of contract was for seven years. Change In contract to Inclu de a Go Kart fa cility and r educe the n umb er of golf h oles to 45 . Term of con trac t was for ten years. Co uncil study ses sion to review thJs proposal . STAFF ANALYSIS Thls will r educe r eve nues to the City In the s hort term. However. Rl , ~rsld e will b e greatl y Increasin g marketing efforts . I believe that the m arketin g efforts will h elp to provide a m or e co nsistent and substantial financial base for tl1 e long t e,m . BACKGROUND Ri\·e rslde h as been aggressiv e In their undertakings witl1 tl1e go lfing /go kart -oper a ti ons . They contlr•1e to explore n ew s tra t egies for a more stable rev enue s tream. They provlde a clean and attractive facility . They are community oriented A anr1 provlJe .an atmosphere that Is conducive to family entertainment . W FINANC IAJ, Revenues r eceive d by the City: 1991 1990 1989 1988 832 ,219 813,186 $15,205 87,081 The current agreement requtres 20% of the gross gate fee due the City annually. The agreement also allowed for only 15% of the gross gate fee to be paid t ,;, the City until Riverside repaid the cost oflnltial parlo.ug lot repairs. Thls cost was S12,700 and was paid off In 1991 .