HomeMy WebLinkAbout1990 Resolution No. 067l
RESOLUTIW NO. ll
SERIES CF 1990
A RESOLUTIOO l\MENDING AN AGREEMEm PROVIDING i'IEX:RFATlOO SEkVICES CF 'lllE
~ IIIJNICIPAL OOLF CXXJRSE.
WHEREAS, the City desires to add to the miniature g:,lf course ooncessioo
a Go Kart concession at its Englel«JOd Municipal Golf Course oooplex; and
WHEREAS, the City shall at all t.i.rres retain o.,mership of the real
prq,erty upon which the concession is operated.
N™, THEREFCm:, BE rr RESOLVED BY THE CITY CXXJOCIL CF 'lllE CrrY CF
EN2EHXXl, COLCIIADO, AS FOLLO,S:
section-1. 'l'1e City agrees to anend the Miniature Golf Course Contract
approiieaJiiiiuary 19, 1988 and hereby approves the attached "l\greerent For
(l:,eration Of Miniature Golf Course And Go Kart Track. 11
section-2. '!he Mayor of the City of Englel«JOd is hereby authorized to
approiietlieTciregoing Agreement and the City Clerk is authorized to attest the
sane.
ADCFI"ED AND APPROVID this 4th day of Septembe.r, 1990.
Attest:
~~-~-{LJ
Patricia H. Cra.,, City Clerk
I, Patricia H. Cra.,, City Clerk for the City of Englel«JOd, Colorado,
hereby certify the above is a true <XJfJ"i of Resolution No. 6J, Series of 1990.
~a,d!/1.,wr Patric a H. Crow
C
AGiEEijEST.FOR-OPElllTIOS.OF
ijlSIATURE-GOLF -COUiSE-AND .GO .¥~iT .TllCK
THIS AGREEMENT is a contract that is binding upon the
parties, who are the CITY OF ENGLEWOOD [here inafter "City"] and
PRO:: PUTT SYSTEMS' INC. [hereinafter "Operator"].
IT IS THE INTE~TION of the parties that there be a
forty-five (45) hole miniature golf course and Go Kart fa c ility
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 the covenants and
agreements herein contained and of the fees and monies
hereinafter set forth, the parties mutually agree and contract as
follows:
l. Rigbt-to-Occupy.and_Operate.
The City hereby grants the exclusive right, license, and
privilege to Operator to construct, operate, maintain and provide
amenities for a forty-five (45) hole miniature golf course, Go
Kart facility and clubhouse upon a parcel of land described in
Exhibit A attached hereto, and which is presently a part of the
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 -Approval.
The concession and its operation, including construction
design, signage, maintenance, and provision of amenities, as well
as all activities set forth in the following par, ;.-aph, shall be
subject to the approv,,l 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 it~
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 ~art equipment, construction design, location, landscaping,
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scheduling, materials, standards, contractors, subcontractors,
working personnel, nan .e, operational design, layout, location,
landscaping, hours and days of operation, 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, some 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. '.!:!!!!!·
This agreement shall be in e f.fect for ten (10) years after
execution on, unless sooner terminated pursuant to the terms set.
forth herein; and the Operator shall have the exclusive right to
renew for successive, additional one (1) 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.
For operation of min i ature golf t he Operator shall
compensate the City by monthly payments equivalent to twenty
percent (2oi) of the gross gate fee, and/or of any other fee for
admission to the miniature golf concess i on or any part thereof,
and ten percent (lOi) of the gross income from sales and any
other concession activity excluding Go !<art rental that includes
the payment of sums for any reason whatever, including for food,
drink and sale goods. For operation of Go Karts the operator
shall compensate the City by monthly payments equivalent to
twenty percent (20~) of the gross Gt Kart rental less cost of
insurance for Go Kart rental.
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All fees shall be due and payable within fifteen (15) days
after the end of th e prior month, Reports with sufficient
information and approval by the Director of Finance shall b• ma de
for each month the concession is operated.
Failure to make timely payments as required shall cause a
fin&nce 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.
Pursuant to Paragraph 5. Parking, fees shall be reduced
until parking is paid per this agreement.
Any such f : '.lure to make payment shall be considered a
material breach vf this agreement.
5. Parking.
Parking s hall include those existing parking spaces
presently avail•ble to the Englewood Munic i pal Golf Course .
The park i ng lot will cost Twel ve Thousand Seven Hundred
Dollars ($12,700). Until this amount has been paid, Operator
shall pay t he City fifteen percent (15 \), rather than twenty
percent (20\), of the gross gate fee. The remaining five percent
r--(5\) will be cre dited to the $12,700 paid by Operator for
construction of the parking lot. In the event this agreement is
terminated by either party , the City will p ay Operator any
balance remaining on t he cost of the · construction of the parking
lot .
6, City.Participation .
In addition to those matters s et forth elsewhere herein, the
City shall also pay the char ge for th e water tap and the sewer
tap. The water tap and sewer tap shall at all times be the
property of the City of Englewood. The City shall pay for the
installation of a fire hydrant within one hundred (100) feet of
the clubhouse. The City shall pay for the installation of the
water and sewer line. The Operator shall be responsible for all
service charges on water and sewer service.
7. Utilit i es .and .Security.
The Operator shall be responsible for i nstallation,
provision and payment for all utilities (except water and sewer
to the extent they are considered and construed to be utilities
as set forth previously he r ein). Secur i ty shall be the
responsibility of the Operator, who shall ensure that the public,
and any trespasser(s), s hall not occupy and use the concession
and its premises when it is not open for business.
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B. Persoccel .acd.Maictecacce.
The Operator shall be responsible for providing any and al.
personnel for operation of the concession, and for proper
maintenance thereof, subject to the City's approval as set forth
above.
The Operator shall be responsible for maintaining that area
two feet (2') outside perimeter fence to the sole satisfaction of
the City. The City shall be responsible for maintenance of
remaining City property, including ease~ents.
9. Safety.of.tbe .Public.
The Operator shall operate the concession so as to keep the
public and its users safe from reasonably foreseeable harm. Any
and all injuries or damage to the public shall be reported to the
City within one hour thereof, or if same should occur after City
hours or on weekends, then by 8:30 a.m. the next working day.
10. Opening.
The additional 9 holes for the miniature golf course and the
Go Kart track in their entirety shall be open and operational to
the sole satisfaction of the City no later than July l, 1991,
unless Operator is delayed by any act or neglect of the City,
fire, adverse weather conditions not reasonably anticipated and
any causes beyond Operator's control.
11. Ob2diecce.to .All .Laws.and.Payment .of.all .Charges.
Operator shall obey and immediately comply with any and all
applicable local, state and federal requirements, ordin~nces,
regulations, rules, laws and statutes. Operator shall also
comply with all ordinances, resolutions and rules of the City of
Englewood.
Operator shall pay all taxes, fees and charges imposed by
others on it's concession operation.
12. Performance.Bond.
The Operator shall furnish to the City a performance bond in
the amount of ten thousand dollars ($10,000) guaranteeing
faithful performance and payment of all terms, covenants, and
conditions herein, as well as compliance with any and all
applicable local, state and federal requirements, regulations,
rules, laws and statutes as well as in the event of construction
of improvements.
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13. Indemnification .and .Insurance.
Before any construction or any activity related to
construction shall commence, the amount of which will exceed ten
thousand ($10,000) dollars in whole or in part, or any activity
related to construction, the Operator shall provide a payment and
performance bond to insure payment of all obligations incurred as
a result of said construction or activity. The performance bond
shall be in a form approved by the City.
The Operator shall before any construction begins procure
and maintain in full force and ef t ect at it's sole expense a
public liability insurance policy naming the City as an
additional named insured. This policy shall remain in full force
and effect continuously 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 of any one or
more persons; $1 million for injury or death occurring as a
result of any one accident; $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 times with the City and it shall contain a
provision that it may not be altered, amended or canceled without
first giving written notice to the City thirty (30) or more days
prior thereto. Such policy or policies 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 and 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 operation in an
amount and with a company to be approved by the City Director of
Finance.
All policy or policies shall contain no right of subrogation
against the City.
14. Inspection .of .Fremises.
The City shall have the right to examine and inspect the
premises, including, on reasonable notice, private office areas.
15. ~o .Assignment .or .Subletting.
The Operator, may not sell, assign, mortgage, sublet or
otherwise convey, release or pass on any part of its interest in
the concession without the prior permission of the City, which
has a right of first refusal as· set forth below. The Qperator,
may not suffer or cause a lien to be filed against the concession
or any part thereof.
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The operator shall be responsible ~nd liable to the City for
any and all fees and payments to the Ci ~y, a ■ well as any and all
other terms and condit i ons of this agreement.
It is understood and acknowledged that the Operator has
obtained financing from National Bank of Arapahoe/Parker in the
form of an SBA guaranteed loan in an amount not to exceed
$150,000. It is agreed that this agreement, together with
equipment and improvements being constructed by the Operator, 1•
as1ignable to a National Bank as collateral for a loan or line of
credit.
Such assignment to the Bank/SBA is conditioned upon the City
having a right of first refusal to approve successor Operator
appointed by the Bank/SBA. If the City refuses a proposed
successor operator other than for cause, City will cash out the
loan.
16. Material .Brcacb .
The parties agree that the happening of any of the following
events shall constitute a material breach of th i s 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 t h e
concession according to the terms of this agreement,
b , Operator shall fail to 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 i nspect the
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 laws of the
United States of America, become insolvent, or a receiver,
whether permanent or temporary, for all or substantiall ~ all of
Operator's property shall be appointed by any Court , or Operator
shall make a general assignment f o r the benefit of i t's
creditors, or a voluntary or involuntary petit i on under any
bankruptcy law shall be filed with respect to Operator,
f. Operator shall fail to keep in effect insurance as
provided herein.
17, Rigbt .of.First .Refusal.
In the event that the City .gives its permission to the
Operator to sell -the concession, the City may exercise a first
right of refusal as follows : Operator must pre1ent a bona fide
offer of •ale-purchase to the City. The Cit)' may then match or
exceed the sale-purchase pri ce and purchase the conce s sion.
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18. Effect.of.Termiaatioa.By .City. Upon termination of
this a~reement by the City upon a material breach, the City shall
have the option for thirty (30) days .ollowing such termination
to purchase Operator'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 ■hall
determine fair market value of the property.
If the City refuaes to purchase the improvements then the
Operator shall have thirty (30) days to remove the fixtures and
equipment. The City may wit 1hold sufficient fixtu res and
property in order to pay all monieY due to the City under this
Agreement. Any sum to be paid shall be offset by any payment to
third parties.
19. Trade .Hame.
The trade name of RIVERSIDE MINIATURE GOLF CLUB shall remain
at all times the property of Operator unless purchased by City.
20. Termiaatioa.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.
21. Delivery.Uooa.Termicatioc.
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.
22. Force.Majuere.
Performance of this agreement shall be excused if rendered
impossible by act of God.
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23. lttor0ey .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 cost• of collection.
SO AGREED.
CITY OF ENGLEWOOD
ATTEST:
Date: ............................ . Date: ................. .
PRO:: Ci lly:
Date: .... g-; . .., .J.. f(:-:'fO • • --• • • • • •