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HomeMy WebLinkAboutRFP - P911 CITY PARK NINE GOLF COURSE GOLF PROFESSIONALREQUEST FOR PROPOSAL CITY OF FORT COLLINS CONTRACT FOR SERVICES CITY PARK NINE GOLF COURSE GOLF PROFESSIONAL/CONCESSIONAIRE PROPOSAL NO. P-911 PROPOSAL DATE: 2:00 p.m. (our clock) November 7, 2003 Pre-proposal Meeting: 2:00 P.M. October 29, 2003 1 REQUEST FOR PROPOSAL CITY OF FORT COLLINS CONTRACT FOR SERVICES CITY PARK NINE GOLF COURSE GOLF PROFESSIONAL/CONCESSIONAIRE PROPOSAL NO. P-911 The City of Fort Collins is hereby requesting proposals for a contractual Golf Professional to manage and supervise the golf operations, pro shop functions, and food and beverage concessions at City Park Nine Golf Course, 411 South Bryan Avenue, Fort Collins, CO 80521, for the year 2004 with possible annual renewal options for the years 2005 through 2008; with a possible extension of the original five-year term for up to five additional years if performance is satisfactory and subject to City Council approval. Sealed proposals (6 copies) will be received at the office of the Director of Purchasing and Risk Management, 215 N. Mason Street, 2nd Floor, Fort Collins, CO 80521, (P.O. Box 580, Fort Collins, CO 80522 if mailed) until 2:00 p.m. (our clock), November 7, 2003. Proposal No. P911. Completion of our written proposal questionnaire and annual payment schedule statement to/from the City shall accompany any proposal to be considered properly executed. There will be a pre-proposal meeting on October 29, 2003, at 2:00 p.m. at the City Park Nine Golf Course Clubhouse, 411 South Bryan Avenue, Fort Collins, CO 80521 to inspect the premises and answer any questions which may arise. A copy of the Proposal may be obtained as follows: 1. Call the Purchasing Fax-line, 970-416-2033 and follow the verbal instruction to request document # 30911. 2. Download the Proposal/Bid from the Purchasing Webpage, Current Bids page, at: www.fcgov.com/PURCHASING. 3. Come by Purchasing at 215 N. Mason Street, 2nd Floor, Fort Collins, and request a copy of the RFP. Top applicants may be interviewed by the RFP review committee. Interviews are tentatively set beginning at 3:00 P.M. November 20, 2003 2 The City of Fort Collins reserves the right to accept or reject any and all proposals and to waive any irregularities or informalities. Questions concerning the scope of the contract should be directed to the Manager of the Golf Division Jerry P. Brown, (970) 221-6350. Questions regarding proposals submittal or process should be directed to James B. O'Neill II, CPPO, FNIGP, Director of Purchasing and Risk Management, (970) 221-6775. James B. O'Neill, II, CPPO, FNIGP Director of Purchasing and Risk Management 3 BACKGROUND INFORMATION The City of Fort Collins is the owner and operator of the City Park Nine Golf Course located at 411 South Bryan Avenue, Fort Collins, CO 80521. The Cultural, Library, and Recreational Services area Golf Division administers City Park Nine for the City and desires to grant to a PGA “Class A” member Golf Professional (or equivalent) in good standing, or someone currently in the Program eligible to become a "Class A" Member within the initial term of our Agreement, a contract for services to manage and supervise the golf operations, pro shop functions, and food and beverage concessions at City Park Nine for the year 2004 with possible annual renewal options for the years 2005 through 2008, with a possible extension of the original five-year term for up to five additional years if performance is satisfactory and subject to City Council approval. The management and supervision of the golf operations, pro shop functions, and food and beverage concessions include, but are not necessarily limited to, the general management of play on the course, course monitoring (ranger/marshall), operation of the driving range, power golf cart preparation, return inspection, and rentals, golf lessons/instructions, collection and accounting of City fees and charges, sale of golf merchandise and services to customers, golf club repair, tournament coordination, overall clubhouse management, clubhouse janitorial services, snack bar concession services, daily cleaning of all outside entrance areas and golf cart staging area, and all other golf related operations except for course maintenance. The Golf Professional/Concessionaire provides all employees and volunteers necessary to facilitate the full and efficient use and management of the golf course operations as described; and the Golf Professional/Concessionaire owns and sells golf merchandise and services, the food and beverages, and operates the driving range through an exclusive concession granted by the City. In this contract for services, the Golf Professional/Concessionaire collects all revenues received at City Park Nine on a daily basis. The Golf Professional/Concessionaire accounts for and forwards to the City all revenues generated from green fees, annual passes, tournament fees and City tournament reservation fees, powered-golf cart rentals, surcharges, private golf cart usage fees, City building rentals, other reservation fees, and other such fees set by the City. The Golf Professional will keep all non-City revenues generated from the sale of golf merchandise, golf instructions/lessons, pull cart rentals, tournament service fees, golf club cleaning, rental and repair, food and beverage sales, and the driving range. The Golf Professional shall be the owner of all merchandise, rental clubs, club repair equipment, range balls, pull carts, course monitoring cart(s), and food and beverages and food and beverage cart(s). It should be understood that all course monitoring, daily golf cart preparation and inspection services, clubhouse janitorial service costs, and food and beverage vending costs are to be borne by the Golf Professional/Concessionaire as a part of this contract for services. With regard to the course monitoring, the City desires that the Golf Professional include whatever is necessary to reasonably facilitate our “Slow Play Policy” as slow play is one of our major concerns. Also, City Park Nine is a “spikeless” golf course. 4 THE COURSE AND HISTORY City Park Nine is a regulation size 9-hole golf course, built as a WPA Project in circa 1940, and was originally operated by the Fort Collins Golf Association. The City took over the total operations of the course in 1970. The course plays 3,335 yards from the back (blue) tees, 3,029/3,089 yards from the mid (white) tees, and 2,632 yards from the forward (red) tees, and is a par 36. In 2000 through 2002, an average of 41,000 total rounds of golf (including both 9 and 18 hole rounds) were played, with an average of 10,700 of those rounds played by annual pass card holders and the remainder green fee rounds; with approximately four percent of the total rounds being 18-hole rounds. Golf facilities include a 'short' driving range, two practice putting greens and a practice chipping green, and a well maintained golf course. The clubhouse building, which was rebuilt in 1988, includes a lounge, kitchen, and snack bar area, and a complete service pro shop where the starter operations are performed. There is also an office and club repair/storage room. GOLF PROFESSIONAL/CONCESSIONAIRE FEES, REVENUES, AND PAYMENTS The existing Golf Professional/Concessionaire at City Park Nine Golf Course has served in that capacity since March 2001, and has decided to terminate his Agreement, effective December 31, 2003. He will continue to provide staff and golf services at City Park Nine through December 31, or after until a new Golf Professional/Concessionaire is hired, if necessary. The City of Fort Collins has paid (as per the RFP bids) the following annual amounts, as a Fee for Services to the existing contractual Golf Professional/Concessionaire since 2001: 2001 2002 2003 $45,000 $46,000 $47,000 For comparative purposes only, the existing contractual Golf Professional/Concessionaire provided to the City the following unaudited figures as being generally representative of his average annual gross revenues generated at the City Park Nine Pro Shop, Driving Range, and Snack Bar during the past three years under similar circumstances: 2001 2002 2003* Shop Sales $67,000 $75,000 $46,000 Est. Driving Range 62,000 67,000 57,000 Est. Food/Beverage 41,000 43,000 28,000 Est. Total $170,000 $185,000 $131,000 Est. * Storm Drainage construction on the golf course until June 20, 2003 impacted play and revenues. The project has been completed. The City makes no representation or guarantees as to the accuracy of the revenue figures as provided by the Golf Professional/Concessionaire. As a part of his proposal to the City, the existing Golf Professional/Concessionaire agreed to pay to the City the following: 5 2001 2002 2003 Food & Beverage Concession Fee $ 4,000 $ 4,000 $ 4,000 Golf Shop Concession Fee $ 4,000 $ 4,000 $ 4,000 Driving Range Payment $12,000 $13,000 $14,000 Total Payments to the City $20,000 $21,000 $22,000 Plus he also paid 100% of the cost for replacement carpeting in the Pro Shop in 2001. FOOD AND BEVERAGE OPERATION We will require that the successful Golf Professional/Concessionaire proposal at least provide minimum food and beverage services at City Park Nine Golf Course, which may include vending machines for soft drinks, self-service coolers, candy, coffee, chips, cold sandwiches, packaged food, and the sale of beer and wine; and the operation of a food and beverage cart to serve these products on the course. In addition, the Golf Professional/Concessionaire may utilize catering companies to come in for special events, or authorize private parties using City Park Nine Golf Course to utilize catering companies for their special events at the course. The Golf Professional/Concessionaire may utilize all of the City-owned Inventory of Snack Bar/Restaurant Equipment noted in Exhibit “H” in the attached draft Agreement. It is the desire of the City to hopefully re-open a full-service snack bar operation in the future if at all possible, and the possibility exists that City Park Nine Golf Course could support a full- service, full-time snack bar, provided, however, that the City and/or Golf Professional/Concessionaire brings the kitchen up to Code (including adding a grill, hood, and proper refrigeration and sinks as per Health Codes), etc. If these improvements are made, the Golf Professional/Concessionaire may desire to re-open the snack bar full-time during at least the peak season, and part-time for special events and throughout the balance of the year. Catering and/or banquet services operated out of the clubhouse are also a possibility. ATTACHED INFORMATION/DATA Attached are copies of the City Park Nine scorecard, the City Park Nine “Slow Play Policy” and “Course Pace Rating” information, the “Policy Statement on Golf Staff Usage at City Golf Courses,” the 2004 Golf Fees and Charges Schedule, City generated revenues, and golf play statistics and golf cart rental data at City Park Nine from 2001 to September 2003, for your information and reference. CRITERIA FOR PROPOSAL AWARD The proposal will be evaluated as follows: 1. A Five-person City Park Nine Golf Professional/Concessionaire RFP Review Committee, composed of two members from the City of Fort Collins Golf Advisory Board, one member from the City Golf Division staff, one member from the City of Fort Collins Purchasing staff, and one outside person appointed by the Director of Purchasing, will review all written 6 proposals. Using a point evaluation system for grading each proposal, the committee will rank each proposal in numerical order. 2. The top ranked proposers may be interviewed by the Committee and the Committee will rank the interviews using criteria and potential questions regarding background and experience of the Golf Professional/Concessionaire and staff, the ability of the Golf Professional/Concessionaire to operate as per the scope of the proposal, and the financial circumstances of the proposal including ability to perform and cost to the City. 3. The Manager of the Golf Division will check the references and perform a background screening of the top ranked individual/firm. If the references and background screening are acceptable, an Agreement will be awarded to the highest ranked firm/individual subject to suitable contract negotiations. PROPOSAL REQUIREMENTS A. Complete the "Proposal" form as provided. B. No person, firm or corporation shall make or file more than one proposal for this contract for services. C. Proposals (6 copies) must be sealed, addressed, and deposited with the City at the following location before the proposal opening: City of Fort Collins Office of the Director of Purchasing and Risk Management 215 N. Mason Street, 2nd Floor (if delivered) P.O. Box 580 ( if mailed) Fort Collins, CO 80522 D. A proposal may be withdrawn at any time prior to the proposal opening, but may not be withdrawn for a period of sixty (60) days from the closing date for receiving proposals. E. Required Documents - The following shall be submitted with the proposal: 1. Proposal Questionnaire 2. The Proposal form/addendum acknowledgment page (s) 3. An Annual Payment Schedule Statement To/From the City F. During the written portion of the RFP process, public input/citizen support is not included, and will not be considered when the committee is evaluating the written proposals. References will only be considered by the committee for the interview portion of the process. As a public entity, citizens have a right to provide their opinions to us; however, the RFP process clearly defines when such input will be considered. Therefore, proposers shall not solicit nor encourage such citizen support, nor provide references during the written portion of the process. Said references and 7 support can be a part of the interview phase of the process. All letters, faxes, e-mails, etc. should be sent to the Manager of Golf for processing. PERMITS, LICENSES, FEES, AND TAXES It shall be the responsibility of the Golf Professional/Concessionaire to make application for the necessary permits and licenses, and to pay for all fees and taxes in order to operate the City Park Nine Pro Shop and Driving Range, and food and beverage concessions, including the ability to obtain a City Beer and Wine License for beverage sales and consumption. COLLUSIVE OR SHAM BIDS Any bid deemed to be collusive or a sham bid will be rejected and reported to authorities as such. Your authorized signature of this proposal assures that such bid is genuine and is not a collusive or sham bid. PRE-PROPOSAL MEETING We will hold a Pre-Proposal Meeting at the City Park Nine Clubhouse, 411 South Bryan Avenue, Fort Collins, CO 80521 on October 29, 2003 at 2:00 p.m. We will allow you to examine the premises at that time and answer any questions pertaining to the proposal. The meeting is not mandatory, but suggested. 8 QUESTIONS Any questions or interpretations of these proposal documents shall be directed to: Mr. James B. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management City of Fort Collins 215 N. Mason Street, 2rd Floor P.O. Box 580 (if mailed) Fort Collins, CO 80522 970. 221.6775 Any questions concerning the scope of this contract or citizen support/references should be directed to: Jerry P. Brown Manager of Golf City of Fort Collins 215 N. Mason Street, 3rd Floor P.O. Box 580 (if mailed) Fort Collins, CO 80522 970. 221.6350 970.221.6586 (FAX) E-Mail address: jpbrown@fcgov.com Any questions concerning the City Beer and Wine License application and approval process should be directed to: Aimee Jensen Deputy City Clerk City of Fort Collins 300 LaPorte Avenue P.O. Box 580 (if mailed) Fort Collins, CO 80522 970.221.6315 970.221.6295 (FAX) E-Mail address: ajensen@fcgov.com 9 SPECIFICATIONS Included in this “Request for Proposals” package is a copy of a draft agreement that the Golf Professional/Concessionaire and the City will sign. All of the elements of the agreement are considered as part of the specifications for the proposals requested. This specification sheet amplifies the major provisions of the City Park Nine Golf Professional/Concessionaire operations, as well as defines and provides clarification of several specific points. 1. The Golf Professional/Concessionaire and the City shall sign an agreement which will grant to the Golf Professional the management and supervision of the golf operations, pro shop functions, and food and beverage concessions at the City Park Nine Golf Course. This shall include, but is not necessarily limited to, the general management of play on the course, golf course monitoring (ranger/marshal function), operation of the driving range, power golf cart preparation return and inspection and rentals, golf lessons/instructions, collection and accounting of City fees and charges, sale of golf merchandise and golf services to the customers, golf club repair, tournament coordination, overall clubhouse management and clubhouse janitorial services, daily cleaning of all outside entrance areas and golf cart staging area, snack bar concession services, and all other golf related operations except for course maintenance. 2. The duration of the agreement will be for the year 2004, with four possible annual renewal options (if desired by both parties) for the years 2005, 2006, 2007 and 2008; with a possible extension of the original five-year term for up to five additional years if performance is satisfactory and subject to City Council approval. 3. The Golf Professional must be a PGA Class “A” member or the equivalent, in good standing at the time the Agreement is signed and throughout the duration of the Agreement, or someone currently in the Program eligible to become a "Class A" member within the initial term of the Agreement; and should have been in this or related business for at least two (2) years within the past five (5) years, or have sufficient other similar past experience which would satisfy this requirement in the judgement of the Committee. In addition, the City will initially conduct a standard background check of the Golf Professional/Concessionaire, as defined. 4. The financial condition of the Golf Professional/Concessionaire must be of such standing that he/she will be able to initially open and operate the City Park Nine Pro Shop, Concessions, and Driving Range, starting approximately January 1, 2004, or when the Agreement officially commences. No later than May 1, 2004, all phases must be fully operational including the acquisition of and maintaining of an adequate stock of golf merchandise, supplies, inventory, rental equipment, range balls, food and beverage, etc., as necessary to meet the demands of the customers at City Park Nine Golf Course. The Golf Professional/Concessionaire must also be able as of January 1, 2004 (or when the Agreement officially commences) to hire and pay the wages, Workers’ Compensation, Social Security, payroll taxes, benefits, or other employment-related compensation for any and all employees of the Golf Professional/Concessionaire necessary for the operation of City Park Nine Golf Course, as well as any or all other taxes, including Posessory Interest Taxes, that might be required by government authorities; and that the Golf Professional/Concessionaire must be able to make application for and pay for all 10 necessary permits, licenses, and fees in order to operate legally at City Park Nine Golf Course through the year 2008 if the four renewal options (if desired by both parties) are exercised; and must obtain a City Beer and Wine License for beverage sale and consumption. The premises of the License is defined as the Golf Clubhouse, patio, and the entire golf course grounds of City Park Nine Golf Course. Any such licenses held by the Golf Professional/Concessionaire in connection with this Agreement shall be surrendered by the Golf Professional/Concessionaire upon termination of this Agreement; and Tangible proof of financial ability will be required if you are interviewed. 5. City Park Nine Golf Course, the Pro Shop, and Driving Range must be opened daily for business from at least 6:00 a.m. through sundown (as long as golfers are on the course) for the months of April, May, June, July, August, and September; and must be opened daily for business from at least 8:00 a.m. to sundown (as long as golfers are on the course) for the months of October, November, December, January, February, and March; it being understood that City Park Nine shall be open and closed, subject to the City’s consent, as weather and course play dictates. 6. Insurance Requirements. A. The Golf Professional/Concessionaire will provide from insurance companies, acceptable to the City, the insurance coverage designated hereinafter and pay all costs. The Golf Professional/Concessionaire also indemnifies the City. Before commencing work under this Request for Proposal, the Golf Professional/Concessionaire shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: “The insurance covered by this certificate will not be canceled or materially altered, except after ten (10) days written notice has been received by the City.” In case of the breach of any provision of this requirement, the City, at their option, may take out and maintain, at the expense of the Golf Professional/Concessionaire, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Golf Professional/Concessionaire under this agreement. The City, its officers, agents, and employees shall be named as additional insurers on the Golf Professional/Concessionaire’s general liability insurance policy for any claims arising out of work performed under this agreement. 11 B. Insurance coverages shall be in the following insurance limits: $150,000 -- Liquor Liability $1,000,000 -- Commercial General Liability with combined single limit; $2,000,000 Aggregate Statutory -- Workers’ Compensation Coverage A $100,000/$500,000/$100,000 -- Workers’ Compensation Coverage B $1,000,000 -- Products Liability In the event any work under this agreement is performed by a subcontractor, the Golf Professional/Concessionaire shall be responsible for any liability directly or indirectly arising out of the work performed under this agreement by a subcontractor, which liability is not covered by the subcontractor’s insurance. 7. The Golf Professional/Concessionaire shall be responsible for charging, collecting, and accounting for all City fees, including green fees, annual passes, tournament reservation fees, City golf cart rentals, private golf cart usage fees, surcharges, City building rentals, tournament fees, other reservation fees, etc. on behalf of the City, and remit said City funds in full to the City on a daily basis. 8. The Golf Professional/Concessionaire agrees to keep and maintain proper business records concerning every aspect of the Golf Professional/Concessionaire golf operations and employee management, including cash register tapes, computer reports, expenses and receipts, etc. All records, including Income Tax records, are to be open for inspection and audit by the City. 9. The Golf Professional/Concessionaire shall control the conduct and demeanor of its agents and employees. Upon objection from the City concerning conduct or demeanor of any such person, the Golf Professional/Concessionaire shall immediately take all lawful steps to address or remove the cause of the objection. Also, if the City so requests, the Golf Professional/Concessionaire agrees to supply and require its employees to wear suitable attire and to wear or carry badges or other suitable means of identification, the form for which shall be subject to prior and continuing approval of the City. 10. The Golf Professional/Concessionaire acknowledges and agrees that certain services provided by the Golf Professional/Concessionaire will require that employees, agents, and volunteers of the Golf Professional/Concessionaire act in positions of trust which will entail the handling of and accounting for funds of the City and City property, or direct contact with youth and other members of the general public. Accordingly, the Golf Professional/Concessionaire agrees that all employees, volunteers, and other representatives or agents of the Golf Professional/Concessionaire in positions of trust, as defined, shall be screened using the City's contractual background screening procedure, with such costs associated with said screenings to be fully paid by the Golf Professional/Concessionaire. 11. The personal conduct of the Golf Professional/Concessionaire has a direct impact on the quality of performance. Unacceptable personal conduct/behavior by the Golf 12 Professional/Concessionaire, as defined, can result in immediate or early termination of the Agreement, as also defined. 12. Smoking instruments and tobacco products of any kind will not be sold at the golf course, snack bar, or clubhouse. Smoking is not permitted in any areas of the clubhouse. 13. The City pays for all trash removal and recycling removal services, utilities, clubhouse security system, and telephones supplied to the golf course. The Golf Professional/Concessionaire shall reimburse the City monthly for the full cost of all long distance and two-thirds of the cost of all cell phones and of all local calls made from said City telephones. The City shall provide the Golf Professional an itemized copy of said monthly long distance, cell phones, and local phone bills. The Golf Professional/ Concessionaire shall also fully pay for any and all cable or satellite television services provided in the clubhouse. 14. The City and the bank handling the City’s banking services will allow the Golf Professional/Concessionaire to use the City’s credit card billing system for the collection of all City fees and charges, as well as for specified Golf Professional/Concession fees, with the Golf Professional/Concessionaire paying for their share of said service at the rate established by the City’s bank. 15. The Golf Professional/Concessionaire shall devote his/her full time and attention as the Golf Professional/Concessionaire at City Park Nine Golf Course, and the City relies upon the personal services of the Golf Professional/Concessionaire to provide such services; and the hours that the Golf Professional/Concessionaire shall be at City Park Nine Golf Course will be mutually agreed between the Golf Professional/Concessionaire and the Manager of the Golf Division. 16. The management and supervision of the golf operations, pro shop functions, and food and beverage concessions at the City Park Nine Golf Course granted under this agreement shall, at all times, conform with the rules, regulations, policies, and procedures as adopted by the City of Fort Collins, or any of its Boards, Service Areas, Departments, or Divisions having jurisdictions over golf courses. 13 PROPOSAL PROPOSAL NO: P-911 DATED THIS DAY OF , 2003 CONTRACT FOR SERVICES: City Park Nine Golf Professional/Concessionaire 411 South Bryan Avenue Fort Collins, CO 80521 TO: City of Fort Collins Office of the Director of Purchasing and Risk Management 215 N. Mason Street, 2nd Floor ( if delivered) P.O. Box 580 (if mailed) Fort Collins, CO 80522 To Whom It May Concern: 1. The undersigned, pursuant to the Request for Proposals, which requested proposals for a contractual Golf Professional to manage and supervise the golf operations, pro shop functions, and food and beverage concessions at the City Park Nine Golf Course, having examined all documents, the golf course site, and having become familiar with all the conditions existing and relative to same, hereby proposes to operate same in accordance with the proposal documents. 2. I/we acknowledge receipt of the following addenda and have included their provisions in this proposal: Addendum No. ( ), Dated_________ Addendum No. ( ), Dated_________ 3. In submitting this proposal, the undersigned warrants that he/she has complied with all the provisions of the "Request for Proposals, Instructions, and Specifications," and can furnish the labor and materials and business acumen to carry out the golf professional and concession operation using the highest of modern professional golfing and management standards as employed at leading golf clubs and golf courses, in all respects, as specified in the proposal documents. 4. The undersigned submits the following proposal, which includes all permits, licenses, insurance, fees, and taxes, etc., included in the following documents, fully completed, as a condition of submitting an acceptable proposal: A. Proposal Questionnaire B. Annual Payment Schedule Statement To/From the City 5. The undersigned also agrees that he/she will not withdraw his/her proposal for a period of sixty (60) days from the closing date for receiving proposals. 14 RESPECTFULLY SUBMITTED: NAME: ________________________________________ ADDRESS: ________________________________________ ________________________________________ TELEPHONE: ________________________________________ BY: ________________________________________ Signature TITLE: END OF PROPOSAL 15 ANNUAL PAYMENT SCHEDULE STATEMENT (To and/or From the City) The City of Fort Collins will establish a schedule of City fees and charges, and will keep all revenues generated from green fees, annual passes, tournament fees, City-owned powered golf cart rentals, surcharges, private golf cart usage fees, other reservation fees, building rentals, etc. at the City Park Nine Golf Course. The Golf Professional will acquire and own, and will keep all income/revenues generated from the sale of golf merchandise, pull cart rentals, tournament service fees, golf club cleaning, golf club repair, golf rentals, food and beverage sales, and from the operation of the driving range and from providing professional golf lessons/instructions, etc., and will pay for their own staff at the City Park Nine Golf Course. Therefore, in consideration of the aforementioned... You may desire to pay to the City of Fort Collins an annual fee payment in either a flat-rate amount or on a percentage basis, or make an in-kind contribution of a specific dollar value. If so, how much money/percentage/value will you (Golf Professional/Concessionaire) pay in each year listed to the City of Fort Collins to be the Golf Professional/Concessionaire at City Park Nine Golf Course? 2004- $ or % or________ 2005- $ or % or________ 2006- $ or % or________ 2007- $ or % or________ 2008- $_________ or _____________% or________ *** and/or *** How much money annually must the City of Fort Collins pay you (Golf Professional/Concessionaire) to be the Golf Professional/Concessionaire at City Park Nine Golf Course? 2004- $ (In writing: ) 2005- $ (In writing: ) 2006- $ (In writing: ) 2007- $ (In writing: ) 2008- $__________ (In writing:_______________________________) (You must explain the above annual payments to and/or from the City, such as variable monthly amounts, flat-rate payments, percentage payments, in-kind contribution payments, etc. by attaching such written explanation on no more than one page to this page). Contractor: ____________________________________ (Weighting Value 5.0) 16 PROPOSAL QUESTIONNAIRE INFORMATION Attached you will find the “Proposal Questionnaire.” You will need to answer all seven questions on one side of 8-1/2" x 11" paper only, per question. We have determined that you must answer each question with no more than one page per answer per question. Please try to answer each question in sufficient detail, noting that we are interested in the quality of your answers, not just the quantity. In addition to the seven pages, you may also provide one 8-1/2" x 11" supplemental page (one side only) to provide additional information or to further answer any of the seven questions which you could not do within the one page limitation. You may also attach a copy of your resume if you desire which does not count against your page limitations. If you are selected for an oral interview, will need to bring to the interview a copy of tangible proof of your financial ability to perform as the City Park Nine Golf Professional/Concessionaire, as well as your ability to secure acceptable insurance coverage as required. You will need to provide the Manager of Golf with at least three (3) references prior to the interview that we may contact regarding your qualifications. The City will also conduct a background screening procedure on the finalists and you will need to provide a signed authorization form to allow that screening to proceed. Review and Assessment Respondents will be evaluated on their written answers to the following seven questions. A rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and 5 being an outstanding rating. Each of the seven questions shall have a “weighting factor” of 1.0, 2.0, 3.0, as we have determined, meaning that the maximum total of points to be achieved from the seven questions is 75 points. In addition, we have assigned a 5.0 “weighting factor” to the Annual Payment Schedule Statement, meaning it has a maximum total of 25 points (also on a 1 to 5 scale) by itself. Therefore, the maximum grand total of points to be achieved is 100 per Rater. 17 Proposal Questionnaire Question 1 -- What are your qualifications and personal attributes that relate to your performance of our defined services? (You may attach a copy of your Resume if you desire which does not count against your page limitations.) (Weighting Value of 3.0) Question 2 -- What qualifications will you require of your assistant(s) and other employees? Please outline your staffing plans for peak, transitional, and off-season times. (Weighting Value of 2.0) Question 3 -- What conditions, needs or requirements do you see at City Park Nine, and how will you deal with them (i.e., marketing strategy, niche customers, maintenance staff, special issues, etc.)? (Weighting Value of 1.0) Question 4 -- What are your plans and related strengths and weaknesses to operate the City Park Nine Pro Shop and Driving Range with regards to: A. Merchandise; B. Services Offered; C. Customer Services; D. Teaching? (Weighting Value of 3.0) Question 5 -- How do you plan to finance your operation, both initially and through the year 2008? (Weighting Value of 2.0) Question 6 -- With regard to course monitoring (rangering/marshaling) and maintaining an acceptable pace of play, outline specifically what program you will implement? Also, how much will you (as resident pro) be involved? (Weighting Value of 1.0) Question 7 -- What is your experience with, and how do you plan to provide concession services at City Park Nine in the following areas: A. Beer and Wine; B. non- alcoholic beverages; C. food services? (Weighting Value of 3.0) Additionally -- Annual Payment Schedule Statement (to and/or from the City). (Weighting Value of 5.0) 18 19 20 21 22 23 24 25 26 27 28 29 30 DRAFT GOLF SERVICES AND CONCESSION AGREEMENT CITY PARK NINE GOLF COURSE FORT COLLINS COLORADO ____________ ___, 2003 31 CITY PARK NINE GOLF COURSE GOLF SERVICES AND CONCESSION AGREEMENT This Golf Services and Concession Agreement, hereinafter called the "Agreement," is made and entered into as of the ___ day of ___________, 2003, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose principal offices are at 300 LaPorte Avenue, Fort Collins, Colorado 80521, hereinafter called "City," and ______________, hereinafter called "Contractor", regarding certain services to be provided at the City Park Nine Golf Course, 411 South Bryan Avenue, Fort Collins, Colorado, 80521 (the "Golf Course"). W I T N E S S E T H : ARTICLE 1 Golf Services Contractor agrees to provide golf services in accordance with the Scope of Golf Services description, consisting of 1 page, attached hereto as Exhibit "A" and incorporated herein by this reference ("Golf Services"), such services to be provided primarily by the Contractor. ARTICLE 2 Grants of Concessions 2.1 Grant of Pro Shop and Driving Range Concession. The City grants and Contractor accepts the responsibility of operating a Golf Pro Shop and Driving Range Concession in accordance with the Scope of Pro Shop and Driving Range Services description, consisting of 3 pages, attached hereto as Exhibit "B" and incorporated herein by this reference ("Pro Shop and Driving Range Services"). 2.2 Grant of Snack Bar Concession. The City grants and Contractor accepts the responsibility of operating a kitchen and snack bar area and using such facilities as appropriate to provide refreshment services, including food, non-alcoholic beverages, licensed alcoholic beverages, and related services to the public at the Golf Course, in accordance with the Scope of Snack Bar Concessions description, consisting of 1 page, attached hereto as Exhibit "C" and incorporated herein by this reference ("Snack Bar Services"). ARTICLE 3 Concession Space For the purposes of this Agreement, the "Concession Space" shall mean any and all parts of the pro shop and clubhouse building at the Golf Course. ARTICLE 4 Contractor's Use of the Concession Space 32 4.1 In General. Subject to other limitations expressed in this Agreement, the City grants to Contractor the right to exclusive use of the Concession Space and the right to use in common with others the public areas of the Golf Course, in conjunction with its operations under this Agreement, in such spaces and manner as may be prescribed by the City. 4.2 Smoking Prohibited. Pursuant to the Fort Collins City Code, smoking is prohibited in the Concession Space, and no person shall smoke outside within twenty (20) feet from any entrance, passageway, operable window or ventilation system of the Concession Space unless such person is passing through the area, without stopping, en route to another destination. The Contractor shall inform persons violating this provision of the applicable law and request their compliance. 4.3 Restriction on Items Offered for Sale. In no event shall Contractor offer for sale or otherwise supply smoking instruments or tobacco at the Golf Course. 4.4 Compliance with Applicable Law. The Contractor agrees to comply fully with all applicable state and federal laws and regulations and municipal ordinances, as well as all rules and regulations adopted by the City or any of its Boards, Service Areas, Divisions or Departments having jurisdiction over the Golf Course. ARTICLE 5 Rights of Ingress and Egress 5.1 In General. The Contractor shall have the right of ingress and egress to and from the Concession Space for Contractor's employees, agents and invitees to the extent reasonably necessary in connection with the conduct of Contractor's business under this Agreement. Areas designated as restricted areas by the City shall be excluded. 5.2 Closures. The City may, at any time, temporarily or permanently, close or consent to or request the closing of any roadway or any other way at, in or near the Golf Course, presently or hereafter used as such, so long as reasonable and safe means of ingress and egress remains available to Contractor. ARTICLE 6 Undertakings of Contractor 6.1 Service. Contractor agrees: 6.1.1 The Contractor shall furnish and pay for all equipment, except as otherwise provided by the City pursuant to Article 10, all goods, labor, transportation, supervision and services necessary to provide services in accordance with this Agreement. 6.1.2 Contractor acknowledges the desire and obligation of the City to provide a high level of service to the public. Therefore, Contractor agrees to offer for sale from the Concession Space only high quality food and beverages and other appropriate merchandise and products. If, in the opinion of the City, the selection 33 of items offered is inadequate or not of high quality or if any of the items are found to be objectionable for display and/or sale in a public facility, the items shall be removed or replaced as required by the City. The City Representative shall meet and confer with Contractor regarding such matters. However, Contractor acknowledges that the City's determination as to the same shall be conclusive. Failure of Contractor to correct, rectify or modify its quality within five (5) days of being advised in writing to do so shall be cause for default. 6.1.3 Contractor warrants that all Golf Services and related responsibilities performed under this Agreement shall be performed with the highest degree of competence and care and in accordance with the highest modern professional golfing and management standards in leading golf clubs and golf courses. 6.2 Hours of Operation. Subject to the exception for inclement weather expressed below, the Contractor will be required to provide services under this Agreement as follows: A. During the months of April, May, June, July, August and September, from at least 6:00 A.M. through sundown (or later if golfers remain on the course); B. During the months of October, November, December, January, February and March, from at least 8:00 A.M. to sundown (or later if golfers remain on the course); C. Exceptions to the daily schedule may be made, subject to the consent of the City, if closing is dictated by weather and/or course play. 6.3 Special Events Option. Contractor shall have the option, upon request by the City, but shall not be obligated, to provide luncheons or other meals for special occasions, including but not limited to association meetings and tournaments. In the event such a request is made and Contractor elects not to provide such services, the City may make use of the Concession Space to provide food and beverage services through other means, provided, however, that the City will make reasonable efforts to minimize the disruption to Contractor's operations that may result. 6.4 Contractor Personnel. Contractor shall control the conduct and demeanor of its agents and employees. If the City so requests, Contractor agrees to supply and require its employees to wear suitable attire and to wear or carry badges or other suitable means of identification, the form for which shall be subject to prior and continuing approval of the City. 6.4.1 The contractor agrees to provide to the City at all times a current list of employees, volunteers, and other representatives or agents of Contractor that will be working on behalf of the Contractor in providing services to the City under this Agreement. The Contractor and the City acknowledge and agree that certain services provided by Contractor will require that employees, volunteers, and other representatives or agents of the Contractor act in positions of trust which will entail the handling of and accounting for funds of the City and City property, or direct contact with 34 youth and members of the general public. Accordingly, Contractor agrees that all employees, volunteers, and other representatives or agents of the Contractor in positions of trust, as described in Exhibit "D", consisting of two (2) pages and incorporated herein by this reference, shall be screened using the background screening procedure described in Exhibit "D", at the Contractor's Expense, and that the results of such background screening shall be provided to the City prior to any such persons participation in the provision of services hereunder. The Contractor shall require the completion and execution of the Disclosure/Request, Authorization, and Waiver form attached hereto as Exhibit "E", consisting of one (1) page and incorporated herein by this reference, and shall provide to the employee/volunteer a Summary of Rights under the Fair Credit Reporting Act included as part of Exhibit "F", as attached hereto consisting of two (2) pages and incorporated herein by this reference. 6.4.2 The City may provide assistance in completing the background investigation, including providing information from the completed disclosure form to an outside vendor for a confidential records check. Contractor acknowledges that in such event, by providing such assistance to Contractor, the City assumes no responsibility for the timeliness, accuracy or completeness of the background investigation, or for the direct or indirect consequences resulting from the same, and Contractor shall hold the City harmless for any injury or loss resulting therefrom. 6.4.3 In the event that a background check, or any other information available to the Contractor or the City, raises questions about the trustworthiness, fitness for provision of services under this Agreement, competency or suitability of any individual for a position of trust of any kind, including handling of funds, City equipment or property, or working with youths or other members of the general public, such individual shall not be employed or allowed to volunteer in connection with the services or activities required or permitted under this Agreement, or in a manner that would permit contact by that person with the funds, equipment, property associated with the provision of services hereunder, or persons participating in programs or services provided under this Agreement. 6.4.4 Upon receipt of written notice from the City of any reasonable objection from the City concerning trustworthiness, fitness for provision of services under this Agreement, competence or suitability of any individual for a position of trust of any kind, or concerning conduct, demeanor or competence of any employee or volunteer of Contractor, the Contractor shall immediately take all lawful steps to remove or otherwise address to the City's reasonable satisfaction the cause of the objection or to remove such individual from the performance of any services provided hereunder. 6.4.5 The following constitute unacceptable personal conduct that the parties acknowledge and agree shall be subject to reasonable objection by the City. The parties acknowledge that other conduct not listed in this 35 Section may be determined by the City to be reasonably expected to impair Contractor's ability to provide satisfactory services under this Agreement, and may also give rise to a reasonable objection by the City to which Contractor shall be expected to respond as set forth herein. In the event the Contractor, or the individual Golf Professional/Concessionaire, if different from Contractor, commits any of the following examples of unacceptable conduct, or fails or refuses to take reasonable action to correct such conduct by any person providing services for or on behalf of Contractor hereunder, the City may give Contractor notice of violation and proceed in the manner as set forth in Section 17.1.9. A. Commission or conviction of a felony, or of any crime involving moral turpitude; B. Theft or misuse of City money or property; C. Harassment of, or discrimination against, any individual based on race, religion, national origin, age, sex, sexual orientation or disability; D. Falsification, unauthorized use or destruction of City records, reports or other data or information belonging to the City; E. Abusive or threatening treatment of any person, including, but not limited to physical or verbal confrontation; F. Using, consuming, possessing, having in the body or distributing alcohol (except in the normal performance of concession services) or controlled substances during working time; G. Destruction, loss or abuse of City property; H. Unauthorized use of City equipment or property for personal use; or I. Possessing or maintaining sexually explicit materials on City property. 6.5 Statements, Recordkeeping and Audits. Contractor shall keep books and records of the business, including an accounting of all revenue and expenses of the concession operation, in accordance with good accounting practice and in such form as is satisfactory to the City. The Contractor hereby grants to the City the right to audit Contractor's books and records for its operation at the Golf Course and agrees to make available to the City, or its authorized representative, at any time, Monday through Friday inclusive, between the hours of 9:00 a.m. and 5:00 p.m., at the offices of the City or the Golf Course, at the City's election, all records, books and relevant related information as may be required for audit purposes. 6.6 Physical Interference. Contractor shall not do, nor permit to be done, anything which may interfere with the effectiveness or accessibility of the drainage system, sewerage system, fire protection system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located in the Concession Area or elsewhere at the Golf Course. 6.7 Taxes. Contractor agrees to pay all local, state and federal social security, unemployment insurance, sales, use, personal property, possessory interest, and other taxes, assessments and payments-in-lieu which, during the term of this Agreement or any extension hereof, may become a lien of which may be levied or charged by the State, County, City of Fort Collins or other tax-levying body upon or with respect to the Concession Space or the Golf 36 Course, upon any taxable interest acquired by the Contractor in this Agreement, or any taxable possessory right which Contractor may have in or to the Concession Space or facilities or the improvements thereon, by reason of Contractor's occupancy or use thereof, or otherwise, as well as all taxes on taxable property, real or personal, owned by Contractor or taxes on Contractor's operations or activities in or about the Concession Space or elsewhere at City Park Nine Golf Course. However, except as otherwise permitted by this Agreement, no charges, fees or taxes of any nature shall be imposed by the City solely upon Contractor for exercising any right or privilege granted by the City to Contractor in this Agreement with respect to the use of the Concession Space. Nothing herein shall prevent Contractor from protesting, through due process, any taxes levied. 6.8 Licenses. Contractor agrees to obtain and pay for all licenses necessary in connection with its operation, including but not limited to, a County Health Department Food Services Establishment inspection, a City Beer and Wine License, and a City business license and/or occupation license. 6.8.1 Any such licenses held by the Contractor in connection with this Agreement shall be surrendered by the Contractor upon termination of this Agreement. 6.8.2 Upon Contractor's surrender of all licenses and acquisition of new licenses by such replacement Contractor as the City may select, the City shall reimburse Contractor for such proportional amount of the cost of the license as may be attributable to any remaining period which may exist from the date of Contractor's surrender to license expiration. 6.8.3 For the purpose of the Beer and Wine License, the "premises" shall be defined to include the Concession Space and adjacent outdoor patio, and the entire golf course grounds of City Park Nine Golf Course. ARTICLE 7 Term 7.1 Period. The term of this Agreement shall commence on January 1, 2004, and unless terminated sooner, shall expire on December 31, 2004. 7.2 Renewal -- 2005. This Agreement shall be automatically renewed for a period from January 1, 2005, until December 31, 2005, unless the Contractor is in default or unless one party serves written notice to the other party of its intention to terminate the Agreement, provided such written notice must be served at least ninety (90) days prior to December 31, 2004. 7.3 Renewal -- 2006. This Agreement shall be automatically renewed for a period from January 1, 2006, until December 31, 2006, unless the Contractor is in default or unless one party serves written notice to the other party of its intention to terminate the Agreement, provided such written notice must be served at least ninety (90) days prior to December 31, 2005. 37 7.4 Renewal -- 2007. This Agreement shall be automatically renewed for a period from January 1, 2007, until December 31, 2007, unless the Contractor is in default or unless one party serves written notice to the other party of its intention to terminate the Agreement, provided such written notice must be served at least ninety (90) days prior to December 31, 2006. 7.5 Renewal -- 2008. This Agreement shall be automatically renewed for a period from January 1, 2008, until December 31, 2008, unless the Contractor is in default or unless one party serves written notice to the other party of its intention to terminate the Agreement, provided such written notice must be served at least ninety (90) days prior to December 31, 2007. 7.6 Extension. This Agreement may be extended beyond the original five (5) year term if performance is satisfactory and subject to City Council approval and negotiation of a mutually acceptable extension agreement. 7.7 Holding Over. In the event that the Contractor, or its successor in interest, if any, shall remain beyond the term set forth herein, although no right to remain is given by this Article, it is the intention of the parties and it is hereby agreed that a right of use from month-to-month shall then arise subject to all provisions and conditions of this Agreement in connection with such right, except that the City shall have the sole right to determine reasonable fees for any holdover period. ARTICLE 8 Fee For Services/Fee For Conducting Business 8.1 Golf Services Receipts. Contractor shall retain all fees received from the provision of golf lessons and instruction. 8.2 Golf Services Fee. As payment for performance of Golf Services, the City shall pay to Contractor the sum of $_______in 2004; $______ in 2005; $ _______in 2006; $______in 2007; and $_______ in 2008; to be paid in monthly amounts at the beginning of each month in advance, as set forth in the Monthly Payment Schedule, consisting of one (1) page, attached hereto as Exhibit "G" and incorporated herein by this reference ("Monthly Golf Services Fee Payment Schedule"); provided, however, that the parties may agree to an alternate payment schedule. 8.3 Golf Shop Concession Fee. For the privilege of conducting the concession operations hereunder, and the exclusive use of the Concession Space, the Contractor shall pay to the City____________________________________________________________. 8.4 Food and Beverage Consession Fee. 8.5 Driving Range Payments. 38 8.6 Time of Payments. The Contractor shall pay the Concession Fee on a monthly basis but, in no event, later than fifteen (15) days after the first day of the next month. 8.7 Interest on Past Due Amounts. Contractor shall pay interest on all past due amounts at the rate of eighteen percent (18%) per annum from the due date, until paid. 8.8 Method of Payment. Payment for all fees under Article 8 shall be by check or money order payable to the order of "City of Fort Collins - Golf" and shall be mailed or personally delivered to the City Representative at 300 Laporte Avenue, P.O Box 580, Fort Collins, Colorado, 80522. 39 ARTICLE 9 Utilities, Maintenance and Janitorial Duties 9.1 Utilities. The City shall pay all charges for water, storm water, sewer, gas, trash collection, Recycling, Clubhouse Security System Services, telephone, and electric services to the Concession Space; except, however, that the Contractor shall reimburse the City on a monthly basis for all long distance and two-thirds (2/3) of all cell phones and local telephone charges accruing as a result of calls attributable to the telephone lines located in the Concession Space or otherwise made by Contractor, its agents and employees. 9.2 Maintenance and Repair. The City shall maintain and repair the Concession Space and City equipment and fixtures (defined in Article 10). Contractor shall submit all requests for repairs or maintenance to the City Representative. Notwithstanding anything to the contrary contained herein, the City shall not in any way be liable to the Contractor for failure to make repairs as herein specifically required of it unless the Contractor has previously notified the City in writing of a need for such repairs, and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the Contractor's written notification. 9.2.1 The Contractor shall neither hold nor attempt to hold the City liable for any injury or damage, either approximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage upon the Concession Space, whether said breakage or stoppage results from freezing or otherwise. 9.3 Cleaning and Janitorial. The Contractor shall keep the Concession Space and its fixtures clean and in good sanitary condition as required by the ordinances, resolutions, policies, statutes, and health, sanitary and police regulations of the City of Fort Collins, County of Larimer, and State of Colorado. 9.3.1 Contractor shall thoroughly clean the entire Concession Space, including all equipment and fixtures, whether provided by the City or Contractor, and the floors, counters, refrigerators and all coils at least once prior to, once during and a third time after the close of the April through September golf season. 9.3.2 Contractor is responsible for the ongoing cleanliness of the Concession Space in order to provide a clean and orderly appearance for golfers and the public, including but not limited to, busing and cleaning tables, chairs, patio, floor areas and removing trash accumulations to designated trash containers. 9.3.3 Contractor shall maintain clean and orderly restrooms in the Concession Space throughout operating hours. 9.3.4 Contractor shall be responsible for the daily cleaning of all outside entrances to the concession space, as well as the daily cleaning of the golf cart staging area. 40 ARTICLE 10 Acceptance and Trade Fixtures 10.1 Concession Space, City Equipment and Fixtures. In addition to the Concession Space, the City shall provide the following: 10.1.1 Existing equipment as listed on Exhibit "H", attached hereto and made a part hereof; 10.1.2 Lighting fixtures for general area illumination; 10.1.3 Heat and air conditioning; 10.1.4 Pro shop counters, storage units and safe; and 10.1.5 One cash register for use by Contractor in connection with performance of services and sales under this Agreement. 10.1.6 Pro Shop Carpeting. 10.2 Acceptance. On the date of commencement of this Agreement, Contractor shall acknowledge that it accepts the Concession Space as well as any City equipment and fixtures "as is." 10.3 Installation of Equipment and Trade Fixtures. Except for the items listed on Exhibit "I", attached hereto and made a part hereof, no equipment, trade fixtures, signs or other personal property used by Contractor in its business, whether or not attached to the Concession Space or any Improvements thereon, shall be installed without the prior written approval of the City. 10.4 Removal of Equipment, Trade Fixtures. Contractor shall have the right at any time during the term of this Agreement or upon termination and within thirty (30) days thereafter, to remove all trade fixtures, equipment and other personal property subject to any valid lien the City may have thereon for unpaid rents or installation of equipment in lieu of Concession Fee pursuant to Section 8.1. Any property not so removed by Contractor upon termination shall become a part of the realty on which it is located and title thereto shall vest in the City. 10.5 Title to Improvements. Upon installation or erection of Improvements by Contractor, such Improvements (but excluding any of Contractor's personal property and trade fixtures which are attached or affixed thereto) shall become a part of the realty upon which they are erected and title thereto shall vest in the City. Upon vesting, the Improvements become part of the Concession Space and are subject to the terms applicable to the Concession Space within this Agreement. 10.6 Applicable Law. All Improvements and all trade fixtures, equipment or other personal property installed by Contractor shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, sign codes, rules and regulations of all governmental agencies which have jurisdiction over such matters. 41 ARTICLE 11 Damage by Contractor Contractor shall be liable for and shall repair, replace or cause to be repaired or replaced within fifteen (15) days after occurrence, any damage to the Concession Space, or to City's property, equipment and fixtures (defined in Article 10) caused by Contractor, its board members, officers, agents, employees or anyone acting under its direction and control, ordinary wear and tear excepted. All repairs or replacements shall be made promptly and when necessary and shall be in a quality and of a class at least equal to the original. If the damage for which Contractor is liable is to the Concession Space, Contractor shall continue to be liable for all rent owed for the Concession Space, even if it has been rendered untenantable. ARTICLE 12 Total or Partial Destruction 12.1 Concession Space or Other Major Component Rendered Untenantable. In case, during the term of this Agreement, the Concession Space, Golf Course or any principal part of any one of them shall be destroyed or shall be so damaged by fire, flood, or other casualty so as to be rendered untenantable or unusable as determined by the City: 12.1.1 Then, in such event, at the option of the City or Contractor, the term hereby created shall cease; and this Agreement shall become null and void from the date of such damage or destruction; and Contractor shall immediately surrender the Concession Space and its interest therein to the City; provided, however, that the City or Contractor shall exercise such option to so terminate this Agreement by notice, in writing, delivered to the other party within thirty (30) days after the City's determination of untenantability or unusability. 12.1.2 In the event neither the City nor Contractor shall elect to terminate this Agreement, this Agreement shall continue in full force and effect; and the City shall repair the Concession Space, Clubhouse, or Golf Course excluding improvements or equipment, signs, trade fixtures or other personal property installed by Contractor, with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction. 12.2 Concession Space Only Untenantable. In the event of destruction rendering only the Concession Space untenantable, the City shall endeavor, but not be obligated, to make substitute premises available for Contractor's use. During any period of use by Contractor of such substitute Concession Space, the City may direct that the Contractor's Fee shall be abated proportionately. 12.3 Components Tenantable. If the Concession Space or Golf Course shall be only injured by fire, flood, or the elements to such extent so as not to render the same untenantable and unfit for use and occupancy, the City shall repair the same with all reasonable speed. 42 12.4 Removal of Rubbish. In any event, upon the occurrence of damage or destruction, Contractor shall remove all rubbish, debris, merchandise, furniture, furnishings, equipment and other items of its personal property within five (5) days after request being made by the City. 12.5 Exception for Damage Caused by Contractor. In the event of damage caused by Contractor as more specifically addressed in Article 11 of this Agreement, the provisions of Article 11 shall govern in any conflict between Article 11 and Article 12. 12.6 No Claim by Contractor. No compensation or claim shall be made by or allowed to Contractor by reason of any inconvenience or annoyance arising from the necessity of repairing any portion of the Concession Space or City Park Nine Golf Course, however the necessity may occur. ARTICLE 13 Indemnification and Insurance 13.1 City's Liability. The City shall not in any way be liable for any cost, liability, damage or injury, including cost of suit and reasonable expenses of legal services, claimed or recovered by any person whomsoever or whatsoever as a result of any operations, works, acts or omissions performed within City Park Nine Golf Course and Concession Space by Contractor, its agents, employees or contractors unless caused or contributed to by the negligence or willful misconduct of the City, its employees, agents or contractors. 13.2 Indemnification. Contractor covenants that it will indemnify and hold the City harmless from all claims, demands, judgments, costs and expenses, including attorneys' fees, claimed or recovered (whether justly, unjustly, falsely, fraudulently or frivolously) by any person by reason of injury to or death of any individual person or persons, or by reason of damage to, destruction or loss of use of any property, including City's personnel and City's property, directly or indirectly arising out of, resulting from or occurring in connection with any operations, works, acts or omissions of Contractor. As used herein, the term "Contractor" and "City" includes the respective directors, officers, agents, employees and contractors of Contractor and City. 13.3 Patent Representation. Contractor represents that it is the owner of or is fully authorized to use any and all services, processes, machines, articles, makes, names or slogans used by it in its operation or in any way connected with this Agreement. 13.4 Contractor Insurance. Without limiting any of the Contractor's obligations hereunder, the Contractor shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement with limits specified in Exhibit "J", which is attached hereto and incorporated herein by this reference. 13.5 Precautions Against Injury. The Contractor shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 13.6 Failure to Insure. Failure of Contractor to take out and/or maintain, or the taking out and/or maintenance of any required insurance shall not relieve Contractor from any liability 43 under this Agreement, nor shall the insurance requirements be construed to conflict with the obligations on Contractor concerning indemnification. ARTICLE 14 No Interest in Real Property Contractor agrees that this Agreement constitutes merely a right to use and occupy the Concession Space for a limited purpose and does not create or convey to Contractor any interest in real property. ARTICLE 15 Assignment The Contractor shall not assign this Agreement, sublet or otherwise allow any person to take possession of all or any portion of the Concession Space without prior written consent of the City nor permit any transfer by operation of law of Contractor's interest created hereby, other than by merger or consolidation unless approved by City. ARTICLE 16 Right of City to Enter, Inspect and Make Repairs 16.1 In General. City and its authorized employees, agents, contractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption to Contractor's operation as is reasonably practicable) to enter upon any part of the Concession Space for the following purposes: 16.1.1 To inspect such premises at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether Contractor has complied with and is complying with the terms and conditions of this Agreement with respect to such premises; 16.1.2 To perform or cause to be performed maintenance and make repairs and replacements: and 16.1.3 To make structural additions and alterations. 16.2 Obstruction by City. All entries made for the purposes enumerated above shall, except as otherwise provided in Article 12, Total or Partial Destruction, be without abatement of rent or damage for inconvenience. However, in the event any entry by City in the Concession Space or the Golf Course for the purpose of making repairs or alterations as provided for in Section 16.1.2 above (other than repairs necessitated as a result of damage by Contractor under Article 11) constitutes a substantial obstruction to and impairment of Contractor's right of use of such facilities, then Contractor shall be entitled to a fair and just abatement of the rent for such premises during the period required by City to make such repairs. 44 16.3 Obstruction by Contractor. In the event that any personal property of Contractor shall obstruct the access of the City, its officers, employees, agents or contractors, or a utility company furnishing utility service to any of the existing utility, mechanical, electrical and other systems, and thus shall interfere with the inspection, maintenance or repair of any such system, Contractor shall move such property, as directed by the City or said utility company, in order that access may be had to the system or part thereof for inspection, maintenance or repair. If Contractor shall fail to so move such property after direction from the City or said utility company to do so, the City or the utility company may move it without liability for damage sustained in moving. 16.4 No Eviction or Abatement. Exercise of any or all of the foregoing rights in this Article, by the City, or others under right of the City, shall not be, nor be construed to be, an eviction of Contractor, nor be made the grounds for any abatement of rental nor any claim or demand for damages against the City, consequential or otherwise, except claims for damages to person or property caused solely by the negligence of the City. ARTICLE 17 Default, Rights of Termination 17.1 Default by Contractor. Time is of the essence in the performance of services and payments of any amounts due under this Agreement. Contractor shall be in default under this Agreement upon the occurrence of any one or more of the following events: 17.1.1 Contractor's failure to pay any fee or other charge when due and within five (5) workings days after notice from City of such nonpayment. 17.1.2 Contractor's failure to maintain the insurance required in Section 13.4. 17.1.3 Contractor's assignment of any right hereunder in violation of Article 15. 17.1.4 Contractor's failure to perform, keep or observe any of the terms, covenants or conditions of this Agreement within seven (7) days (or such longer time as may be necessary to cure, provided that cure is commenced within the initial seven [7] days) after notice from the City specifying the nature of the deficiency with reasonable particularity and the corrective action that is to be taken within such period to cure the deficiency. 17.1.5 The filing by Contractor of a voluntary petition in bankruptcy, the filing of an involuntary petition in bankruptcy against Contractor, the taking of possession of all or substantially all of Contractor's assets pursuant to proceedings brought under the provisions of any federal reorganization act or the appointment of a receiver of all or substantially all of Contractor's assets and the failure of Contractor to secure the return of such assets and/or the dismissal of such proceeding within ninety (90) days after the filing. 45 17.1.6 The abandonment for a period of (7) days by Contractor of the conduct of its services and operations. 17.1.7 The assignment by Contractor of its assets for the benefit of creditors. 17.1.8 The death of the Contractor or his/her disability for an aggregate period of two (2) months during any time of this Agreement. 17.1.9 After written notice to the Contractor of any violation of the personal conduct standards set forth in Section 6, above, and a hearing of the matter before the City's Director of Purchasing and Risk Management, if such a hearing has been requested in writing received by the Director of Purchasing and Risk Management within ten (10) days after mailing of written notice of violation, a determination by the Director of Purchasing and Risk Management that the alleged violation has, in fact, occurred, and that such violation materially interferes with Contractor's ability to perform its services hereunder in a manner satisfactory to the City or otherwise impairs the benefits to be derived from the City by this Agreement, including the good will, satisfaction, health and safety of the general public. 17.2 City's Remedies on Default. 17.2.1 In the event of a default by Contractor, the City may terminate this Agreement effective immediately upon provision of written notice of such termination to Contractor. In the alternative, the City may elect to keep the Agreement in force and work with Contractor to cure the default. If this Agreement is terminated, Contractor shall refund to the City that portion of the Golf Services Fee paid by the City pursuant to Section 8.2 proportional to the time remaining in the calendar month at the time of the Contractor's default, and the City shall have the right to take possession of the Concession Space at the time of default. Contractor's liability to City for damages and rent shall survive the termination, and the City may re-enter, take possession of the Concession Space and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages. 17.2.2 Following re-entry or abandonment, City may make arrangements for use of the Concession Space by others and in that connection may make any suitable alterations or refurbish the Concession Space, but City shall not be required to make such arrangement for any use or purpose. 17.3 Rights and Remedies Reserved. It is understood and agreed that any rights and remedies reserved pursuant to this Article are in addition to any other rights or remedies the City may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages or any other lawful remedy. 46 ARTICLE 18 Miscellaneous Provisions 18.1 Cumulative Rights. All remedies provided in this Agreement shall be deemed cumulative and additional and not in lieu of, or exclusive of, each other or of any other remedy available to the City, or Contractor, at law or in equity, and the exercise of any remedy, or the existence herein of other remedies or indemnities shall not prevent the exercise of any other remedy. 18.2 Non-Waiver. The failure by either party to exercise any right or rights accruing to it by virtue of the breach of any covenant, condition or agreement herein by the other party shall not operate as a waiver of the exercise of such right or rights in the event of any subsequent breach by such other party, nor shall such other party be relieved thereby from its obligations under the terms hereof. 18.3 Non-liability of Individuals Other than Contractor. With the exception of Contractor, no director, officer, agent or employee of either party hereto shall be charged personally or held contractually liable by or to the other party under any term or provision of this Agreement or of any supplement, modification or amendment to this Agreement because of any breach thereof, or because of its or their execution or attempted execution of the same. 18.4 Limitations on Use. Contractor shall not use, or permit the use of the Concession Space, or any part thereof, for any purpose or use other than those authorized by this Agreement. Neither shall Contractor permit nor suffer any disorderly noise or nuisance whatsoever about the Concession Space or City Park Nine Golf Course. 18.5 Governing Law. This Agreement shall be performable and enforceable in Larimer County, Colorado, and shall be construed in accordance with the laws of the State of Colorado. 18.6 Benefits. This Agreement is made for the sole and exclusive benefit of the City and Contractor, their successors and assigns, and is not made for the benefit of any third party. 18.7 Construction. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 18.8 Successors and Assigns. All covenants, stipulations and agreements in this Agreement shall extend to and bind each party hereto, its legal representatives, successors and assigns. 18.9 Headings. The titles of the several articles of this Agreement are inserted herein for convenience only, and are not intended and shall not be construed to affect in any manner the terms and provisions hereof, or the interpretation or construction thereof. 18.10 Attorney Fees. In the event any legal action or proceeding is brought to collect sums due or to become due hereunder or any portion thereof or to enforce compliance with this Agreement for failure to observe any of the covenants of this Agreement, the losing party 47 agrees to pay to the prevailing party such sums as the Court may judge reasonable attorneys' fees and costs to be allowed in such action or proceeding and in any appeal therefrom. 18.11 Incorporation of Request for Proposals/Entire Agreement. Request for Proposal Number P911, and all specifications included therein, and the Proposal submitted by the Concessionaire in response thereto, are incorporated and made a part of this Agreement by this reference, except that in the event of a conflict between such documents and the express terms of this Agreement, the terms of this Agreement shall prevail. This Agreement, which is the entire agreement between the parties hereto, supersedes all prior agreements, understandings, warranties or promises between the parties hereto, whether written, spoken or implied from the conduct of the parties hereto, except as expressly incorporated herein. 18.12 Severability. In the event any covenant, condition or provision of this Agreement is held to be invalid by final judgment of any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall not in any way affect any of the other covenants, conditions or provisions of this Agreement, provided that the invalidity of any such covenant, condition or provision does not materially prejudice either City or Contractor in his/her or its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. 18.13 Surrender of Possession. Upon the expiration of this Agreement or its earlier termination as herein provided, Contractor shall remove all of its property from City Park Nine Golf Course and surrender entire possession of its rights at City Park Nine Golf Course to City and its improvements in accordance with Section 11 above, unless this Agreement is renewed or replaced. 18.14 City Representative. The City designates the Manager of the Golf Division, of Cultural, Library and Recreational Services, as its representative who shall make, within the scope of his/her authority, all necessary and proper decisions with reference to this Agreement. All requests for contract interpretations, amendments and other clarifications or instructions shall be directed to the City Representative. 18.15 Notices. Notices permitted or required to be given under this Agreement shall be in writing and shall be deemed given upon personal delivery or upon deposit in the United States Mail, certified, return receipt requested, postage fully prepaid, addressed as follows or to such other address as the parties may designate from time to time by notice given in accordance with this Section: To Contractor: To the City: Manager Golf Division City of Fort Collins P.O. Box 580 Fort Collins, Colorado 80522 48 18.16 Schedules and Exhibits. Whenever reference is made in this Agreement to a Schedule or an Exhibit, unless otherwise specifically expressed to the contrary, such Schedule or Exhibit shall be deemed attached to and by this reference incorporated in this Agreement. 18.17 Force Majeure. However, neither the City nor the Contractor shall be deemed in violation of this Agreement if prevented from performing any of its obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortage of energy or materials, acts of God, act of public enemy, acts of superior governmental authority, weather conditions, rights, rebellion, sabotage or any other circumstances that are not within its control. 18.18 No Limitation on General Powers Nothing in this Agreement shall be construed as in any way limiting the general powers of the City to fully exercise their governmental functions or their obligations under any bond covenants or federal, state or local laws, rules or regulations. 18.19 No Relationship. Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of employer and employee, principal and agent or a partnership or a joint venture between the parties hereto. It is agreed that in the performance of the golf services and concession operation hereunder, the Contractor is an independent contractor responsible to the City only as to the results to be obtained and to the extent that the services and operation shall be done in accordance with the terms of this Agreement. 18.20 Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Contractor and that this Agreement shall be considered as an agreement for his/her personal services. Accordingly, the Contractor shall neither assign any responsibilities nor delegate any duties designated to the Golf Professional/Concessionaire under this Agreement to any other person without the prior written consent of the City. 18.21 Survival. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein required shall survive and shall not be affected by the expiration or termination of this Agreement. 49 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By: ____________________________________ James B. O'Neill, II, CPPO, FNIGP Director of Purchasing and Risk Management ATTEST: ________________________ City Clerk APPROVED AS TO FORM: ________________________ Assistant City Attorney Contractor: ____________________________________ 50 EXHIBIT A SCOPE OF GOLF SERVICES A. Contractor In General 1. Management and supervision of the golf course operations at the City Park Nine Golf Course, including but not limited to, the general management of play on the course and driving range, course monitoring (ranger/marshal functions), preparation, return inspection, and rental of City-provided golf carts, golf lessons/instruction, golf club repair, tournament coordination, and overall use and management of the clubhouse, including the daily cleaning of all outside entrance areas and cleanliness of the clubhouse. 2. Timely collection of green fees, annual pass fees, rental fees, tournament fees, golf cart rental or use fees, surcharges, City building rentals, and other such fees in the amounts set by the City. 3. Cleaning and daily preparation for customers of City-provided golf carts, including the daily cleaning of the golf cart staging area. 4. Provision of starters, assistant golf professionals, course monitors (marshals/rangers), janitors, cashiers and other personnel as necessary to facilitate full and efficient use of the course and other activities at the City Park Nine Golf Course. B. Golf Professional 1. The Contractor shall devote his/her full time and attention as the primary golf professional for the City Park Nine Golf Course during the entire calendar year. Upon submitting a written request at least three (3) days in advance and receiving the City's consent, he/she may take up to a total of fourteen (14) vacation days annually, and may be away from the golf course for the purpose of participating in tournament play or other golf-related activities, i.e., schools, seminars and demonstrations, to maintain and/or improve professional status for up to a total of sixteen (16) additional days annually. 2. The golf professional shall serve as the primary monitor (marshall/ranger) at the City Park Nine Golf Course. 51 EXHIBIT B SCOPE OF PRO SHOP AND DRIVING RANGE SERVICES I. Pro Shop and Driving Range. A. The Contractor shall operate a golf pro shop in the clubhouse which shall stock a variety of golfing equipment (for sale and rent), supplies and related merchandise in sufficient quantity to meet the demands of customers of the golf course. B. The Contractor shall provide all merchandise and display fixtures, stock, supplies and inventory for the shop. C. The Contractor shall operate the existing driving range, such operation to include making equipment and range balls available for use. D. The Contractor may retrieve and own any abandonded golf balls in the irrigation ditches at City Park Nine Golf Course. II. Merchandise Quality, Price Control. Contractor acknowledges the desire and obligation of City to provide the public and the golfer high quality merchandise and a high level of public service. Therefore, Contractor agrees to offer for sale from the clubhouse only high quality merchandise at prices not to exceed the prices customarily charged for similar merchandise in high quality Fort Collins area operations. If, in the opinion of the City, the selection of items offered is inadequate, if the merchandise is not of high quality, if any of the prices, charges and rates are excessive, or if any of the items are found to be objectionable for display and/or sale in a public facility, a representative of the City shall meet and confer with Contractor regarding such matters, but Contractor acknowledges that the City's determination as to same shall be conclusive. Failure of Contractor to correct, rectify or modify its prices or quality within five (5) days of being advised in writing to do so shall be cause for default. III. Fees. All fees and other income received through the operation of the pro shop, the sale of merchandise, the rental of equipment owned by the Contractor and the use of the driving range shall be retained by Contractor. IV. Use of the Clubhouse. The Contractor shall use any and all parts of the clubhouse and designated areas of the golf cart storage building, hereinafter collectively referred to as "clubhouse," for the purpose of operating the concessions and for other incidental purposes only. The clubhouse shall not be used for any other purpose without the prior written consent of City. 52 V. Maintenance and Repairs. A. The City shall be responsible to maintain and repair the interior and exterior of the clubhouse. The City shall not in any way be liable to the Contractor for failure to make repairs unless the Contractor has previously notified the City in writing of a need for such repairs, and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the notification. B. The Contractor shall be liable for and shall reimburse the City for the cost of any repairs or damage caused by any act or negligence of the Contractor or its agents or employees. C. The Contractor shall secure the retail pro shop area and shall provide janitorial services to that area, keeping it clean and in good sanitary condition as required by the ordinances, regulations and statutes of the City of Fort Collins, County of Larimer and State of Colorado. D. The Contractor shall neither hold nor attempt to hold the City liable for any injury or damage, either proximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage in or upon the clubhouse, whether said breakage or stoppage results from freezing or otherwise. E. The Contractor shall not permit nor suffer the clubhouse or the walls thereof to be endangered by overloadings nor permit it to be used for any purpose which would render the insurance thereon void or insurance risks more hazardous without prior written consent of the City, which consent may be conditioned upon the Contractor obtaining additional specific insurance coverage for such more hazardous risks. VI. Alterations and Improvements. A. All alterations, additions, improvements or changes to the clubhouse by the Contractor subsequent to the commencement of the term shall be subject to the prior written approval of the City. B. The City reserves the right, from time to time (without invalidating or modifying this Agreement), to make alterations, changes and additions to the land and improvements of which the clubhouse forms a part. C. The Contractor hereby indemnifies and agrees to hold the City harmless from all liens, claims or charges on account of any alterations, additions, improvements or changes to the clubhouse by Contractor. 53 D. At the end of the term of this Agreement, all fixtures, equipment, additions and alterations, except trade fixtures installed by the Contractor, shall be and remain the property of the City. Provided, however, the City shall have the option to require the Contractor to remove any or all such fixtures, equipment, additions and alterations and restore the clubhouse to the condition that existed immediately prior to such change and installation, normal wear and tear excepted, all at the Contractor's cost and expense. All such work shall be done in a good and workmanlike manner and shall consist of new materials unless otherwise agreed to by the City. VII. Utilities. The City shall pay all charges for water, sewer, gas, trash collection, recycling, clubhouse security alarm system, telephone and electric services to the clubhouse; except, however, that the Contractor shall reimburse the City on a monthly basis for all long distance and two-thirds of all cell phones and local telephone charges accruing as a result of calls by Contractor, its agents and employees. The Contractor shall fully pay for any and all cable or satelite television services provided in the Clubhouse. VIII. Credit Card Billing System. The City and the bank handling the City's banking services will allow the Contractor to use the City's credit card billing system for the collection of all City fees and charges, as well as for specified Golf Professional/Concession fees, with the Contractor paying for their share of said service, and at the rate established by the City's bank. The Contractor has the option to install and utilize their own credit card system, if desired, with all said costs to be fully paid by the Contractor. 54 EXHIBIT C SCOPE OF SNACK BAR CONCESSION SERVICES As of the date of the Agreement, the City understands that the Contractor will provide minimum food and beverage services at City Park Nine Golf Course, which may include vending machines for soft drinks, self-service coolers, coffee, candy, chips, cold sandwiches, and the sale Beer and Wine products; and the operation of a food and beverage cart to serve these products on the course from April through September when a sufficient number of customers are golfing. City owned or city leased golf carts shall not be used for this purpose unless approved by the City. In addition, the Contractor may utilize catering companies to come in for special events, or authorized private parties using City Park Nine Golf Course to utilize catering companies for their special events at the Course. Catering and/or banquet services operated out of the Clubhouse are also a possibility. It is the desire of the City and the Contractor that during the term of this Agreement the possibility exists that City Park Nine Golf Course could support a full-service, full-time snack bar, provided, however, that the City and/or Contractor brings the kitchen up to Code (including adding a grill, hood, and proper refrigeration and sinks as per Health Codes). If these improvements are made, the Contractor may re-open the snack bar full-time during the peak season and part-time during special events throughout the balance of the year, as may be appropriate. The Contractor may utilize all of the City-owned Inventory of Snack Bar/Restaurant Equipment noted in Exhibit "H" consisting of one page and incorporated herein by this reference ("City- owned Inventory"). 55 56 57 58 59 60 EXHIBIT G MONTHLY GOLF SERVICES FEE PAYMENT SCHEDULE 2004 2005 2006 2007 2008 January February March April May June July August September October November December TOTAL 61 EXHIBIT H CITY-OWNED INVENTORY CITY PARK NINE SNACK BAR/RESTAURANT EQUIPMENT NORTHLAND REFRIGERATOR SLICER HOT DOG MACHINE ICE MACHINE SHARP MICROWAVE FREEZER ALL TABLES, CHAIRS AND PICTURES IN THE CLUBROOM TELEVISION SET AND VCR CONVECTION OVEN AND STAND SAMSUNG CASH REGISTER IN PRO SHOP 62 EXHIBIT I CONTRACTOR-PROVIDED PERSONAL PROPERTY (TO BE PROVIDED NO LATER THAN MAY 1, 2004) 63 EXHIBIT J INSURANCE LIMITS $150,000 -- Liquor Liability $1,000,000 -- Commercial General Liability with Combined Single Limit; $2,000,000 Aggregate Statutory -- Workers' Compensation Coverage A $100,000/$500,000/$100,000 -- Worker's Compensation Coverage B $1,000,000 -- Products Liability