HomeMy WebLinkAboutDALE W SMIGELSKY - CONTRACT - RFP - P777 GOLF PROFESSIONAL SOUTHRIDGEGOLF SERVICES AGREEMENT
SOUTHRIDGE GOLF COURSE
FORT COLLINS
COLORADO
December 19, 2000
6.6 Taxes. Contractor agrees to pay all local, state and federal social security,
unemployment insurance, sales, use, personal property 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 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
SouthRidge 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.
6.7 Licenses. Contractor agrees to obtain and pay for all licenses necessary in connection
with its operation, including without limitation a City business license and/or occupation
license.
6.7.1 Any such licenses held by the Contractor in connection with this Agreement shall
be surrendered by the Contractor upon termination of this Agreement.
6.7.2 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.
ARTICLE 7
Term
7.1 Period. The term of this Agreement shall commence on January 1, 2001, and, unless
terminated sooner, shall expire on December 31, 2001.
7.2 Renewal -- 2002. This Agreement shall be automatically renewed for a period from
January 1, 2002, until December 31, 2002, 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,
2001.
7.3 Renewal -- 2003. This Agreement shall be automatically renewed for a period from
January 1, 2003, until December 31, 2003, unless the Contractor is in default or unless one
on
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,
2002.
7.4 Renewal -- 2004. This Agreement shall be automatically renewed for a period from
January 1, 2004, until December 31, 2004, 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,
2003.
7.5 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.
7.6 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 S
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 Fifty Five Thousand Dollars ($55,000.00) for 2001; Fifty Seven
Thousand Two Hundred Dollars ($57,200.00) for 2002; Fifty Nine Thousand Four Hundred
Eighty Eight Dollars ($59,488.00) for 2003; Sixty One Thousand Eight Hundred Sixty Eight
Dollars ($61,868.00) for 2004; and Sixty Four Thousand Three Hundred Forty Three Dollars
($64,343.00) for 2005; to be paid in monthly amounts as set forth in the monthly payment
schedule, consisting of one (1) page, attached hereto as Exhibit "F" and incorporated herein
by this reference.
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8.3 Concession Fee/In-Kind Contributions. For the privilege of conducting the concession
operations hereunder, and the exclusive use of the Concession Space, the Contractor shall pay
to the City a Concession Fee in the amount of Five Thousand Dollars ($5,000.00) each year of
this Agreement, or in lieu of all or a portion of such payment, shall make improvements to the
Clubhouse or related services as an In -Kind Contribution, as approved in writing in advance by
the Manager of the Golf Division, which shall offset the Concession Fee in an amount mutually
agreed in writing in advance by the parties.
8.4 Time of Payments. The City shall pay to Contractor the Golf Services Fee, required under
Section 8.2, monthly in advance no later than the seventh (7th) day of the month. The Contractor
shall pay to the City the Concession Fee or complete agreed upon In -Kind Contribution
improvements, as set forth in Section 8.3, no later than December 1 annually.
8.5 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.
8.6 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" and shall be mailed or personally delivered to the
City Representative at 300 Laporte Avenue, Fort Collins, Colorado 80521.
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, 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 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.
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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, statutes and
health, sanitary and police regulations of the City of Fort Collins, County of Larimer, State of
Colorado. The Contractor shall also 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 and cart storage
areas.
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 "G", attached hereto and made a part hereof;
10.1.2 Lighting fixtures for general area illumination;
10.1.3 Heat and air conditioning; and
10.1.4 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 "H",
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, may be installed without the prior written approval of the City, but
notice of any such installation shall be provided to the City.
10.4 Removal of Equipment, Trade Fixtures. Contractor shall have the right at any time during
the term of this Agreement, with the City's approval, or upon expiration 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. Any property not so removed by Contractor upon
expiration shall become a part of the realty on which it is located and title thereto shall vest in
the City. The City shall have the right to file any liens necessary to secure its interest in the
merchandise and equipment present in the Concession Space during the term of the Agreement.
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
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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.
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 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.
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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 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.
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 SouthRidge 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 SouthRidge 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.
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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 "I", 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 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:
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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.
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 payment
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.
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17.1.2 Contractor's failure to maintain the insurance required above.
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.
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 disability for an aggregate period of three (3)
months during any term 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 a 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
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proportional to the time remaining in the calendar year at the time of Contractor's default,
and the City shall have the right to take possession of any and all merchandise and equipment
located in 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.
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 SouthRidge Golf Course.
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TABLE OF CONTENTS
ARTICLE 1 Golf Services............................................................................................................I
ARTICLE 2 Grants of Concessions..............................................................................................1
ARTICLE 3 Concession Space.....................................................................................................I
ARTICLE 4 Contractor's Use of the Concession Space...............................................................I
4.1 In General.................................................................................................................2
4.2 Designation of Smoking Areas................................................................................2
4.3 Restriction on Items Offered for Sale......................................................................2
4.4 Compliance with Applicable Law...........................................................................2
ARTICLE 5 Rights of Ingress and Egress....................................................................................2
5.1 In General.................................................................................................................2
5.2 Closures....................................................................................................................2
ARTICLE 6 Undertakings of Contractor......................................................................................2
6.1
Service......................................................................................................................2
6.2
Hours of Operation..................................................................................................3
6.3
Contractor Personnel................................................................................................3
6.4
Statements, Recordkeeping and Audits
...................................................................5
6.5
Physical Interference................................................................................................5
6.6
Taxes........................................................................................................................6
6.7
Licenses....................................................................................................................6
ARTICLE7 Term.........................................................................................................................6
7.1 Period.......................................................................................................................6
7.2 Renewal -- 2002.......................................................................................................6
7.3 Renewal -- 2003.......................................................................................................6
7.4 Renewal -- 2004.......................................................................................................7
7.5 Renewal -- 2005.......................................................................................................7
7.6 Extension..................................................................................................................7
7.7 Holding Over...........................................................................................................7
ARTICLE 8 Fee For Services/Fee For Conducting Business......................................................7
8.1 Golf Services Receipts.............................................................................................7
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 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 Contract Documents, Entire Agreement. This writing, together with the exhibits hereto,
the Request for Proposal (#P-777)/Instructions/Specifications package, representations by the
Contractor during the Selection Interview, and Contractor's Proposal (including Annual Payment
Schedule Statement) constitutes the entire agreement between the parties, their officers,
employees, agents and assigns and supersedes all prior agreements, understandings, warranties
or promises between the parties hereto, whether written, spoken or implied from the conduct of
the parties hereto.
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 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 SouthRidge Golf Course and
surrender entire possession of its rights at SouthRidge Golf Course to City and its improvements
in accordance with Section 11 above, unless this Agreement is renewed or replaced.
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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
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: Dale W. Smigelsky
1301 Brittany Court
Fort Collins, Colorado 80525
To the City: Manager
Golf Division
City of Fort Collins
300 Laporte Avenue
P.O. Box 580
Fort Collins, Colorado 80522
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
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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 personal services. Accordingly, the Contractor shall neither assign any
responsibilities nor delegate any duties 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
written above.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
�
Carrie M. Daggett
Assistant City Attorney
THE CITY OF FORT COLLINS, COLORADO
unicipal Corporation
y�Q �
s B. O'Neill, II, CPPO
Director of Purchasing and
Risk Management
CO CTOR:
Dale W. Smigelsky
19
EXHIBIT A
SCOPE OF GOLF SERVICES
A. Contractor In General
1. Management and supervision of the golf course operations at the SouthRidge Golf Course,
including but not limited to, the general management of play on the course and driving range,
course monitoring (ranger/marshall functions), preparation and rental of City -provided golf carts,
golf lessons/instruction, golf club repair, tournament coordination, and the overall use and
management of the clubhouse (excepting the Restaurant/Snack Bar concession), including
without limitation the daily cleaning of the 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 use by customers of City -provided golf carts, including
without limitation the daily cleaning of the golf cart staging and cart storage areas.
4. Provision of starters, assistant golf professionals, course monitors (marshals/rangers),
cashiers, and other personnel as necessary to facilitate full and efficient use of the course and
other activities at the SouthRidge Golf Course.
B. Golf Professional
1. The Contractor shall devote his full time and attention as the primary golf professional for
the SouthRidge Golf Course during the entire calendar year. Upon submitting a request at least
three (3) days in advance and receiving the City's consent, he 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)
days annually.
2. The Contractor shall serve as the primary monitor (marshall/ranger) at the SouthRidge Golf
Course.
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 fixtures, merchandise, 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 abandoned golf balls in the lakes or ditches at
SouthRidge 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. Contractor shall not offer
for sale gift certificates, vouchers, punchcards, or other similar devices, except to the extent the
same are restricted and limited in duration to the term of this Agreement.
III. Fees. All fees and other income received through the operation of the pro shop, the sale of
merchandise, golf lessons/instructions, tournament service fees, golf club repair, 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 (except the
restaurant/snack bar area) and the golf cart storage area, hereinafter 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.
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.
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,
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 local telephone charges accruing as a result of calls by Contractor, its agents and employees.
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 Contractor/concession fees, with the Contractor paying for
their share of said service, and at the rate established by the City's bank.
EXHIBIT C
BACKGROUND CHECKS FOR POSITIONS OF TRUST
The Golf Professional and certain other positions to be utilized by Contractor in providing
services to the City under this Agreement have been designated by the City as "positions of
trust." Such positions include, but are not limited to, jobs where the employee or volunteer
regularly works with youths or other members of the general public, enters private homes or
property, or is responsible for accounting duties or management and control of City property.
Contractor will conduct a background investigation of persons to provide services to the City
in such positions. The investigation shall include, but is not limited to, checking arrests and/or
conviction records, driving records, credit history, previous employment and volunteer work, and
references, including review of any records or information available to the City as a result of past
employment or contractual relationships the employee has had with the Contractor or the City.
The Contractor shall make job assignment and responsibility assignments based upon and in
consideration of the background investigation, and shall not permit any person to perform any
position for which such person's character or suitability are reasonably in question based upon
the information obtained in connection with a background investigation. The City may, in its
discretion, object to any assignments of personnel to positions of trust by Contractor, based on
the background investigation. The City may provide assistance in completing the background
investigation, including providing the completed disclosure form to an outside vendor for a
confidential records check. Contractor acknowledges that by providing such assistance 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 or from Contractor's
failure to comply with any laws applicable to such investigations. Contractor shall be
responsible for assuring that any background check activities conducted by Contractor comply
with all applicable laws, including the federal Fair Credit Reporting Act.
Process for Obtaining Background Check Information
The Contractor shall use the following procedure:
Once an employee or volunteer selection or assignment for work under the Contractor
Agreement with the City is made, the employee or volunteer shall complete the background
check form attached to the Agreement as Exhibit D, which is titled "Disclosure to
EmployeeNolunteer Regarding Procurement of a Consumer Report (Including Criminal History
Report and Employment History Review)." The purpose of this form is to provide the necessary
information about an applicant and permission to review confidential information, so that the
Contractor can complete a thorough background check.
2. If the Contractor anticipates that the employee or volunteer will operate any vehicles or City
equipment in providing services to the City, a driving record check shall be conducted in
addition to a criminal check. The driving record check will be completed at the same time as the
background check.
3. When the employee/volunteer has completed and signed the form, the Contractor shall initial and
date the top of the form, and make two copies of the completed form, one to be retained by
Contractor and one to be provided to the City.
4. The Contractor is required to give each person undergoing a background check a summary of
his/her rights under the federal Fair Credit Reporting Act. This summary is attached to the
original form (see Exhibit D). The Contractor shall give the original Disclosure form with its
attachment (the summary) to the employee/volunteer. The Fair Credit Reporting Act also
imposes requirements and procedures related to any adverse decisions based upon credit
information.
5. The Contractor shall also require the employee or volunteer to complete the Request,
Authorization and Waiver form, attached to the Agreement as Exhibit E. The purpose of this
form is to authorize the City to release information regarding previous employment, if any, with
the City. This form must be notarized, and the original executed form provided to the City prior
to initiation of the background and employment history investigation.
8.2
Golf Services Fee.....................................................................................................7
8.3
Concession Fee/In-Kind Contribution.....................................................................8
8.4
Time of Payment......................................................................................................8
8.5
Interest on Past Due Amounts..................................................................................8
8.6
Method of Payment..................................................................................................8
ARTICLE 9 Utilities, Maintenance and Janitorial Duties............................................................8
9.1 Utilities.....................................................................................................................8
9.2 Maintenance and Repair...........................................................................................8
9.3 Cleaning and Janitorial............................................................................................9
ARTICLE 10 Acceptance and Trade Fixtures................................................................................9
10.1 Concession Space, City Equipment and Fixtures....................................................9
10.2 Acceptance........................................................................................................... 9
10.3 Installation of Equipment and Trade Fixtures.........................................................9
10.4 Removal of Equipment, Trade Fixtures...................................................................9
10.5 Title to Improvements..............................................................................................9
10.6 Applicable Law......................................................................................................10
ARTICLE 11 Damage by Contractor...........................................................................................10
ARTICLE 12 Total or Partial Destruction....................................................................................10
12.1 Concession Space or Other Major Component
Rendered Untenantable..............................................................................10
12.2 Concession Space Only Untenantable......................................................................11
12.3 Components Tenantable............................................................................................11
12.4 Removal of Rubbish.................................................................................................11
12.5 Exception for Damage Caused by Contractor...........................................................11
12.6 No Claim by Contractor............................................................................................I I
ARTICLE 13 Indemnification and Insurance...............................................................................I I
13.1 City's Liability ...........................................................................................................11
13.2 Indemnification.........................................................................................................11
13.3 Patent Representation................................................................................................12
13.4 Contractor Insurance.................................................................................................12
13.5 Precautions Against Injury ........................................................................................12
13.6 Failure to Insure........................................................................................................12
ARTICLE 14 No Interest in Real Property ..................................................................................12
ii
EXHIBIT D
DISCLOSURE TO EMPLOYEENOLUNTEER
REGARDING PROCUREMENT OF A CONSUMER REPORT
(INCLUDING A CRIMINAL HISTORY REPORT AND EMPLOYMENT HISTORY REVIEW)
In connection with your employment/volunteer status in connection with sensitive contractual services
being provided by your employer, (Contractor), to the City of Fort Collins, your
employer may procure a consumer report/criminal history on you as part of the process of considering
your role as an employee/volunteer, and may obtain information from and share the resulting information
with the City of Fort Collins for that purpose. The investigation conducted in conjunction with the report
may include an investigation of your personal employment/volunteer history, education, financial and
credit records, public records concerning your driving record, civil and criminal court records, county,
state and federal tax liens, notices of default and bankruptcies, and other records as may be appropriate.
In the event that information from the report is utilized in whole or in part in making an adverse decision,
effort will be made to provide you with a copy of the consumer report/criminal history and a description
in writing of your rights under the federal Fair Credit Reporting Act. The Fair Credit Reporting Act gives
you specific rights in dealing with consumer reporting agencies. A copy of A SUMMARY OF YOUR
RIGHTS UNDER THE FAIR CREDIT REPORTING ACT is attached to this document.
By your signature below, you hereby authorize (Contractor), and/or the
City of Fort Collins to obtain a consumer report and/or an investigative report about you in order to
consider you for employment/volunteer status, including any records related to previous employment or
contractual relationships you have had with the City of Fort Collins.
Applicant's Name:
(Please Print)
Applicant's Address:
City/State/Zip:
Signature:
Date of Birth:
Driver's License #
Social Security #:
Signature of Parent or Guardian (if applicant is under age 18):
Other Names Used in the Last Seven (7) Years:
Previous Out -of -State Address(es) in the Past Seven (7) Years:
2.
Address
City CountyState Zip Code
Address City CountyState Zip Code
Please list any additional addresses on the back of this page.
Give this disclosure with a copy of A Summary of Rights Under the Fair Credit Reporting Act to applicant.
Retain a copy of the release for your records, and provide a copy of the release to the City of Fort Collins.
EXHIBIT E
(page 1 of 2)
A Summary of Your Rights
Under the Fair Credit Reporting Act
The federal Fair Credit Reporting Act (FCRA) is designed to promote accuracy, fairness, and privacy of information in
the files of every "consumer reporting agency" (CRA). Most CRAB are credit bureaus that gather and sell information
about you -- such as if you pay your bills on time or have filed bankruptcy -- to creditors, employers, landlords, and
other businesses. You can find the complete teat of the FCRA, 15 U.S.C. §§1681-1681u. The FCRA gives you specific
rights, as outlined below. You may have additional rights under state law. You may contact a state or local consumer
protection agency or a state attorney general to learn those rights.
• You must be told if information in your file has been used against you. Anyone who uses information
from a CRA to take action against you -- such as denying an application for credit, insurance, or employment
-- must tell you, and give you the name, address, and phone number of the CRA that provided the consumer
report.
• You can find out what is in your file. At ,your request, a CRA must give you the information in your file,
and a list of everyone who has requested it recently. There is no charge for the report if a person has taken
action against you because of information supplied by the CRA, if you request the report within 60 days of
receiving notice of the action. You also are entitled to one free report every twelve months upon request if
You certify that (1) you are unemployed and plan to seek employment within 60 days. (2) you are on welfare,
or (.i) your report is inaccurate due to fraud. Otherwise, a CRA may charge you up to eight dollars.
• You can dispute inaccurate information with the CRA. If you tell a CRA that your file contains inaccurate
information. the CRA must investigate the items (usually within :0 days) by presenting to its information
source ail relevant evidence you submit. unless your dispute is frivolous. The source must review vour
evidence and report its rmdings to the CRA. (The source also must advise national CRAB -- to which it has
provided the data -- of any error.) The CRA must give you a written report of the investigation. and a copy of
your report if the investigation results in any change. If the CR-Vs investigation does not resolve the dispute,
you may add a brief statement to your tile. The CRA must normally include a summary of your statement in
future reports. If an item is deleted or a dispute statement is tiled. you may ask that anyone who has recently
received %our report be notified of the change.
• Inaccurate information must be corrected or deleted. A CR4 must remove or correct inaccurate or
unve:, .ed information from. its tiles, usually within :0 days afrer you dispute it. However. the CR-k is not
required to remove accurate data from your file unless it is outdated (as described below) or cannot be
verified. If %our dispute resuits in any change to your report, the CR.-k cannot :,-inserr into vcur file a disputed
.rem unless ;::^.z information source verges its accuracv and comoteteness. In addition. the CZ-1 must give
you a %,�Tinzn notice :eiling you it has reinserted the item. The notice must include tie -lame. address and
phone number of the infonnaron source.
• You can dispute inaccurate items with the source of the information. Ifvou tell anyone — such as a
creditor who recons to a :hat .,ou dispute an item. rhev may nor :.hen reporr -,"e information to a CRA
,.vithcut Inc:—ding a notice of our discure. In addition. once you %e nonried the source of the error in writing,
it may not continue :o repor. the infor,.:arion it it is. in fact. an error.
• Outdated information may not be reported. In most cases. a CZ-� may not -eoor -es_ztiyz nformation :hat
is more than _even ,ears oic :en years for bankrucrc:es.
• access to your rile is limited. -. CRA ^av provide M.-Ormation Grout :ou oniv :o _eopie .vtL a eed
ce�ized ::he FC2-\ -- osuaily to consider an acciicarion .vide a crediror. Insurer. -moioyer. ianalorq. or
EXHIBIT E
(page 2 of 2)
other business.
• Your consent is required for reports that are provided to employers, or reports that contain medical
information. A CRA may not give out information about you to your employer, or prospective employer,
without your written consent. A CRA may not report medical information about you to creditors, insurers, or
employers without your permission.
• You may choose to exclude your name from CRA lists for unsolicited credit and insurance offers.
Creditors and insurers may use file information as the basis for sending you unsolicited offers of credit or
insurance. Such offers must include a toll -free phone number for you to call if you want your name and
address removed from future lists. If you call, you must be kept off the lists for two years. If you request,
complete, and return the CRA form provided for this purpose, you must be taken off the lists indefinitely.
• You may seek damages from violators. If a CRA, a user or (in some cases) a provider of CRA data, violates
the FCRA, you may sue them in state or federal court.
The FCRA gives several different federal agencies authority to enforce the FCRA:
FOR QUESTIONS OR CONCERNS REGARDING PLEASE CONTACT
CRAB, creditors and others not listed below Federal Trade Commission
Consumer Response Center- FCRA
Washington, DC 20530 * 202-326-3761
National banks, federal branchesiaeenciesof foreign Office of the Comptroller of the Currency
banks (word "National" or initials "N.A." appear in or Compliance Management, Mail Stop 6-6
after bank's name) . Washington, DC 20219 * 300-613-6743
Federal Reserve System member banks (except national Federai Reserve Board
banks. and federal branches/agencies of foreign banks) Division of Consumer & Community Affairs
Washin; on, DC 20551 * 202-452-3693
Savinss associations and federaily c: artered savings Office of Thrift Supervision
banks (word "Federal" or initials "F.S.B." appear in Consumer Prosrams
federal institution's name) Washington D.C. 20552* 300- 342-6929
Federal redit unions (words "Federal Credit Union" National Credit Union .administration
appear in insritution's name) 1775 Duke Street
le-andria. VA =314 * 703-513-6360
State -chartered banks char are not members of the Federal Deposit Insurance Corporation
Federal Reserve System Division of Comciiance & Consumer Affairs
Washington. DC=0429 * 300-934-FDIC
.air, surface. or rail common careers rc_ulaced by Deparment of T:ansporration
former Civii .aeronautics Board cr Interstate Commerce Office of Financiai Management
Commission Washington. DC 29590 * 202-366-1306
-�et:viries subject to the Packers and Stocicvards Act. Department of Aaricukure
1921 Cffice of Dec un- administrator-GIPSA
Washington. DC 10250 * 202-720-7051
EXHIBIT F
MONTHLY PAYMENT SCHEDULE
2001
$
$4,583.33
$
$55X0
2002
$
$4,766.66
$
$575200
2003
$
$4,957.33
$
$595488
2004
$
$5J55.66
$
$615868
2005
$
$55361.91
$
$64,343
EXHIBIT G
CITY -OWNED INVENTORY
Public Address System
Safe (bolted)
Window Coverings
Cash Drawers
Receipt Printers
Pro Shop Counter
All Oak Shelving and Paneling
Hanging Fan
Track Lighting
Six -Foot Oak Rental Club Compartment
Driving Range Distance Markers
As of 12.18.00
EXHIBIT H
CONTRACTOR -PROVIDED PERSONAL PROPERTY
(To be completed by 04.01.01)
EXHIBIT I
INSURANCE LIMITS
1. $500,000 -- Combined Single Limit for Personal Injury And/or Property Damage
2. Statutory -- Workers' Compensation Coverage A
3. $100,000/$100,000/$500,000 -- Workers' Compensation Coverage B
Adminiz,-.ative Services
Purchasing Division
City of Fort Collins
December 15, 2000
Derek M. Cordova
1200 Paragon Place
Fort Collins, CO 80525
RE: OFFER OF SETTLEMENT
SouthRidge Golf Course Golf Services Agreement (dated December 19, 1997);
Closeout of Extraordinary Matters
Dear Mr. Cordova:
In addition to the routine accounting for year 2000 fees and revenues, which I understand is
proceeding in accordance with the usual practice, there are two extraordinary issues that have
arisen in connection with the closeout of the above -referenced Agreement. These issues are as
follows: 1) you have offered to sell to the City and the City has offered to purchase certain
improvements and property that you have installed or used in the performance of the
Agreement; and 2) you have indicated that you believe you are entitled to compensation from
the City in the amount of $10,200, based on certain aspects of the Proposal that you submitted
in 1997 regarding terms upon which you proposed to provide golf services at SouthRidge.
Based on the information that has been provided by you to Jerry P. Brown, Manager of Golf,
and my discussions with him, we are proposing the following offer of settlement of those issues.
1. The City agrees to purchase the items listed in the attachment to this Offer from you for the
total amount of $7,000, to be paid to you after the final reconciliation of all fees and other
amounts due under the Agreement. The items shall remain at the SouthRidge Pro Shop after
the expiration of the Agreement, and the City shall retain possession of those items pending the
final reconciliation and payment if any amounts due. By your signature below, please indicate
your agreement to this settlement of this issue in the manner described herein.
2. The City disagrees with your assertion that the City is obligated to make payment to you for
improvements that you completed at the SouthRidge Pro Shop. However, in order to resolve
the dispute in this regard, and by so doing minimize the associated cost and delay, the City
agrees to pay to you the amount of $5,100 in exchange for a full and final release by you of any
claim for further payment under the Agreement. This amount would be paid to you after the
final reconciliation of all fees and other amounts due under the Agreement, together with the
$7,000 described in paragraph 1, above.
256 W Mountain Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6775 • FAX (970) 221-6707
This Offer of Settlement constitutes a confidential settlement discussion, and is intended for the
purpose of resolving disputed matters related to the above -referenced Agreement. If you agree
to the terms of this Offer of Settlement, as described in both numbered paragraphs 1 and 2,
above, please sign in the space indicated below and return the signed document to me or to
Jerry P. Brown no later than December 18, 2000, in order to document our written agreement as
to these matters.
Sincerely,
� 0 �6� `cam
Jam s B. O'Neill II, CPPO
ctor of Purchasing and Risk Management
I, Derek M. Cordova, acknowledge and agree to be bound by
the terms of this Offer of Settlement, as described in foregoing
numbered paragraphs 1 and 2.
J�3ula/h`Cr.clv�- l2 � i ti �ui:
Derek M. Cordova Date
Attachment
cc: Jerry P. Brown, Manager of Golf
ARTICLE15 Assignment............................................................................................................12
ARTICLE 16 Right of City to Enter, Inspect and Make Repairs.................................................12
16.1 In General..................................................................................................................12
16.2 Obstruction by City...................................................................................................13
16.3 Obstruction by Contractor.........................................................................................13
16.4 No Eviction or Abatement........................................................................................13
ARTICLE17 Default, Rights of Termination..............................................................................13
17.1 Default by Contractor...............................................................................................13
17.2 Cities Remedies on Default.......................................................................................14
17.3 Rights and Remedies Reserved.................................................................................15
ARTICLE 18 Miscellaneous Provisions.......................................................................................15
18.1 Cumulative Rights....................................................................................................15
18.2 Non-Waiver...............................................................................................................15
18.3 Non -liability of Individuals Other than Contractor..................................................15
18.4 Limitations on Use....................................................................................................15
18.5 Governing Law.........................................................................................................16
18.6 Benefits.....................................................................................................................16
18.7 Construction..............................................................................................................16
18.8 Successors and Assigns.............................................................................................16
18.9 Headings...................................................................................................................16
18.10 Attorney Fees...........................................................................................................16
18.11 Contract Documents, Entire Agreement..................................................................16
18.12 Severability..............................................................................................................16
18.13 Surrender of Possession...........................................................................................16
18.14 City Representative..................................................................................................17
18.15 Notices.....................................................................................................................17
18.16 Schedules and Exhibits............................................................................................17
18.17 Force Majeure..........................................................................................................17
18.18 No Limitation on General Powers...........................................................................17
18.19 No Relationship.......................................................................................................17
18.20 Personal Services.....................................................................................................18
18.21 Survival....................................................................................................................18
iii
ATTACHMENT
Items Purchased from Derek M. Cordova
Pro Shop Counter
All Oak Shelving and Paneling
Six -Foot Oak Rental Club Compartment
Hanging Fan
Track Lighting
Driving Range Distance Markers
12. t s.00
SOUTHRIDGE GOLF COURSE
GOLF SERVICES AGREEMENT
This Golf Services Agreement, hereinafter called the "Agreement," is made and entered into
as of the 19th day of December, 2000, by and between THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation, hereinafter called "City," and Dale W. Smigelsky,
hereinafter called "Contractor", regarding certain services to be provided at the SouthRidge Golf
Course, 5750 South Lemay Avenue, Fort Collins, Colorado, 80525 (the "Golf Course").
WITNESSETH:
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
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").
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 (except the restaurant/snack bar concession area) at the Golf
Course.
ARTICLE 4
Contractor's Use of the Concession Space
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 Designation of Smoking Areas. The City shall designate smoking and non-smoking
areas of the Concession Space in compliance with the applicable Fort Collins City ordinance.
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.
11.71YryMAR
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
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the Concession Space only high quality merchandise and products. If, in the opinion
of the City, the selection 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 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 6:30 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 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.
6.3.1 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
workine on behalf of 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 and volunteers of 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 youth and other 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 C, consisting of
two (2) pages, attached hereto and incorporated herein by this reference, shall be screened
using the background screening procedure described on Exhibit C, 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 form attached hereto as Exhibit D, consisting
of three (3) pages and incorporated herein by this reference, and the 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 of
the Summary of Rights under the Fair Credit Reporting Act included as part of Exhibit E.
6.3.2 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.
6.3.3 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, competence 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.
6.3.4 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.
6.3.5 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 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 that Contractor,
or the individual Golf Professional, 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
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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 golf 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.
6.4 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 and acceptable accounting practices 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.
6.5 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.
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