HomeMy WebLinkAboutDAVID R MCCLEAVE - CONTRACT - RFP - P911 CITY PARK NINE GOLF COURSE GOLF PROFESSIONALGOLF SERVICES AND CONCESSION AGREEMENT
CITY PARK NINE GOLF COURSE
FORT COLLINS
COLORADO
November 28, 2003
C. Replacement mats for the driving range in 2006.
8.4.2 All items purchased pursuant to this section shall be new and of a type
and quality comparable to or better than the existing equipment, shall be
purchased only after consultation with and approval of the City, and shall become
the property of the City upon installation.
8.5 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.
8.6 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.
8.7 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.
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
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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.
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.
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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.
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
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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 Maior 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.
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.
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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 Iniury. The Contractor shall take all necessary
precautions in performing the operations hereunder to prevent injury to persons and
property.
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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:
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
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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 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
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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 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
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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.
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 terns 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.
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18.5 Govemina 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 Incorporation of Request for Proposals/Entire Agreement. Request for
Proposal Number P-911, 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
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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 28th day of November, 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 David R. McCleave, 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").
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
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").
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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: David R. McCleave
813 37t' Avenue #1
Greeley, Colorado 80634
To the City: Manager
Golf Division
City of Fort Collins
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 Maieure. 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
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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 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 cant' 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.
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By.
m B. O'Neill, II, CPPO, FNIGP
tor
of Purchasing and
Risk Management
ATTEST:
. . A hk�7
City Clerk,f4
APPROVED AS TO FORM:
Assistdril City Attorney
Contractor:
[JJV /�nWr
/l, ,
David R. McCleave
STATE OF COLORADO )
)ss.
COUNTY OF 4,arikher
Subscribed and sworn to before me this Q5iLA day of
A/6 y&nker , 200,1t by _ David P . tw ele-tvtl
Witness my hand and official seal.
My commission expires: I?I -Z-2, 0 lv
Wary Public
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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 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 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.
EXHIBIT B
SCOPE OF PRO SHOP AND DRIVING RANGE SERVICES
Pro Shoo 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.
V.
V. Maintenance and Reaairs.
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
ii
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.
Vill. 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 specked 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.
i„
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").
EXHIBIT D.
aty ofFort Collis
Cidtar A Library' and Recreatia W Setvioes
GoWbivisien
OfTrusust�r P Conduct and Demeaaor, And Baciround Smwaing for Pow
Under tbe terms and conditions of each respective Cor's
Professionals and Resta�u� Bar G� � � � , aIt Golf
their employees, volur and o WmCtwt manor of
woffin on bob& of the in. � or of the . that y� bo
proYide to 1 t�ty at all times a +tW'nt FW W WTioes to the City. - The C�actor
s to
�s ofCor B,at wr�l be �°�' and odrer � a.
tuxkr their Agreantetr� and chat on behalfofthe C�ntracior mproy�g M.vioes to the City
Of COatcadw Agee to Whom to ffie'Beha�� � Cmdm�� its
Contrwtor will roquim l and O0 services provided by the
e�uployms, volaiatears, and other� or �ts-of
fie C7outraator act is "pasifiot�s of torsi" which can inslude rho ham of and/er� funds of tbo CRY and/or of wing jr
pubric• A000 , oath ' °r daect oor with y and man°bera of �e g ord
� ages of � Wm � all • d , or offier
expense of fire Co Oe iha QS ft � ba fra�st nd be ace mod& vwu&*d at ffie
as desmribed in each respectiye Comttacpor's Agneemo� WM 6 Pie .
shalt be the r+vlts of sack d
provided to the CRY prior to any MWh pis � in the Pm as dascxr'bed in ead► r dive Cotz s Bach Co�aclor shall completion and eaooct�tian of the 1?isolosatdyfiandA f%M for all ape�fied
fOumfim AM an eragruxis off ThepMOm of8us form istopr�ovid8
�i� wd petudwion to rerkw mat lion for a
hadVvmd >nywligatwm The 000hudw shall
eropioyw4 volunt ors, and other �m or 3 K to all said
QvditReportiugAvL a of Rights tinder the Fair
6mmineU' 'on shall iac1udc� �
but is not nooemruy li�w to g
vidion ,driving reoords, cnodit history, , pmyiom M IVfMa
and volwueer worse and otherrcw ds as may bo appropriate, and rcfe includingreykw of my
room* of information mikbla to the (Sty as a rrsult of past wiptoyment or cordractual
oY�, voluntoor, or other rapresw"" or agent has had wig Bic C yr or the CRY.
The Cfty win Pmvrde aML46 oo in ONW10ft Oho baclWound scaceinemVestigatiM inChuling
pwylft the completed dimlosme form to an outside vendor for a eonfiideatial records chwL
Contractor acknowledges that by lxovii ft such asastmm the CSty assumes no r�eq*wiibi sty for the
thadmess, a cy of completeness of the backgroundindirod srxeenitq�tnvesgg o4 or for duod or
any injuty ���� �e sumo, and ffie Cmhacter "hold the City ha Min for
page 1 of 2
the COInUmtor dm l malm job axis and rcqxmmUq assignments basil upa and in
consideration of tie backgavund vmctnWnnTqQSdion, and sal not permit any parson to pelt
any positcan for which suds pesaon� c� or sabiTcty otm
are reasonably m question based upon
the A&mU m obtained m conatdim with a �y nOaY. is
its �saetion, object do any asskMM is of C�acUor pp � as baMd UpM
*0 ba*ground srx lm y ion. h the event &d M&m=fion frcm fic report is UffmDd in
whole or in part in making an adverse deimon with »Sad to pots
before MakinglOe adverse do dsim the City wy
aitemptfoprovide Coocwi9i a copy ofee Consama'repoat/cximinal bisioay:
Spovirw employees, vvlunteem and other or agauts of Cmtradoas i&nda d at 6iis
time to be in positions of truss shall Wok but ace not neoess*djy linjtod to, all top as bftMts, a =
or section maaagw, k=m PmyidcM persomd that dhwdy handle and/or awout.for City funds;
and those positions fiat can w odc individually with youth or manbers of file gecww public.
CMb---" or Process for OMaieiag BachRmand �fioa Information
1. Onoe as anpioyee, volunleey otter a agecct hacs been seIoded by hie Oocdor,
6cc employee, Yolontee4 dher rgcwoutat" or agent iaq ) shall cmV" the
sm oaaingfmvestigdion form, which is fw Tisabsime tie hospad m Hmploy+om volaa
orOOWRepra=btdlmcrAgentsofCoacacdodRegavngpjomvvnwffofa ODnsugwrpjpmt
(meluchnga mminamstwYiep"V
2. Whom the mgd"M volantoar, o%w Mmmbtwp or agent (appTicUO lies Completed and
signal ft fomM6 tho CoftftavW shall MW and lobo the bottom of do fcrcq .giving 6x bottom
Dopy of t k foam to the appl'aRni. MW Contractor aims also give to tiro offficw at bus lima a
vommwofhls&wneftmdcrdlofodcWFSWQvCdRcpmftAoL TheFairCmMRtgmfiag
Act Am imposes roquhuncals.and pmoadcmes related to any admw dDvidowband Won reedit
infomoatcon.
3. Ilia Coactcadcr bmp one Copy of do foam and forwards flee od&%d dpod oapy ofee fecm to
lie GolfDivis M Alaskan office In mow to a pedite do paommbg tines the Mahador
may also FAX a Copy or bring fire atinal oopf of hie form to the Golf Dtvisim Adminisicafiro
Aide. OamfioAdwMskvtivoAide eatasiho form inf cnation into&oonvoptP4 it talm fim
to four days for the CWv. contcadcd tia� mcco nglimestivoon fiam to perform their
serrim.
4. Because of 6ce large number of applicants being ww mW using lhis similar prows, gm shall
be no nofffca6on to the Contcador unless an applicant receives a negative report Via& four
days of t6 time fact the Adminiskaft Aide Wt= 6e i bOOiion into 90 Computer.
',Odom, fho applicant may begin M*mmt for 60 Contraedw aaw fora days unless hie
Coadcactot is notified oGawisa. However, bo aware the it is possible fiat we eoald room m a
negative report after faar days, and we wiff bare to addmss 6io dGaation at #at time.
RB 03.22.01
page 2 of 2
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
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 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
3
EXHIBIT E
DISCLOSURE TO PROSPECTIVE EMPLOYEES, VOLUNTEERS, OR
OTHER REPRESENTATIVES OR AGENTS OF CONTRACTORS REGARDING
PROCUREMENT OF A CONSUMER REPORT
(including a criminal history report)
In connection with your status as a prospective employee, volunteer, or other representative or
agent of the Contractor, Contractor and the City of Fort Collins may procure a consumer
report/criminal history on you as part of the process of considering your candidacy for said
status. 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 with regard to your potential employment/volunteer/representativelagent status, before
making the adverse decision, the City and the Contractor will attempt to provide you and the
Contractor 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 us to obtain a consumer report and/or an
investigative report about you in order to consider your status as a prospective employee,
volunteer, or other representative or agent for the Contractor.
Applicant's Name:
(Please Print) First Middle Lai
Signature: Date of Birth:
Applicant's Address:.
City/State/Zip:
Driver's License #:
Social Security #:
Signature of Parent or Guardian (if applicant is under the age of 1 g):
Other Names Used in the Last Seven (7) Years:
Previous Out -of -State Address(es) in the Past Seven (7) Years:
1.
Address City County State Zip
2.
Address City County State Zip
Please list any additional addresses on the back of this page.
Contractor's Initials: Date: City Staff Initials: Date:
EXHIBIT F
(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 text of the FCRA,15 U.S.C. H1681-1681u. 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 fife. At your request, a CRA must give you the information in your fill,
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 onb free report every twelve months upon request if
you certify that (1) you arc unemployed and plan to seek employment within 60 days, (2) you are on welfare,
or (3) 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 30 days) by presenting to its information
source all relevant evidence you submit, unless your dispute is frivolous. The source must review your
evidence and report its findings 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 CRA's investigation does not resolve the dispute,
you may add a brief statement to your file. The CRA must normally include a summary of your statement in
future reports. If an item is deleted or a dispute statement is filed, you may ask that anyone who has recently
received your report be notified of the change.
Inaccurate information must be corrected or deleted A CRA must remove or correct inaccurate or
unverified information from its files, usually within 30 days after you dispute it. However, the CRA is not
required to remove accurate data from your file unless It is outdated (as described below) or cannot be
verified. If your dispute results in any change to your report, the CRA cannot reinsert into your file a disputed
item unless the information source verifies its accuracy and completeness. In addition, the CRA must give
you a written notice telling you it has reinserted the item. The notice must include the name, address and
phone number of the information source.
• You can dispute inaccurate items with the source of the information. If you tell anyone — such as a
creditor who reports to a CRA — that you dispute an item, they may not then report the information to a CRA
without inc'.uding a notice of your dispute. In addition, once you've notified the source of the error in writing,
it may not'continue to report the information if it is, in fact, an error.
• Outdated information may not be reported. In most cases, a CRA may not report negative information that
is more than seven years old: ten years for bankruptcies.
• Access to your file is limited. A C.IRA may provide information about you only to people with a need
recognized by the FORA — usually to consider an application with a creditor, insurer, employer, landlord or
EXHIBIT F
(page 2 of2)
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 firture lists. If you call, you must be kept off the lists for two years, Ifyou
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 20580 * 202-326-3.761
National banks, federal branchestagencies of foreign Office of the Comptroller of the Currency
banks (word "National" or initials ":IA." appear in or Compliance Management, Mail Stop &6
after banks name) Washington, DC 20219 * 800-613-6743
Federal Reserve System member banks (except national Federal Reserve Board
banks, and federal brancheslagencies of foreign banks) Division of Consumer & Community Affairs
Washington, DC 20551 * 202452-3693
Savings associations and federally chartered savings Office of Thrift Supervision
banks (word "Federal" or initials "F.S.B." appear in Consumer Programs
federal institution's name) Washington D.C. 20552* 800- 842-6929
Federal credit unions (words "Federal Credit Union" National Credit Union Administration
appear in institution's name) 1775 Duke Street . '
Alexandria, VA'_2314 * 703-518-6360
State -chartered banks that are not members of the
Federal Reserve System
Federal Deposit Insurance Corporation
Division of Compliance & Consumer Affairs
Washington, DC 20429 * 800-934-FDIC
Air, surface, or rail common carriers regulated by Department of Transportation
former Civil Aeronautics Board or Interstate Commerce Office of Financial Management
Commission Washington, DC 20590 * 202-366-1306
Activities subject to the Packers and Stockyards Act, Department of Agriculture
1921 Office of Deputy Administmtor-GIPSA
Washington, DC 20250 * 202-720-7051
EXHIBIT G
MONTHLY GOLF SERVICES FEE PAYMENT SCHEDULE
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
ii
EXHIBIT I
CONTRACTOR -PROVIDED PERSONAL PROPERTY
(TO BE PROVIDED NO LATER THAN MAY 1, 2004)
EXHIBIT J
INSURANCE LIMITS
1. $150,000 — Liquor Liability
2. $1,000,000 --Commercial General Liability with Combined Single Limit; $2,000,000 Aggregate
3. Statutory-- Workers' Compensation Coverage A
4. $100,000/$500,000/$100,000 -- Worker's Compensation Coverage B
5. $1,000,000 --Products Liability
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 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
modem 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
September, from at least 6:00 A.M.
remain on the course);
April, May, June, July, August and
through sundown (or later if golfers
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);
4
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 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,
5
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 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;
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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. Recordkeeoing 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 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.
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.
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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 $ 45,000 in 2004; $ 47,000 in 2005; $ 49,000 in 2006;
$ 51,000 in 2007; and $ 53,000 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 the sum of $3,600 or $300 per month in 2004, 2005 and
2006, and $4,800 or $400 per month in 2007 and 2008.
8.4 Clubhouse and Driving Range Improvements.
8.4.1 As additional consideration for the privileges granted hereunder, the
Contractor agrees to purchase at Contractor's sole cost and expense, the
following items:
A. New tables and chairs for the sitting area of the clubhouse in 2004;
B. Three (3) new color television sets for the clubhouse in 2005;
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