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Res 006-2012 2/7/2012 RESOLUTION NO. _06-2012_ Resolution Authorizing The City Manager To Execute A Contract Renewal With A-Perma-Green-Lawn (APGL) For Management Of The Champions Course At Weeks Park For An Additional Three Year Term WHEREAS, the City has contracted with A-Perma-Green-Lawn (APGL, Inc. or APGL) for management of the Champions Course at Weeks Park since August 2008; WHEREAS, the existing contract expires in September 2012; WHEREAS, City Council finds that the management services purchased pursuant to this contract are “predominantly mental and intellectual, rather than physical or manual” and that the procurement represented by this contract is exempt from an obligation for competitive bidding pursuant to TLG’C§252.022(a)(4) EXAS OCAL OVT ODE as a procurement of professional services; WHEREAS, the City Council finds that cost effectiveness, management continuity, and marketing consistency warrant the continued use of APGL to manage the Champions Course on behalf of the City; and WHEREAS, the City Council and APGL desire to extend this agreement for an additional three-year term and make certain modifications to the agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: Agreement The City Manager is hereby authorized to execute the attached with APGL for management of the Champions Course at Weeks Park for an additional three- year term, a copy of which is attached hereto, and made a part of this resolution with such changes as are approved by the City Attorney. PASSED AND APPROVED this the 7th day of February, 2012. ______________________________ M A Y O R ATTEST: _______________________________ City Clerk WICHITA FALLS MUNICIPAL GOLF COURSE (WEEKS PARK) AND PRO SHOP AND CLUBHOUSE INCLUDING COURSE MAINTENANCE, MANAGEMENT SERVICES AGREEMENT For and in consideration of the covenants and agreements contained herein, and in order to obtain the mutual benefits provided herein, this agreement is made and entered by and between the CITY OF WICHITA FALLS, TEXAS, a home-rule municipality (hereinafter referred to as the “City”) and A.P.G.L., Inc., (hereinafter collectively referred to as the “Contractor”). Article I. Grant and Term (A) Grant. City hereby retains Contractor to operate and manage the Wichita Falls Municipal Golf Course (Currently knows as The Champions Course at Weeks Park and referred to as “Golf Course”) and Pro Shop and Clubhouse (hereinafter collectively referred to as the “Pro Shop”) located at 4400 Lake Park Drive, Wichita Falls, Texas, and to serve as General Manager for the Wichita Falls Municipal Golf Course including the collection of payments for golf play (“green fees”), tournament pavilion rental fees, golf cart rental fees, and other fees and revenues generated from the operation of the Golf Course. Contractor covenants and agrees to utilize its professional skills and abilities to operate and manage the Golf Course and Pro Shop in accordance with the terms and conditions hereinafter provided and set forth. (B) Reporting Structure. Contractor shall report to the City Manager or a designated representative of . the City Manager (C) Initial Term. Subject to Article X, Paragraph (D), the initial term of this Agreement shall be for the period commencing on February 1, 20012 (“Start Date”) and ending on September 30, 2015. With the exception of the year 2012, the City may annually terminate this contract early with or without cause by st written notice to Contractor on or before June 1 of any year, with such termination becoming effective on the following September 30, although: (1) any termination to be effective September 30, 2013 will result in a City obligation to pay Contractor $_________ on or before September 30, 2013 for the amount owed to Contractor of Exhibit D the Capital Improvements outlined in that were partially paid for by the Contractor in 2012, and any amount remaining on the equipment lease described in the attached Equipment List; and (2) any termination to be effective September 30, 2014 will result in a City obligation to pay Contractor $_________ on or before September 30, 2014 for the amount owed to Contractor of Exhibit D the Capital Improvements outlined in that were partially paid for by the Contractor in 2012. (3) any termination to be effective September 30, 2015 will result in a City obligation to pay Contractor $_________ on or before September 30, 2015 for the amount owed to Contractor of Exhibit D the Capital Improvements outlined in that were partially paid for by the Contractor in 2012. (D) Renewal Term. Thereafter, the Agreement shall be extended for consecutive one-year periods, unless either party gives written notice terminating the Agreement not less than one hundred twenty (120) days prior to the expiration of the Initial Term, or any subsequent term, as the case may be. Article II. Scope of Contractor Services and Duties (A) Management Services. Contractor shall provide all professional services necessary to operate the Golf Course including, without limitation, the planning, coordination, supervision, and management of all aspects of Golf Course maintenance and operations. Contractor shall operate and manage the Golf Course in a manner comparable to courses of a similar level of player capacity and use and having a Exhibit “A” similar level of facilities as given in . (B) Golf Carts. The City shall lease or purchase from a vendor golf carts for rent by players at the Golf Course in sufficient numbers to meet anticipated player needs including such spare parts, extra batteries, additional tires, and other equipment necessary to keep such carts in proper operating condition. Contractor shall be responsible for all maintenance of these carts and shall maintain them in proper operating condition. The carts shall be cleaned and maintained on a daily or other regular basis consistent with the season and player demand. (C) Supplies. Contractor is responsible for all operating supplies, including office supplies, maintenance supplies (including seed, sod, fertilizer, etc), and janitorial supplies, necessary for the operation of the facility. “Facility” for the purposes of this contract, shall include the Golf Course, clubhouse, and all other buildings contained on the Golf Course property. Expenses associated with the provision of these supplies are to be reimbursed in accordance with Article 6, Section B. (D) Personnel. Contractor will provide such personnel as may be necessary to staff the Pro Shop, Golf Course Maintenance, Food and Beverage Operations, Driving Range, and Golf Cart Operations. The personnel shall display at all times customer service through courtesy, prompt service, and knowledge of business. Contractor shall employ or contract for no less than one head professional and one assistant golf professional, consisting of persons who have obtained or who are attempting to obtain certification from the Professional Golf Association of America, and a General Manager who may or may not also serve as the Head Professional, to be the onsite manager for the Contractor. In the event that the General Manager is also serving as Head Professional, Contractor shall have at least one assistant golf professional on staff at the Golf Course. Contractor shall employ or contract for a qualified and experienced golf course Superintendent. Expenses associated with the provision of these personnel are to be reimbursed in accordance with Article 6, Section B. City will notify Contractor, in writing, of any problem or concerns it may have with any Contractor employee and Contractor will conduct an immediate investigation. Contractor will then take appropriate action in response. Contractor will provide a written, timely report to the City indicating the outcome of the investigation, and any actions taken. Contractor agrees that all personnel handling cash or accounting records shall have a criminal background check conducted prior to their assuming those duties. (E) Comp Rounds. Contractor may waive greens fees for members of the Professional Golf Association, the Golf Course Superintendent Association, the local public high schools, or for other City sanctioned events in order to promote the Golf Course and the good will of Contractor and the City. Contractor shall keep records of the names and numbers of players for whom greens fees were waived and the purpose of such waiver. City may review those records to ensure that such waivers are not excessive and are related to the promotion of the Golf Course. (F) Hours of Operation. The parties agree the Pro Shop will remain open to the public at all times when the Golf Course is open for play. The Golf Course will be open every day, although it may be closed on th December 25 or other dates with adequate notice to the public and with prior approval of the City. The hours of operation for the Golf Course shall begin at sunrise and end after sunset, unless inclement weather prohibits the reasonable use of the Golf Course; provided, however, the opening of the Golf Course may be delayed on Mondays until 11:30 A.M. to allow for maintenance and upkeep of the Golf Course. The Pro Shop and food and beverage operations may remain open for longer hours, at the Contractor’s discretion. Service of alcoholic beverages are subject to rules and regulations of the Texas Alcoholic Beverage Commission. (G) Equipment Rental. Contractor, at his expense, shall have the exclusive right and make available for rental by the public such golf clubs, bags, and pull carts as may be necessary. Contractor shall be responsible for all maintenance and replacement of these items, and agrees to keep the same clean and in good and safe operating function at all times. All such proceeds from the rental of this equipment shall be retained by Contractor. (H) . Pro Shop MerchandiseContractor shall make available for purchase by the public at the Pro Shop a variety of golf-related supplies and equipment including clubs, bags, gloves, shoes, balls, clothing and other such items. Contractor will maintain an inventory of such merchandise having a wholesale value of not less than $15,000. The merchandise will reflect the demographics of the clientele of the Golf Course, including having a suitable selection of soft and hard goods for women golfers. The cost of goods sold shall be the Contractor’s sole responsibility, and proceeds from the sale of Pro Shop Merchandise shall be retained by Contractor. Contractor shall provide pencils and scorecards at no cost to customers, with such costs to be reimbursed by the City in accordance with Article 6, Section B. (I) Repair and Maintenance. Contractor shall recommend and make available to the public reliable sources for golf club repair and equipment maintenance services. (J) Teaching Program. Contractor will offer on a continuing basis a comprehensive teaching program including private lessons, group lessons and clinics to members of the public. Contractor may collaborate with Parks and Recreation Department to offer and promote golf programs, particularly for youth. Such teaching programs shall be adequate to meet the demands of the public and offered by trained and qualified golf instructors. All expenses of the teaching programs shall be reimbursed by the City in accordance with Article 6, Section B, but proceeds from the Teaching Program shall be retained by Contractor. (K) Golf Course Marketing/Promotion and Programs. Contractor will implement marketing and promotional programs and conduct activities at Contractors’ expense to promote public interest in the game of golf and to promote use and enjoyment of Weeks Park Golf Course. The annual marketing program is subject to the following conditions: (1) Contractor agrees to promote Weeks Park Golf Course by providing and updating a Weeks Park Website with current program/activities and other informational content. This website should be consistent with or better than those maintained by comparable courses in the Region, including the Dallas-Ft. Worth market. (See “Exhibit A” for a list of comparable courses). The website will contain at a minimum: a. Current Fees, including green fees, specials, cart fees, range fees and annual passes b. Replica of current scorecard c. Layout of course d. Pictures of the facility e. Facility history and description f. Contact information g. Place to sign up for emails h. Directions to the facility (2) City shall have the right to approve of all advertising used in promotion of Weeks Park Golf Course. However, such approval shall not be unreasonably withheld. (3) Contractor shall spend no less than $10,000 towards advertising and promotions on an annual basis. This amount shall be reimbursed by the City in accordance with Article 6, Section B. (L) Marshalling and Starter Services. Contractor will provide marshalling and starter service at the Golf Course to meet the course demands. The City encourages the development and use of a “play for pay” program to staff the marshalling and starter programs. (M) Concessions. Contractor is obligated to provide and operate food and beverage concessions to the public on the Pro Shop and Golf Course premises, including acquisition and maintenance of the necessary Texas Alcoholic Beverage Commission licenses and/or permits sufficient to offer a variety of alcoholic beverages at the Facility. Contractor shall provide a diverse menu of food choices consistent with the capability of the food service equipment at the club house facilities. All proceeds from the food and beverage concessions shall be retained by Contractor. Expenses of the food and beverage concessions are NOT reimbursable by the City. With respect to the food and beverage concessions, the City is merely a licensor pursuant to this contract, and does not control the licensing, safety, reporting, or any other aspect of providing food or beverages to the public. This contract does not waive or otherwise affect the regulatory authority of the City to inspect the food and beverage operations to ensure proper permitting and compliance with ordinances designed to protect the health of the public. Expenses of maintenance and repair of fixtures to the real property and kitchen equipment owned by the City necessary to maintain the concessions shall not be considered to be subject to the maximum expenditure limit. (N) “Lost” Golf Balls. Contractor shall have the exclusive right to retrieve “lost” golf balls from the ponds, and to reuse or sell those balls. The proceeds from the sale of these balls shall be considered as part of “merchandise sales” (Article 2, Section H) for the purpose of this contract. (O) Contractor shall lease maintenance equipment necessary to maintain the Course in conditions to the quality of courses listed in Exhibit A, and to meet the performance standards listed in Exhibit B and C. Such equipment should be similar to the type, quantity, and quality to the equipment listing in Exhibit D. The cost of the lease shall be reimbursed by the City in accordance with Article 6, Section B. The Contractor and the City may agree to purchase such equipment, under terms mutually agreed to by both parties. (P) Annual Maintenance Program Report. At the City’s written request, Contractor is to prepare an annual golf course maintenance program report. Each such report shall be due within 60 days following the City’s request therefore, but Contractor shall not be required to prepare such a report more than once in any 12 month period. Each report shall consist of three parts: (1) General Cultural and Agronomic Practices: This section details the normal agronomic/cultural practices including mowing, fertilization, aerification schedules, top dressing, pest and weed control, etc. (2) Manpower: This section will detail the anticipated manpower requirements including staff positions and anticipated hours. (3) Budget: This section will detail the budget for the course maintenance department, including the two sections outlined above. Contractor agrees to operate the facility in accordance with (Q) Operational Performance Standards. Exhibits “B and C” the performance standards as shown in . Article III Capital Improvements (A) City shall be responsible for Capital Improvements to the Golf Course. Capital Improvements are defined in this agreement as improvements to the real property of the golf course, that are tangible in nature, with a useful life expectancy greater than one year, and a value exceeding $5,000. Some examples of Capital Improvements include, but are not limited to, cart path construction, bridge construction/repair, bathroom construction, and major irrigation system st expansion/repair. Prior to June 1 of each year of this agreement, Contractor shall provide a written request to the City for Capital Improvements to the Golf Course. City shall at its sole discretion determine if the Capital Improvements requested by the Contractor are to be approved and completed by the City or by the Contractor. City also has the sole right to make Capital Improvements to the golf course that it deems necessary. However, if the improvements infringe on the playability of the golf course, City and Contractor will discuss the improvements and determine a date, time, and method of construction for the improvements to minimize the impact to the playing public. The cost of Capital Improvements will be paid for by the City. (B) For 2012, the City and the Contractor have agreed to make the Capital Improvements outlined in Exhibit D. The cost of these improvements are to initially be shared equally by the City and the Contractor. City agrees to repay the Contractor for the remaining portion of these improvements in equal monthly installments as outlined in Article VI, B. Article IV. Performance Review (A) Performance Review. City shall have the right to perform a quarterly performance review of all aspects of the Weeks Park operation. This review may be conducted by a third party consultant who has a demonstrated record in performing golf course operational reviews. These reviews may include onsite inspection of the property and services as well as an informal audit of the financial records and a review of the marketing program. This review is expected to focus mostly on progress made since the previous review, but can cover any and all aspects of the operation and/or terms of this agreement. On a quarterly basis, the City may administer a written survey of customers at Weeks Park. The survey shall be administered only to customers at the Facility. The City will prepare a report noting both positives and negatives of the Facilities operations. The report will note those areas where the City feels the operation is deficient as a result of Contractor’s action or inaction. It will also make recommendations for improved performance. Based on this report, the City may submit to the Contractor a list of deficiencies that it feels needs to be corrected and a reasonable timetable for making these corrections. Deficiencies shall be divided into two categories: Major and Minor. For purposes of this section, a Major Deficiency shall include material breeches in the performance of this agreement, including, but not limited to failures of financial reporting or remittance, health and safety issues, or significant turf loss. All non- major deficiencies will be deemed Minor Deficiencies. The list of noted deficiencies shall be presented to Contractor in writing (Notice of Deficiencies). Contractor shall have thirty (30) days from the date on the “Notice of Deficiencies” to remedy the deficiencies or make significant progress in remedying the deficiencies. (B) Personnel Concerns. City will notify Contractor of any problem or concerns it may have with any Contractor employee and Contractor will conduct an immediate investigation. Contractor will then take appropriate action in response. Contractor will provide a timely report to the City indicating the outcome of the investigation, and any actions taken. Article V. Inspection of Contract Premises, Assets, and Equipment By executing this Agreement, Contractor certifies that he has inspected the premises, supplies, and equipment related to this Agreement, that he has found them to be in good and acceptable condition, and that he accepts them in their present condition. Contractor agrees that upon termination of this Agreement he will return and deliver to the City all property belonging to City in as good condition as he received said property, normal wear and tear excepted. No alterations or improvements shall be made to the Facilities without receiving prior written approval of the City. (A) Contractor agrees to : “AS IS” Accept the premises in their present condition , the premises being currently suitable for  Contractor’s intended use. Keep the entire premises including the Pro-shop, Restrooms including those located on the Golf  Course, Cart Operations Building, Course Maintenance Building, Pavilion and Patio area in an acceptable condition at all times. To minimize damage and waste, Contractor shall immediately report to City all items that need  repair at the premises that exceed minor repair as outlined below. Provide all necessary maintenance services including but not limited to: pest control, janitorial,  window washing and landscaping. Take good care of the premises and its fixtures and suffer no waste.  Maintain all existing kitchen equipment as recommended by the manufacturer.  Return premises and any City owned equipment at the end of the contract period to City in  current condition, normal wear excepted. (B) City agrees to: Maintain, repair, and replace the roof, foundation and exterior walls of the premises.  Maintain all existing mechanical equipment as recommended by the manufacturer (HVAC,  plumbing, electrical). (C) Maintenance. Except as otherwise provided herein, Contractor agrees to properly maintain the equipment covered under this Article so that each piece is kept in good operating condition. Equipment is to be kept clean and serviced regularly. City shall have the right to inspect the equipment without prior notice to insure that the equipment is being properly cared for. If, in the opinion of City inspectors, the equipment is not being maintained properly, a written notice to that effect shall be given to the Contractor, along with a detailed list of deficiencies. Contractor shall then have 45 working days from the delivery of said notice to correct these deficiencies and to bring the equipment back to proper working order. If at the end of that period, the deficiencies have not been corrected to the City’s satisfaction, the City shall have the option of terminating the agreement with only a thirty day written notice. Expenses of maintaining the equipment are to be reimbursed in accordance with Article 6, Section B. Article VI. Fees/Revenues Records (A) Right to Set Fees and Charges. The City and the Contractor shall plan, develop, implement and revise maximum rates and charges for use of the Facility. Jointly, the City Manager (or his designee) and Contractor will establish maximum rates for the following: 1. Green fees (to include as appropriate weekday, weekend, prime, twilight, super twilight, senior, junior, military, 9-hole and 18-hole play). 2. Annual passes or other frequent-user pricing. 3. Cart fees (9-hole and 18-hole play). 4. Ball rental on the driving range. Any and all rates, fees, charges and structures not listed above shall be set at the sole discretion of the Contractor. The maximum rates of the items above shall be jointly set and in place. Thereafter, the Contractor has the sole right to adjust fees up to the maximum set for each category. Contractor may not exceed the maximum without written approval from the City Manager (or his designee). (B) Management Fee and Expense Reimbursement. In exchange for the services described above, the City will pay Contractor a management fee of $120,000 per year, and reimburse the Contractor for all except the cost of goods sold for Pro Shop Merchandise and all expenses associated with expenses Food and Beverage. The management fee will be paid in equal installments of $10,000 per month due and payable within 5 days after the City’s receipt of the Contractor’s detailed expenditure report. In addition to the management fee, the City will reimburse the Contractor, through equal installments of $_________ per month due an payable within 5 days after the City’s receipt of the Contractor’s detailed expenditure report, for the 2012 Capital Improvements outlined in Exhibit E, that were initially paid for by the Contractor. The City shall also make the expense reimbursement payment to Contractor within 5 days after the City’s receipt of the Contractor’s detailed expenditure report. The Contractor has the exclusive right to retain all revenues associated with merchandise sales, food and beverage sales, lesson fees and golf balls retrieved from the course. In addition, on or before December 1 of each year, the City will pay the contractor an amount equal to one half (50%) of all net income (calculated as shown below) generated from green fees, annual passes (or other frequent-user pricing), cart fees (9-hole and 18-hole play), and ball rental on the driving range during the 12 month period ending An example of the computation described above is as follows: the preceding September 30. Computation Example Revenues (to be collected by Contractor and transferred to City): Green Fees - $ 611,560 Cart Fees - $ 285,000 Range Fees - $ 103,440 $1,000,000 – Income Expenses(to be reimbursed to Contractor): Personnel - $ 376,000 Payroll Taxes - $ 44,064 Advertising - $ 25,000 Chemicals - $ 48,000 Equipment Maintenance and Repair - $ 49,796 Supplies - $ 4,200 Course Maintenance and Repair - $ 6,600 Equipment Rental - $ 9,600 Landscaping - $ 13,000 Office Equipment Maintenance and Repair - $ 3,600 Computer Equipment Maintenance and Repair - $ 8,000 Telephone - $ 4,000 Natural Gas - $ 1,000 Sanitation Services - $ 7,500 Copier Lease - $ 890 Computer Software Services - $ 5,000 Motor Vehicle Fuel - $ 14,000 Electricity - $ 64,000 Golf Cart Lease - $ 48,000 Maintenance Equipment Lease - $ 109,126 $ 841,376 - Expenses $ 158,624 – Net Income Total Amount Retained by City of Wichita Falls - $ 79,312 Total Amount Paid to A.P.G.L. - $ 79,312 Actual expenditures are expected to vary from the numbers described above. (C) Limitation of Reimbursement of Expenditures. It is projected that the City’s responsibility to reimburse the Contractor for expenditures listed in Article 6, Section B (above) excluding capital improvements, will total approximately $900,000 annually. In no case shall the City‘s reimbursement responsibility to the Contractor exceed 10% more than the expected total annual operating expenditures (or $990,000) without the City’s prior written consent. In the event that the Contractor exceeds the projected annual operating budget, plus 10% ($990,000) without the City’s prior written consent, each additional dollar spent will be deducted from the City’s management fee to the Contractor. The annual operating expenditure budget and the maximum amount subject to reimbursement by the City may be amended from time to time only by the written agreement of the City and Contractor. Notwithstanding the foregoing, expenses directly attributable to the operation of the Facility which are paid directly by the City (rather than reimbursed to the Contractor), such as golf cart and maintenance equipment lease payments and utilities other than water and sewer, shall be included in the operating expense budget and subject to the maximum amount subject to reimbursement by the City as set forth above. The Contractor’s performance will be evaluated on the basis of comparisons to similar courses in Exhibit A and the performance standards listed Exhibits B and C. The Contractor is expected to spend the amount necessary to provide the quality of courses in Exhibit A, and to meet or exceed the performance standards listed in Exhibits B and C (D) Collection of Revenues. Contractor agrees that collection of green fees, cart rentals, and driving range revenue shall be run through the Pro Shop cash registers. th On the 20 day of each month, Contractor shall provide City with: (1) a report of revenue received in the previous calendar month on a City-prescribed form, and (2) a remittance of all revenue received from green fees, cart rentals and driving range fees in the previous calendar month Contractor shall maintain full and separate books and records for the purpose of reporting activities related to Contractor operations of Pro Shop, Food and Beverage Operations, Driving Range and Golf Cart Operations. Contractor agrees to maintain complete records of sales receipts and inventory regarding operations at the Golf Course premises, all in accordance with normal golf course accounting principles. Contractor agrees that the City may prescribe the form of records to be kept by the Contractor in accordance with this provision. On an annual basis the City and Contractor may engage a certified public accountant to conduct an audit. The cost of the audit will be paid for by the City. Contractor agrees that the City or its agents shall have the right to audit the books and records required to be made and preserved by Contractor. Contractor shall make those books and records available to the City during normal business hours and agrees to otherwise provide to the City upon request the full disclosure of all financial information relating to Contractor’s operations or Contractor’s performance under this Agreement within five (5) days of written request by City. These records shall be maintained for a period of four (4) years from the date they were created. If such audit shows a deficiency in percentage payments owed City in an amount of at least five percent, the costs of audit for any period covered shall be split evenly between the City and the Contractor. Contractor shall always be responsible for any deficiency payment owed. (E) Trade-outs. It is understood by both City and Contractor that there will be no trade-outs of green fees, cart fees, or other golf course or clubhouse revenues, goods or services without the consent of both parties. It is understood by both parties that unauthorized trade-outs will be considered as theft and are subject to prosecution. (F) Payments to City. All amounts due to the City under this Agreement shall be remitted by check on a monthly basis as set forth above and accompanied by such reports as the City may reasonably require. In the event there is an overpayment to the City in a given month, based on the reconciliation of actual revenues to those used in the interim calculation, such overpayment will be factored into the calculation of the amounts to be paid to the City in the subsequent month (or as soon as possible thereafter. (G) Sales Tax. Contractor shall collect and pay all sales, use, alcoholic beverage and similar taxes on taxable goods and services sold under this Agreement for items which the Contractor retains revenue. Contractor shall pay and discharge all franchise taxes and all gross receipts taxes with regard to Contractor’s business and all personal property taxes assessed against personal property belonging to Contractor that is used in connection with Contractor’s performance under this Agreement. Contractor shall collect and City shall pay all sales tax associated with items which the City retains revenue. (H) Right to random checks. The City shall have the right to randomly inspect receipts from customers. Article VII intentionally omitted Article VIII. Maintenance (A) Payment of Building and Facility Utilities. City shall be responsible for the payment on all utilities in connection with the operation of the Facility, including Pro Shop, Pavilion, Golf Cart Operations Facility, Golf Course Maintenance, and Maintenance Facility including electricity, long distance phone system, security system monitoring fees, satellite or cable fees, gas, sewer, fuel, solid waste and water, but these expenses (except water and sewer) are included in the annual expense budget calculation. Contractor agrees that all such utility and other services shall be used or consumed only in connection with the operation of the Golf Course and in a manner consistent with good business practices and City policies. City is to supply water for irrigation and sewer services free of charge. (B) Maintenance of Golf Courses Facilities. Contractor agrees to maintain the Golf Course to the Exhibit “C” maintenance standards found in . The maintenance practices are to be such that not only will Exhibit A the current appearance be comparable to those courses listed in , but that the long-term asset value is protected. (C) Agronomist Review. City shall have the right to conduct quarterly inspections by an agronomist of the course condition and maintenance standards. The agronomist’s report will be included in the quarterly review indicated in Article IV. (D) Irrigation System. Contractor agrees to keep the irrigation system, including pump, pump house, all piping and sprinkler heads, and radio controls in good operating condition. City is responsible for all repairs, supplies and maintenance to the irrigation system, including the radio license. Contractor agrees to properly maintain the irrigation equipment so that each piece is kept in good operating condition. Equipment is to be kept clean and serviced regularly. Notwithstanding the foregoing, the City and the Contractor acknowledge that there are defective part warranty claims with respect to the cast iron 90 degree joints used in the irrigation system. As a result, the costs incurred in repairing and/or replacing such joints shall be paid by the City and/or its vendor and shall not be included in the annual operating expense budget for the Facility. Article IX. Independent Status/Indemnification/Insurance (A) Independent Status of Contractor: It is understood and agreed by the parties that Contractor shall act and perform as an independent contractor in all aspects, and its employees shall not be considered employees of the City. Contractor further agrees that it will pay all bills or statements relating to operation of the Golf Course and for which it is responsible in a prompt and timely manner. (B) Indemnification. Contractor agrees to indemnify, defend and hold harmless the City of Wichita Falls, Texas and all of its present, future and former agents, employees, officials and representatives in their official, individual and representative capacities “Indemnified Party”) from and against any and all Liability created by, arising from, or in any manner relating to services performed or goods provided by Contractor. As used herein, the term “Liability” includes, but is not limited to, any and all claims, demands, causes of action, judgments, liens and expenses (including attorney’s fees, whether contractual or statutory), costs and damages (whether common law or statutory, and whether actual, punitive, consequential or incidental), or any conceivable character, due to or arising from injuries to persons (including death) or to property (both real and personal). The indemnity provided herein expressly Contractor will vigorously includes any liability arising through the doctrine of products liability. defend any Liability, even those allegedly caused by the negligence or other fault of any Indemnified Party. In any case, the Contractor will not be responsible for indemnification in any amount exceeding the applicable prescribed insurance limits contained herein. If at any point after a claim has been filed the City determines that there is a conflict of interest between it and the Contractor, the City may request that it be represented by separate counsel. The expenses of such counsel will be subject to the indemnification provision set out above. (C) Insurance and Certificates of Insurance. Without limiting any of the other obligations or abilities of the Contractor, the Contractor shall, during the term of the Agreement, purchase and maintain the herein as stipulated minimum insurance with companies duly licensed to write business in the state of Texas. The carrier shall be rated A- or better by A.M. Best. The City of Wichita Falls shall be named as an additional insured on all required policies except Workers’ Compensation. Valid Certificates of Insurance for each policy covering the Contractor and Subcontractors, together with a statement by the issuing company that said policies shall not be cancelled without thirty (30) days prior notice being given the City. All policies of insurance shall be written with a company or companies approved by the Texas Department of Insurance to transact business in the State of Texas and acceptable to the City whose acceptance will not be unreasonably withheld. Contractor agrees to provide the City with certificates of insurance evidencing the required insurance coverage’s and shall provide the City with certificates of current coverage upon the expiration or renewal of any insurance coverage. Upon each renewal of this Agreement, the City reserves the right to amend the foregoing insurance requirements or to require additional coverage’s and amounts as may be determined necessary by the City. (1) Worker’s Compensation Insurance: (a) Worker’s compensation coverage (or equivalent) shall be maintained for not less than the Texas Statutory Limits. (b) The policy shall contain a waiver of subrogation in favor of City of Wichita Falls. (c) The policy shall contain requirements that the City be given not less than thirty (30) days notice of cancellation, non-renewal or material change. The City shall be responsible for providing workers’ compensation insurance or similar coverage for all of the City’s employees assigned to Weeks Park Golf Course and Contractor shall have no liability for worker’s compensation claims of such type unless otherwise provided by law (for instance, through subrogation). (2) Commercial General (Public) Liability Insurance. Shall include coverage for Premises/Operations, Products/Completed Operations, Independent Contractors, Personal Injury and Contractual Liability insuring the indemnity provision contained in this Agreement: (a) Bodily injury limit of $250,000 per person and $500,000 per occurrence. (b) Property damage limit of $25,000 per occurrence. (c) Aggregate limit of $1,000,000 (d) Personal & Advertising Injury of $500,000 (e) The City of Wichita Falls shall be listed as an additional insured (f) The policy shall contain requirements that the City be given not less than thirty (30) days notice of cancellation, non-renewal, or material change. (g) Coverage for the City of Wichita Falls shall also be provided to cover fixed assets and should be written at least as broad as “Special Form” providing coverage for risks of direct physical losses, including theft. (h) Contractor’s insurance shall be primary and shall be endorsed to provide a waiver of subrogation in favor of the City. The commercial General Liability Insurance policy should be endorsed using Endorsement No. CG20 09 11 85. (i) The policy shall be written on an occurrence basis. (3) Business Commercial Automobile Liability Insurance. Shall include coverage for any automobile/vehicle: (a) Property damage limit of $100,000 per occurrence. (b) Bodily injury limit of $250,000 per person and $500,000 per occurrence (c) Aggregate limit of $1,000,000 (d) The City of Wichita Falls shall be named as an additional insured (e) The policy shall contain requirements that the City be given not less than thirty (30) days notice of cancellation, non-renewal, or material change. (f) The policy shall be written on an occurrence basis. (4) Liquor Legal Liability Insurance. Shall include coverage for on-premises consumption including all City-owned property within the confines of Weeks Park Golf Course: (a) Limits shall not be less than $1,000,000 per occurrence for bodily injury and property damage. (b) The policy shall be primary insurance and not excess over any other policy. (c) The City of Wichita Falls shall be listed as an additional insured. (d) The policy shall contain requirements that the City be given not less than thirty (30) days notice of cancellation, non-renewal, or material change. (e) The policy shall be written on an occurrence basis. (5) Commercial Crime Insurance. Shall include coverage for employee dishonesty, forgery, or alteration, and theft, disappearance and destruction: (a) Coverage shall be on a blanket basis. (b) Limits shall be equal to $100,000 per occurrence. Article X. Termination (A) Termination. In addition to the early termination during the initial term or subsequent renewal term as set forth in Article I, Sections (C) and D, the City may terminate this agreement under two conditions. The first is breach of the terms of this agreement. The second is subject to the process stated in Article IV “Performance Review.” In either case, the City will provide 30 days written notice to the Contractor of alleged breach of contract and/or inability to remedy items discovered in Article IV. Contractor shall respond within ten (10) business days of receipt of such correspondence with a plan to remedy those items stated in the 30 days written notice. If, at the conclusion of the 30-days, Contractor has not remedied or made significant progress in remedying the items listed, the City may cancel this agreement by providing the Contractor with one hundred twenty days written notice of termination. Such early termination may be effective earlier upon mutual agreement of the parties. The Contractor may terminate this agreement in the event the City commits a material breach and fails to cure or make substantial progress to cure the breach within 30 days after receipt of written notice from the contractor identifying the specific nature of the breach. (B) Effect of Termination If either party terminates this Agreement, the City will purchase all merchandise in the Pro Shop at Contractor’s wholesale cost as shown by an audit of the Contractor’s financial records. The City will also make payment to the Contractor for any remaining amounts due contractor pursuant to the attached equipment lease and 2012 capital improvement projects. Payment for these items shall be made to Contractor within thirty (30) days of termination. (C) Force Majeure. (1) Damage or Destruction. Should the Golf Course be destroyed or substantially damaged by fire, flood, acts of God, or other casualty, City, by written notice to Contractor given within thirty (30) days following the occurrence of such event, shall have the right to terminate this Agreement on the basis that City does not choose to rebuild or restore the Golf Course, and in such event neither party shall have any further obligation to the other party under this Agreement, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination. For the purpose of this Section, the Golf Course shall be deemed to be substantially damaged if the estimated length of time required to restore the Golf Course substantially to its condition and character just prior to the occurrence of such casualty shall be in excess of six (6) months. If this Agreement is not terminated in the event of damage to the Golf Course either because (i) the damage does not amount to substantial damage described above, or (ii) notwithstanding destruction to the Golf Course, City elects to restore the Golf Course, then City shall proceed, at City’s own expense, with all due diligence to commence and complete restoration of the Golf Course to its condition and character just prior to the occurrence of such casualty. If as a result of any damage or destruction to the Golf Course as provided in this Section, the responsibilities of Manager under this Agreement are substantially changed, then the parties shall meet and discuss in good faith appropriate modifications to this Agreement. (2) Force Majeure Events. As used in this Agreement, the terms “Force Majeure Event” means a disruption in the operation of the Golf Course due to, or the cause of the failure to perform by a party hereto due to, declared or undeclared war, sabotage, riot or acts of civil disobedience, acts or omissions of governmental agencies (except acts of governmental agencies including, but not limited to the City taken in accordance with this Agreement), accidents, fires, explosions, floods earthquakes, or other acts of God, strikes, labor disputes, shortages of materials, or any other event not within control of Contractor and not caused by the gross negligence or intentional wrongful conduct of Contractor. Article XI. Miscellaneous (A) Protection Against Accident to Employees and the Public. The Contractor shall at all times exercise reasonable precautions for the safety of employees and others on or near the contract Premises and shall comply with all applicable provisions of Federal State, and Municipal laws. (B) Laws and Ordinances. The Contractor shall at all times observe and comply with all Federal, State, and local laws, ordinances and regulations, which in any manner affect the Contractor or the work, and shall indemnify and save harmless the City against any claim arising from the violation of any such laws, ordinances and regulations whether by the Contractor or its employees. (C) Liens. Contractor agrees that it will at no time engage in any activity, which will subject a lien to be attached to City property. In the event a lien is filed on City property as a result of Contractor’s activities, it shall immediately ensure the removal of the same. (D) Venue. This Agreement and all of the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Texas. The provisions and obligations of this Agreement are performable in Wichita County, Texas such that exclusive venue for any action arising out of this Agreement shall be in Wichita County, Texas. (E) Assignment and Subletting. The Contractor agrees to retain control and to give full attention to the fulfillment of this Agreement, that this Agreement will not be assigned or sublet without the prior written consent of the City. The parties recognize that Contractor may choose to form a corporation, professional corporation, limited liability company or other business entity in which he is the principal or majority owner and such shall not be construed an assignment for this Agreement. In the event the Contractor is incorporated the sale of more than 50% of the stock of the corporation shall be construed to be an assignment. (F) Paragraph Headings; Construction.The paragraph headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof. Both parties have participated in the negotiation and preparation of this Agreement and this Agreement shall not be construed either more or less strongly against or for either party. (G) Binding Effect. Except as limited herein, the terms and provision of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, devisees, personal and legal representatives, successors and assigns. (H) Gender.Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. (I) Exhibits.All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. (J) Computation of Deadlines.If any deadline contained herein ends on a Saturday, Sunday or a legal holiday recognized by the Texas Supreme Court, such deadline shall automatically be extended to the next day that is not a Saturday, Sunday or legal holiday. (K) Entire Agreement.It is understood and agreed that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally and no written modification of this Agreement shall be effective unless executed by both parties. (L) Non-Discrimination. Contractor shall abide by the City’s affirmative action plans and equal employment opportunity policies as may be adopted by the City insofar as they are applicable to Contractor’s employees and shall abide by all local, state and federal laws and regulations in the operation of Weeks Park Golf Course. The Contractor or his employees shall not discriminate against any individual on the basis of race, creed, color, sex, national origin or disability in the golf course and concession operation or in providing any service contemplated by this Agreement. (M) Notices. Any notice required or desired to be given from one party to the other party to this Agreement shall be in writing and shall be given and shall be deemed to have been served and received (whether actually received or not) if (i) delivered in person to the address set forth below: (ii) deposited in an official depository under the regular care and custody of the United States Postal Service located within the confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (iii) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party’s address for notice. If to City: CITY OF WICHITA FALLS Darron Leiker City Manager th 1300 7 Street Wichita Falls, Texas 76301 If to Contractor: A.P.G.L., Inc. 5018 Ditto Lane Wichita Falls, Texas 76302 (N) Costs of Review – Unless otherwise specified herein, all costs associated with the review or monitoring of the Golf Course or the Contractor will be borne by the City. This Agreement shall be binding upon the parties hereto, their successors, heirs, personal representatives and assigns. IN WITNESS WHEREOF, the parties have executes this agreement on the dates indicated below. THE CITY OF WICHITA FALLS, TEXAS Contractor: A.P.G.L., INC. _________________________________ _______________________________ By: Darron J. Leiker, City Manager By: Tommy Isbell, President Date:_____________________________ Date:___________________________ APPROVED AS TO FORM: ________________________________ By: Miles Risley, City Attorney Date:____________________________ ATTEST: ________________________________________ By: Lydia Ozuna, City Clerk Exhibit A: Comparable Courses The following is a list of courses that comprise the Comparable Group for purposes of setting standards. This list may be modified by joint consent of both parties to this contract. Indian Creek Golf Course, Carrollton, Texas Bridges Course at Firewheel, Garland, Texas Sherrill Park, Richardson, TX Exhibit B: Operational Standards It is understood and agreed that the golf course shall be operated in a manner consistent with that of top quality municipal golf courses. Specifically, contractor agrees to the following; Comparable group; 1. the golf course is to be operated in a manner consistent with standards seen for courses in the Comparable Group (Exhibit “A”). Customer Service: 2. Customer service is a priority. Customers are to be greeted in a friendly manner and treated with courtesy and respect at all times. All staff in contact with customers shall be instructed in the manner in which customers are to be greeted and handled. Every effort shall be made to answer phone calls by the fourth ring. Staffing: 3. a.Cart Attendants: There should be at least one cart attendant on duty during all hours of operation for the period March 1 through November 30, except during adverse weather conditions as noted above. b.Pro Shop Attendants: There should be at least one pro shop attendant on duty during peak play periods such as weekend mornings. c.PGA Professional: There should be at least one PGA Professional on the full- time staff at the facility. Starters: 4.In addition to their duties to check receipts and monitor play off the first and/or tenth tee, starters shall: a.Greet all customers in a friendly manner b.Whenever possible, pair singles and twosomes with other singles and twosomes so as to make threesomes or foursomes. c.Determine if they have played the course since it has been renovated. If the player is new to the course, the starter shall: i.Advise the golfer as the appropriate tee for their handicap, ii.Advise the golfer of out-of-bounds and how the yardage is marked on the course. d.Inform the golfers as to presence or absence of beverage cart service e.Inform golfers as to the Pace of Play policy. Exhibit C: Maintenance Standards GENERAL TURF STANDARDS ALL TURF AREAS conditioned to a level that provides an enjoyable Golf Experience. Overall good health, coverage, color and density; free of weeds, disease, insects and other pests; Quality mowing, trimming and detail; Overall mowing height and frequency plus fertilizer and chemical applications appropriate for the type turf and season; Well drained with injured areas being repaired. Grooming and conditioning procedures including Aerification, Vertical Mowing, Slicing, Top Dressing Brushing etc appropriate for the Type Turf and Season. Conditioning Levels set to favor the Average . Golfer. All areas inspected daily by the Superintendent STANDARDS BY SPECIFIC AREA GREENS Mowed and Cups changed daily during growing season and 4-5 times per week during off-season. Hole Locations follow USGA Recommendations. Flags, Hole Liners in good condition and set to the proper depth, Flagsticks in good condition. Ball marks and all Damaged Areas repaired daily. Greens Surfaces maintained to permit ball to roll smooth and true. Green Speed favorable to the Average Golfer. GREEN SURROUNDS Conditioned to Fairway Standards. TEES Mowed minimum 3 times per week during season and as required during the off season to assure a well- groomed playing surface. Tee Markers moved and divots filled daily on Par 3s during season and minimum of 3 times per week during off-season, depending on play. Tees level, providing a firm stance; maintained to permit easy placement of tees; Permanently installed Yardage Markers. Tees to be overseeded at a time and rate to assure a quality winter playing surface. Additional applications of seed to be made as necessary to provide a consistent and quality surface. TEE SLOPES Ingress and Egress areas maintained to disperse foot traffic promote safety and provide a well-groomed . appearance FAIRWAYS Mowed minimum of 3 times per week in season and as required to maintain a quality and consistent surface during winter months. Divots repaired biweekly. Yardage markers located at 100, 150 and 200 yards in middle of fairways and on cart paths. Fairways to be overseeded and re-seeded at a time and rate to provide a quality and consistent winter playing surface beginning in the second year. As an alternative to overseeding the fairways, the roughs may be overseeded. ROUGHS Maintained to minimize Lost Balls and allow appropriate Pace-of-Play. Trees, Irrigation System Hardware, Building Areas, Bridges, Creek Crossings etc. trimmed. BUNKERS Raked daily and edged/trimmed with edges well defined; Four to Six inches of sand meeting USGA Specifications; Two to four inch lips on the green side of green bunkers with no lips on the back side. No lips on Fairway Bunkers. Rake, in good condition, provided outside each bunker with 2 by the larger bunkers. Free of weeds, rocks and other foreign materials. Well drained. CART PATHS Paths and adjacent areas well maintained, free of bare areas & ruts; Cart traffic control devices including ropes, posts, directional signs, etc installed and well maintained. Paths clean and free of mud, tree limbs and other debris. SERVICE ITEMS Benches, Ball Washers, Wastebaskets, Water Stations conveniently located, painted and well maintained. MARKERS/SIGNS Directional, Tee and Ground Under Repair Signs plus Hazard and O.B. Markers appropriately located and in good condition. PONDS/STREAMS “In play” Ponds and Streams, including edges and slopes- clean, weed free, maintained to minimize lost balls and aesthetically pleasing; Stream crossings mowed and trimmed to minimize lost balls and provide a clear view of fairways. GOLF COURSE LANDSCAPING All Landscaped Areas on course including Restrooms, Shelters, and other Structures- clean, beds mulched, plants healthy. Areas weed free with bedding plants changed 2 times/year. TREES Trees in playing areas pruned and allow access to mowing equipment. Base areas maintained to minimize lost balls. Dead trees, dead limbs and other debris under trees removed timely. OVERALL TURF HEALTH AND COVER All Turf Playing Surfaces fully covered, free from insects, weeds and disease; Good color and density. OVERALL COURSE AND GROUNDS CLEANLINESS All areas of Golf Course, Clubhouse Area, Entrance and Parking- clean, free of trash/debris, insect mounds, tree limbs etc. PRACTICE AREAS  PUTTING, PITCHING GREENS AND SURROUNDS- Maintained to Green Bunker and Surrounds Standards  PRACTICE RANGE TEE - Maintained to Tee Standards; Distance Markers installed; Divots repaired daily; All Service Items properly located and maintained.  PRACTICE RANGE - Maintained to Fairway Standards; Target Greens with Flags provided and appropriately maintained. CLUBHOUSE AREA  CLUBHOUSE GROUNDS/LANDSCAPING - All Turf Areas, Shrubbery, Flower Beds, Lakes and Hard Surface areas maintained to Golf Course Standards or better providing a Good First and Last Impression  ENTRANCEWAY -Including Main Entrance and Drive clean, properly landscaped and maintained to Golf Course Standards of better, providing a Good First and Last Impression.  PARKING AREA - Clean, Appropriately Stripped and Marked, Directional Signs, Landscaped, Edged and Trimmed IRRIGATION SYSTEM System including Valves, Sprinklers, Controllers, Pumps and Irrigation Water Supply System maintained in good working order according to manufacturer guidelines. ENVIRONMENTAL Pesticides Chemicals and all other hazardous Materials including Fuel, Fertilizer, Welding Supplies Stored and Used according to Manufacturers Guidelines plus Federal and State Regulations; Appropriate up-to-date Records including MSDS Sheets maintained on all Chemicals and Pesticides; Course Closings for Pesticide Applications coordinated with the Golf Shop and Management; Equipment Wash Areas Maintained to meet State and Federal Standards; Applicators Certified, use approved Protective Clothing and follow State Procedures. Fuel tanks tested with up-to-date Records maintained. MAINTENANCE EQUIPMENT Equipment and Vehicles maintained according to Manufacturers Guidelines; Ongoing Service Records maintained and available for Audit. GOLF COURSE MAINTENANCE BUILDING AND AREA Clean, Well Organized and free of Litter and Debris. Old Junk Equipment and parts stored in a Secluded Area. RESTROOMS/SHELTERS Serviced Daily, Clean, Appropriately Stocked and Maintained in a sanitary condition SAFETY All areas within the property maintained in a Safe condition with Traffic Control, Signs, Fencing and other measures necessary to insure a safe environment for Players, Staff, Visitors and Others Chemicals and pesticides applied and recorded properly. All staff members made familiar with the Emergency Procedures. Exhibit D: 2012 Capital Improvements (Final Estimate From Professional Golf Services To Be Inserted Here) Equipment List