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Res 034-2007 3/6/2007 . , RESOLUTION NO. �� � a� 1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A MANAGEMENT SERVICES AGREEMENT WITH WEEKS GOLF CLUB, LLC FOR THE MANAGEMENT OF WEEKS PARK GOLF COURSE; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, The City of Wichita Falls intends to renovate Weeks Park Golf Course; and WHEREAS, Management Services Agreements have proven an effective way to maximize the investment in golf courses; and WHEREAS, City staff has negotiated a Management Services Agreement with Weeks Golf Club, LLC to manage the Pro Shop, Golf Carts, and Food and Beverage operations and to provide Goif Course maintenance services. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. The City Manager is hereby authorized to execute the attached Management Services Agreement with Weeks Golf Club, LLC. SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the day of 6`" day of March, 2007. ��� ��. MAYOR ATTEST: t Clerk � , i-. , -, "-=a - �; ;�J 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 refened to as the "City") and Weeks Golf Club, LLC, (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 Weeks Park Golf Course 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 (Currently known as Weeks Park 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 term of this Agreement shall be for five (5) years commencing on January l, 2008 ("Start Date"). The first year of this contract shall terminate September 30, 2008. All other years shall commence on October l and end on September 30` The parties may, however, extend the term hereof. (D) Renewal Term. Subject to Article X, Paragraph (D), at the end of the Initial Term, the terms and conditions of this agreement shall automatically renew without action by either party hereto for a three (3) year term, 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. This contract will terminate at the end of the renewal term. Article IL 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 similar level of facilities as given in Exhibit "A". (B) Golf Carts. Contractor shall lease or purchase from the City or from a vendor approved by the City, electric golf carts for rent by players at the golf course in sufficient numbers, with a t minimum of 72, 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. All golf carts shall be equipped with tops. All carts shall be replaced with new carts a minimum of every 4 years from date placed in service. The carts shall be cleaned and maintained on a daily or other regular basis consistent with the season and player demand. (C) Su lies. 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 courses, clubhouse, and all other buildings contained on the Golf Course property. (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 Weeks Park. Contractor shall employ or contract for a qualified and experienced golf course superintendent. In the event Contractor elects to contract for golf course superintendent services, Contractor must seek and obtain written permission for approval of such contract. City will notify Contractor, in writing, of any problem or concei 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. The parties agree the City can also require Contractor to add personnel to meet the public demands based upon similar staffing levels at comparable golf courses such as, but not limited to, those courses listed in E�chibit "A", City shall in no way be responsible for compensating or managing such personnel. 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, in cooperation with the City, 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 Weeks Park Golf Course is open for play. The Golf Course will be open every day, although it may be closed on 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. 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. It is understood that during the period of December 31, 2007 to March 15, 2008, course conditions may not allow for the operating hours specified in Section F"Hours of Operation." During that time, the Contractor may, at its discretion, operate during fewer days and/or hours than those specified in this section. (G) EQUipment Rental. Contractor, at his expense, shall have the exclusive right and make available for rental by the public such golf clubs, GPS, 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. (H) Pro Shop Merchandise. Contractor 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. All such merchandise shall be indicative of a pro shop operation equivalent to such operations as such operations at comparable courses in Exhibit A. Contractor will maintain an inventory of such merchandise having a wholesale value of not less that TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($25,000.00) with no more than fifty percent (50%) of that inventory being in equipment. It is expected that such 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. Contractor shall provide pencils, scorecards and other Pro Shop supplies at Contractor's expense. (I) Repair and Maintenance. Contractor shall recommend and make available to the public reliable sources for golf club repair and equipment maintenance services. (J) Teachin�gram. Contractor will offer on a continuing basis a comprehensive teaching program including private lessons, group lessons and clinics to members of the public. Contractor will 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. (K) Golf Course Marketin��Promotion and Pro rg ams. 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 prepare and submit to the City for approval, a comprehensive marketing plan for the first year of this contract no later than May 1 S `, 2007. This plan should include strategies for the grand reopening of the course following renovations and a plan to maximize revenue performance after the opening. Thereafter, Contractor shall have the marketing plan for the next fiscal year prepared no later than August 15th of the current year. City agrees to act expeditious(y in its approval process. (2) 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 i. Link to online teetime reservation (3) 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. (4) Contractor shall spend no less than twenty-five thousand dollars ($25,000) towards advertising and promotions on an annual basis. (5) Contractor shall maintain and publicize an 800 telephone number for the purposes of out-of-town golfers being able to contact the golf course and make tee times. (6) Contractor shall provide a Yellow Pages ad for Weeks Park Golf Club in both Verizon and Southwestern Bell Yellow Pages covering Wichita Falls area (7) Contractor shall provide a quarterly report to the City regarding the marketing program. This report shall contain, at a minimum, a summary of advertising and promotions from the previous quarter, including a report on the cost of the ads and measures used to track their effectiveness and a report on upcoming advertisement and promotion for the current quarter, including costs and samples (where possible). (8) Contractor agrees to create and distribute a full-color brochure for the Course to be used in "tourist racks". a. The City must approve of the brochure before printing and distribution. b. The City will contribute $4,000 towards its design and production c. The brochure is to be distributed to tourist racks in the area as well as through the Chamber of Commerce for Wichita Falls and area Interstate Rest areas. These racks are to be maintained throughout the contract. d. Brochure is to be printed and distributed no later than 60 days following the Grand Reopening of the course. (9) Contractor agrees to administer the National Golf Foundation's GSPTM survey (or alternative approved by the City) at least once a year. Contractor further agrees to provide an incentive for completion of the survey of at least $5 value. The survey period shall run for no less than two weeks for electronic surveys and no less than one full week for paper and pencil responses. City agrees to pay the National Golf Foundation fees for GSPTM. If a paper and pencil version is utilized, City shall be responsible for its administration, but Contractor will still be responsible for providing the incentive. Both City and Contractor shall have access to the results. It is agreed by both parties that there should be a minimum of 200 completed surveys collected, and if paper and pencil surveys are used, there should be a minimum of 100 paper and pencil and 100 electronic completed surveys used. (L) Marshalling, Starter, and Handicappin� Service. 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. Contractor will offer a handicapping service and may charge a fee for this service. (M) Concessions. Contractor is obligated to provide and operate food and beverage concessions to the public on the Pro Shop and Golf Course premises. Contractor shall provide a diverse menu of food choices consistent with the capability of the food service equipment at the club house facilities. (N) "Lost" Golf Balls. Contractor shall have the exclusive right to retrieve "lost" golf balls from the ponds, lakes, creeks and rough area of the Golf Course and to reuse or sell those balls. The proceeds from the sale of these balls shall be considered as part of "merchandise sales" for the purpose of this contract. (0) Annual Maintenance Pro�ram ReQort. Contractor is to prepare an annual golf course maintenance program report. The first such report shall be delivered to the City by May 15th, 2007. Thereafter, the report shall be delivered to the City by September 15th. The report shall consist of four parts: (1) General Cultural and A�ronomic 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) Capital Improvements, Small Project and Equipment Replacement• This section will detail any special projects to be implemented during the fiscal year as well as any new equipment needs. (4) Bu_ d�et: This section will detail the budget for the course maintenance department, including the three sections outlined above. (P) Operational Performance Standards. Contractor agrees to operate the facility in accordance with the performance standards as shown in Exhibits "B and C". Article III. Capital Improvements (A) Other Capital Improvements. The Contractor, with written approval by the City, may make additional capital improvements at the facility. As part of the application for making these improvements, Contractor shall furnish the City with a depreciation schedule for the proposed improvements. City agrees to pay the Contractor an amount equal to the depreciated amount of the Contractor's contribution as indicated on the above-mentioned schedule for those improvements still in usable condition following the termination of this agreement or its successors between the City and the Contractor. 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. The review may or may not be announced beforehand and can include "secret shoppers" hired throughout the year. The review will also include results of any surveys (including Clasp taken on behalf of the course by the City during the quarter. 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. A minimum of 200 completed surveys must be collected. Contractor shall cooperate fully with the City, including providing an incentive for the completion of the survey of no less than a free beverage or the equivalent in merchandise. The survey will consist of no more than Ffteen (15) questions and be designed so the survey can be completed within a few minutes. The survey will be designed so that it can be clipped to the scorecard holder on the golf carts. The survey will consist of questions in the following categories: course conditions, customer service, pace-of-play, value, food and beverage service, merchandise, and overall experience. Each question will have the customer rate the facility on a scale of zero to ten, with zero denoting exceptionally poor performance and ten denoting exceptionally good performance. (Note: this survey is in addition to the NGF GSP survey). The City will prepare a report noting both positives and negatives. 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 a Minor Deficiency. 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. 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. The parties agree to conduct a full inventory and evaluation of the condition of the premises and equipment up to 7(seven) days prior to the Start Date. 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: ■ Accept the premises in their present condition "AS IS", 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 �ity all items that need repair at the premises that exceed minor repair as outlined below. ■ At its sole cost and expense, maintain, repair and replace all parts of the premises in good repair and condition, not to exceed two thousand dollars ($2,000) per occurrence. ■ 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 kitchcn cquipment as recommended by the manufacturer. ■ Return premises 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). ■ At its sole cost and expense, maintain, repair and replace all parts of the premises in good repair and condition, in excess of two thousand dollars ($2,000) per occurrence. (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 lease or this contract with only a thirty day written notice. Article VI. Fees/Revenues Records (A) Ri�ht to Set Fees and Char�es. Contractor shall plan, develop and implement a tee time reservation system and a discount program for junior players, senior players and residents of Wichita Falls. The establishment of selected rates, shall be based upon a joint process between the City Manager (or his designee) and the Contractor as follows. Ninety (90) days prior to the start date of this contract, the contractor shall complete a survey of area and comparable golf facilities (see Exhibit "A") to determine their rate structure. The results of the survey will be used, although not the determining factor, in setting selected rates for the facility for a period of 90-days and then a ceiling for the final 275 days of the first year of operation. Jointly, the City Manager (or his designee) and Contractor will establish the 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 rates of the items above shall be jointly set and in place for the first ninety (90) days after the start date of this contract. Thereafter, the contractor has the sole right to adjust fees up to the maximum set for the final 275 days of the first year of the contract. Contractor may not exceed the maximum without written approval from the City Manager (or his designee). Ninety (90) days prior to the conclusion of the first year of the contract, the Contractor shall complete a survey of area and comparable golf facilities (see Eachibit "A") to determine their fee structure. For the remainder of the contractor period, the city and contractor shall jointly set a maximum for fees, charges and structure of the items listed above. Contractor may not deviate from the established maximum without written approval of the City Manager (or his designee). The process of surveying area and comparable golf facilities (in Exhibit "A") and setting a range for the rates, fees, shall continue for the duration of the contract and any additional renewal terms. (B) Payment to Citv. The parties agree the City shall receive a base percentage split from the following sources: all paid green fee revenues; all paid revenues from the driving range (excluding lessons and clinic revenue); electric golf cart rentals; paid tournament fees; net food and beverage revenue, including alcoholic beverages (Net Food and Beverage Revenue is defined as the total revenue from food and beverage sales less cost-of-sales, which excludes labor); net pro shop sales (Net Pro-Shop sales are defined as the total revenue from pro shop sales less cost- of-sales, which excludes labor); association/club membership fee; and rental fees for Clubhouse and Pavilion; and other revenue as may occur. The base percentage shall be based on the following schedule: • 2.5% of the first $750,000 in total gross revenue in a given fiscal year, • 15% of the next $350,000 in total gross revenue, • 40% of the next $500,000 in total gross revenue, • 35% of the next $500,000 in total gross revenue, and • 30% thereafter. (C) Collection of Revenues. Contractor agrees that all revenues received in connection with operation of the Pro Shop, whether from sale of inerchandise, food and beverage sales, collection of green fees, electric cart rentals, driving range revenue, or otherwise, shall be run through the Pro Shop cash registers. 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 Generally Accepted Accounting standards. 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 is 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 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. (D) 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. (E) Pavments to Citv. All amounts due to the City under this Agreement shall be remitted by check on a quarterly basis and accompanied by such reports as the City may reasonably require. In the event there is an overpayment to the City in a given quarter, 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 �te�rt� quarter. (F) Sales Tax. Contractor shall collect and pay all sales, use, alcoholic beverage and similar taxes on taxable goods and services sold under this Agreement. Contractor shall pay and discharge all franchise taa�es 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. (G) Right to random checks. The City shall have the right to randomly inspect receipts from customers. Article VIII. Maintenance (A) Paxment of Buildin� and Facility Utilities. Contractor 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. Contractor shall have the option of paying the utilities directly or reimbursing the City, should the City be able to get a better rate. 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 at no cost to contractor. (B) Maintenance of Golf Courses Facilities. Contractor agrees to maintain the golf course to the maintenance standards found in Exhibit "C". The maintenance practices are to be such that not only will the current appearance be comparable to those courses listed in Exhibit A, but that the long-term asset value is protected. (C) AQronomist 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 S s� tem. Contractor agrees to keep the irrigation system, including pump, pump house, all piping and sprinkler heads, and radio controls in good operating condition. Contractor 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. Contractor is responsible for all routine maintenance and replacement of consumable items. For the purposes of this contract, "routine maintenance" includes minor repairs not to exceed two thousand dollars ($2,000) per occurrence, excluding labor. For the purposes of this contract, sprinkler heads are considered a consumable item. Article IX Independent Status/Indemnification/Insurance (A) Inde�endent 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 bilis 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 includes any liability arising through the doctrine of strict or products liability and any (iability arising under the constitutions of the United States or Texas. Contractor will vigorously defend any Liability, even those allegediy caused by the negligence or other fault of any Indemnified Party. Upon the resolution of the Liability (the "Decision"), should the trier of fact, adjudicator, or other mutually agreed upon assessor of the Liability (the "Adjudicator") determine that the City or any Indemnified Party is a greater than 50% contributor to the Liability through negligence or intentional wrongdoing, then the City will pay, to the extent provided by law, the City's percentage of award assessed by the Adjudicator in the Decision and reimburse Contractor for the legal defense costs paid by Contractor based upon City's percentage liability. The City will not be liable to the Contractor for reimbursement of any legal defense or claim costs paid by any insurance company or third party defendants to the claim. Any reimbursements due under this section will be made by the City to the Contractor within 45 days of the Decision. 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 reimbursement provision set out above. (C) Insurance and Certificates of Insurance. Without limiting any of the other obligations or abilities of the Contractor, the contract 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 ( fl 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) Properly 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. (� The policy shall be written on an occurrence basis. (4) Liquor Legal Liabilitv Insurance. Shall include coverage for on-premises consumption including all City-owned property with 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. 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 Contractor shall remain responsible for removal of the all of his equipment prior to the expiration date and full payment to City of all sums due. Contractor shall conduct any necessary minor repairs (not to exceed $2,000) to return the premises to the condition as of the Start Date, normal wear and tear excepted. If Contractor terminates this Agreement or if the City terminates this Agreement, the City may purchase all Weeks Park logo merchandise in the Pro Shop at Contractor's wholesale cost as shown by an audit of the books, less ten percent (10%) and may purchase at fair market value such items of Contractor's equipment, fixtures, operating supplies or furniture as City may desire. The fair market value of Contractor's merchandise, equipment, fixtures and furniture shall be established by an appraisal conducted by a qualified independent appraiser who is acceptable to both parties. Payment for such merchandise, equipment, supplies, fixtures, and furniture shall be made to Contractor within thirty (30) days of termination. (D) Force Majeure. (1) Dama�e 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 M�eure 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 negligcnce 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 erclusive venue for any action arising out of this Agreement shall be in Wichita County, Texas. (E) Ass�nment and Sublettin�. 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 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. 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. Contractor shall provide personnel as may be necessary to adequately supervise and administer the operation of the Pro Shop and Golf Course. (F) Para�ravh Headin�s• 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) Bindin 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) E�chibits. 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 A�reement. 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, uational origin or disability in the golf course and concession operation or in providing any service contemplated by this Agreement. (M) Contract Documents. It is the intent of the contract documents that they are read as a whole and that all portions of the contract are interpreted so as to give meaning to their terms. In the event of any conflict in the contract documents, the following order of precedence shall govern among the various contract documents, with the first listed having precedence over any documents listed thereafter. Management Services Agreement Exhibits A, B and C (N) Notices. Any notice required or desired to be given from one party lo 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 1300 7` Street Wichita Falls, Texas 76301 If to Contractor: 1� ��I�S t.�- t� 1.0 1�I•G C� �-1�'� k— a p, �t ��,��a�. �f �So�� (0) 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, t parties have executes this agreement on the dates indicated below. E CITY F WICHITA F L S, TEXAS Contract : , By: By: Darron J. Leiker, City Manager Garry Black, Weeks Golf Cluh, I,i,C Date: �- O � v � Date: 3 � � � � (�� APPROVED AS TO FORM: �� - T By: Bill Sullivan, City Attorney Date: �� � 7 ATTES : By: Lydia Ozuna, i 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 Texas Star, Euless, Texas Tierra Verde, Arlington, Texas Bridges Course at Firewheel, Garland, Texas 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; 1. Comparable group; the golf course is to be operated in a manner consistent with standards seen for courses in the Comparable Group (E�chibit "A"). 2. Customer Service: 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. 3. Beverage Cart Service: Beverage Cart Service shall be offered seven days a week during the period April 1 S ` through October 1 St , and no less than five days a week during March, October and November; and no less than during weekends during December through February. The only exceptions being days when there is adverse weather defined as being excessive precipitation or an expected high of less than 50 degrees. 4. Staffing: 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 two pro shop attendants 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. 5. Starters: 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 twosames 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. Instruct the golfer(s) on the operation of the GPS (if applicable) e. Inform the golfers as to presence or absence of beverage cart service f. 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 Avera�e Golfer. All areas inspected daily bv the S�erintendent. 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. GREENSORROUNDS 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. TEESLOPES 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 ��iew 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. CLUBHOiJSE AREA . CLUBHOUSE GROU aD ar m n aned o Golf Standa d obbetter oviding Beds, Lakes and Hard Su 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 g pp y y System including Valves, Sprinklers, Controllers, Pumps and Irri ation Water Su 1 S stem 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 C�as� A easMa nt�a nedt m et St te and Fed al Standa�ds; Shop and Management; Equipment Applicators Certified, use approved Protective Clothing and follow State Procedures. Fuel tanks tested with up-to-date Records maintained. MAINTENANCE EQDIPMENT 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 FENCING All Fencing, including Chain Link, Block, Wire, Cable or other type construction inspected dai y and properly maintained. Gates and Locks in good working order. SAFETY All areas within the property maintained in a Safe condition with Traffic Control, Signs, Fencmg and other measures necessary to insure a safe environment for Players, Staff, Visitors and Others Chemicals and pesticides applied and recorded properly. All staff inembers made familiar with the Emergency Procedures.