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HomeMy WebLinkAboutRES 00-171 RESOLUTION NO. ' % BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a ten (10) year agreement with Thomas A. Hebert for operation and maintenance of the Henry Homberg Golf Course substantially in the form attached hereto. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1 day of r 2000. - Mayor- GAMRESOIUTMGENDA.00 THE STATE OF TEXAS ¶ COUNTY OF JEFFERSON ¶ HENRY HOi`IBERG GOLF COURSE OPERATION AND MAINTENANCE AGREEMENT THIS AGREEMENT is made and entered into this day by and between the City of Beaumont, a Municipal Corporation of the State of Texas (herein called City) and Thomas A. Hebert, a professional golfer domiciled in Jefferson County, Texas (herein called Hebert), for the operation of the Henry Homberg Golf Course, located within Tyrrell Park in Beaumont,Texas and owned by City (herein called Golf Course). WHEREAS, City has right, title and interest in and to the facilities and privileges hereinafter granted, and has full power and authority to enter into this Agreement in respect thereof, and WHEREAS,Hebert desires to operate and maintain the Golf Course upon the terms and conditions hereinafter stated; NOW, THEREFORE, in consideration of the mutual covenants and considerations herein contained, City lets and demises to Hebert and Hebert takes from City the Golf Course and all described rights incident thereto, subject to the following: Article 1 TERM OF AGREEMENT 1.1. This Agreement shall commence on the Is`day of January 2000 and terminate ten(10)years after completion and acceptance by the City of the improvements contemplated by this Agreement,said term to be the same as the SBA Guaranteed Loan Hebert has obtained from Hibernia National Bank, not to exceed ten (10) years. 1.3 Hebert agrees that upon the expiration of the primary term or extension of this Agreement or sooner cancellation thereof, the Golf Course will be delivered to City in good condition, reasonable wear and tear accepted. EXHIBIT "A" Article 2 RENTAL, FEES AND PAYMENTS 2.1 During the term of this Agreement and any extension thereof, except as provided in Article 8 hereof, Hebert shall pay the City Two Thousand and Five Hundred Dollars ($2,500) per month as rental, plus five percent (51'0) of the gross receipts collected by Hebert in the operation of the Golf Course, subject to a minimum annual payment of Sixty Thousand Dollars ($60,000). The term"gross receipts" is defined to exclude revenue related to sales taxes and wholesale trading. 2.2 Such payments shall be made by Hebert on or before the fifteenth day of each month and shall be accompanied by a summary statement of monthly gross receipts collected by Hebert. Rental fees shall be payable in advance and all other payments shall be paid following the calendar month collected. Hebert shall promptly pay, as they become due and payable, all other indebtedness, obligation and other amounts owing or incurred by him under this contract. 2.3 Hebert shall keep and maintain a complete and detailed accurate set of books and records of daily entry accounting for receipts related to the operation of the Golf Course and such books and records shall be available for examination by City at any and all reasonable times. Article 3 OBJECTIVES AND PURPOSE OF AGREEMENT 3.1 For the term of the Agreement,Hebert shall be qualified,authorized and herewith designated official in possession and control of all real and personal property known as the Golf Course as shown in Exhibit A and all personal property belonging to City upon said Golf Course, The Golf Course will continue to be owned by the City during the term of this Agreement and any extension thereof. 3.2 Hebert shall, at his own cost and expense, operate, manage and maintain said Golf Course, driving range, surrounding grounds, clubhouse facilities and equipment storage areas in fit and proper order suitable for the playing of golf thereon, and in accordance with the minimum standards as set forth in Exhibit B attached and made a part hereof. Article 4 OBLIGATIONS OF HEBERT 4.1 Hebert shall at his own cost and expense: 4.1.1 furnish all personnel and labor necessary for the normal maintenance and operation of said Golf Course, clubhouse, grounds and other facilities, 4.1.2 acquire and furnish all equipment, including tractors, trailers, mowers, and similar equipment and tools, necessary to operate and maintain the Golf Course in fit and proper order and condition as provided in Article 3, 4.1.3 furnish and maintain in good operation condition an adequate number of golf carts to meet ordinary and reasonable requirements, 4.1.4 acquire and furnish inventory and merchandise necessary to fulfill the needs for said clubhouse and pro-shop in connection with playing golf, 4.1.5 provide adequate personnel,including a starter when required,to assure enforcement of the rules and regulations established for play upon Golf Course. 4.2 Hebert shall maintain his professional golf association certification as a Class A Professional throughout the term of this Agreement and any extension thereof. 4.3 Hebert agrees to conform to all rules of the Parks and Recreation Department, or that City department having jurisdiction over the Golf Course, all ordinances, state and federal laws and all house rules established for the facilities. Hebert shall comply with all rules and regulations concerning the sale of alcoholic beverages in City parks. 4.4 Hebert agrees to comply with Texas Department of Agriculture rules and regulations regarding the use and application of pesticides. 4.5 Hebert shall promptly pay as it becomes due and payable all indebtedness, obligation or other amounts owing or incurred by him under this Agreement. Article 5 DESIGNATIONS AND AUTHORIZATIONS 5.1 Hebert is herewith designated and authorized to: 5.1.1 establish and fix the fees to be charged and collected from individuals for the use of such Golf Course (greens fees, membership fees) and clubhouse facilities (merchandise, beverage and food prices); provided however that such greens fees, membership fees and related Golf Course fees,and all amendments thereto,must be approved in writing by the City Manager of the City prior to the effective date thereof. Hebert reserves the right to waive fees for promotional,complimentary and charitable play, 5.1.2 establish rules and regulations authorizing individuals to play golf on said Golf Course, with such rules and regulations to pertain to the hours of availability, organizing and authorizing player's starting times, and actual conduct and playing procedure on such Golf Course. A copy of said rules, regulations and fee schedules shall be posted at a prominent location in the clubhouse, 5.1.3 furnish and sell professional lessons in the playing of golf from and on said Golf Course premises, 5.1.4 purchase, own and sell merchandise and equipment in said clubhouse for use in playing golf, 5.1.5 own, maintain and rent golf carts for use in playing golf on said Golf Course; provided, however, individuals may use their own golf carts with the approval of Hebert, 5.1.6 sell beverages, food, tobacco and such other items and services as are reasonably commensurate with the maintenance and operation of a municipal golf course and clubhouse. Article 6 INDEMNITY AND INSURANCE 6.1 Indemnity 6.1.1 Hebert shall indemnify and hold harmless the City against any and all claims, obligations,costs,judgements and attorney's fees arising from or growing out of the operation and maintenance of the Golf Course, driving range, clubhouse, golf pro- shop and related facilities; provided, however, that the indemnity provided herein shall specifically include allegation of the negligent acts and omissions of the City, its officers, agents and employees. 6.2 Insurance 6.2.1 Prior to the execution of this Agreement,Hebert shall furnish a completed Insurance Certificate to the City Clerk. The certificate shall be completed by an agent authorized to bind the named undenvriter(s)to the coverages,limits,and termination provisions shown thereon, and shall furnish and contain all required information' referenced or indicated thereon. City shall have no duty to pay or perform under this contract until such certificate is received by the City, and no officer or employee of the City shall have authority to waive this requirement. 6.2.2 Subject to Hebert's right to maintain reasonable deductibles in such amounts as are approved by the City,Hebert shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension thereof, at Hebert's sole expense, insurance coverage written by companies approved by the State of Texas and acceptable to the City, in the following type(s) and amounts: 6.2.2.1 Workers' Compensation and Employer's Liability - Statutory Amount. 6.2.2.2 Commercial General (Public) Liability - Combined single limit for bodily injury and property damage of$500,000 per occurrence or its equivalent with an aggregate limit of$1,000,000. Including coverage for the following: 6.2.2.2.1 Premises operations, 6.2.2.2.2 Independent contractors Products/Completed operations, 6.2.2.2.3 Personal injury, 6.2.2.2.4 Advertising injury, 6.2.2.2.5 Contractual liability, 6.2.2.2.6 Medical payments, 6.2.2.2.7 Liquor liability. 6.2.2.3 Comprehensive Automobile Liability for vehicles used by Hebert in his operations hereunder-Combined single limit for bodily injury and property damage of$500,000 per occupance or equivalent. 6.2.3 Hebert agrees with respect to the above required insurance, all insurance contracts and certificate(s) of insurance will contain and state, in writing, on the certificate or its attachment, the following required provisions: 6.2.3.1 Name the City of Beaumont and its officers, employees, and elected representatives as additional insured(s), as the interest of each insured may appear, to all applicable coverage. 6.2.3.2 Provide 15 days notice to City for cancellation, non-renewal, or material change. 6.2.3.3 Hebert agrees to waive subrogation against the City, its officers, employees, and elected representatives for injuries,including death,property damage,or any other loss to the extent same may be covered by the proceeds of insurance. 6.2.3.4 Provide that all provisions of this Agreement concerning liability,duty, and standard of care together with the indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. Article 7 TERMINATION 7.1 Termination by City 7.1.1 In the event that the City determines, in its judgement, that any one or more of the provisions of this contract are being breached or violated by Hebert, it shall notify Hebert thereof in writing, therein setting forth such breach or violation and a sufficient time for correction. In the event Hebert fails to correct such breach or violation in the time allowed, the same shall, at the sole option of the City, serve to terminate this Agreement within sixty(60)days of legal notice. Such termination of the Agreement by City shall not deprive it of its lawful rights and pursuits to recover any and all amounts owing to it by Hebert up to and including the date of such termination. 7.1.2 Upon termination of this Agreement, City shall have the right of reentry and may remove all persons and property from the premises and may store such property at a public warehouse or elsewhere at the expense of, and for the account of Hebert. 7.1.3 In the event Hebert should die or become physically unable to perform and complete this Agreement during the term or any extension thereof, Hebert or his lawful representative shall agree to negotiate fair and reasonable terms to ensure the continuity of operation at this public facility during the interim period required to secure the services of a replacement contractor. 7.1.4 This Agreement may only be terminated in accordance with the provisions stated within. Should the City attempt to terminate or in any way accomplish a tennination of Hebert's rights under this Agreement in any method not in accordance with this Agreement, City agrees to assume and pay the unpaid principal amount due to a lender for amounts borrowed for the construction of improvements required by Article 8 of this Agreement. The City shall, in no event, be required to assume any debt associated with maintenance and operational expenses of the Golf Course or any amounts not associated with written proof of contracts for the purchase of goods or services from third parties (not employees of Hebert) necessary to complete the construction of improvements required under this Agreement. 7.2 Termination by Hebert 7.2.1 Hebert shall have the right to terminate this Agreement upon ninety(90)days written notice of its election to do so. In the event Hebert should terminate this Agreement, Hebert agrees to negotiate fair and reasonable terms to ensure the continuity of operations at this public facility during the interim period require to secure the services of a replacement contractor. Article 8 IMPROVEMENTS TO GOLF COURSE 8.1 Improvements by City 8.1.1 The City may, at its own cost and expense, make capital improvements to the Golf Course, driving range, surrounding grounds, clubhouse facilities, and equipment storage areas, subject to the appropriation of City funds thereof. The City shall consult with Hebert prior to making said capital improvements. 8.2 Improvements by Hebert 8.2.1 As consideration of this Agreement, Hebert must provide the following improvements at Hebert's expense, in accordance with USGA specifications and plans approved by the City Manager or his designee,within a twenty-four(24)month period commencing on January 1, 2000: 8.2.2.1 Complete reconstruction of the greens with tiff dwarf grass. 8.2.2.2 Reconstruct tee boxes and provide two separate tee boxes for each hole. 8.2.2.3 Installation of new fairway irrigation system for all holes. 8.2.2 Fees and rentals, as required by Article 2, owed the City will be abated for a maximum construction period of four (4) months per year in a twenty-four (24) month period commencing January 1, 2000 for completion of required improvements,or in the alternative,Hebert may opt to abate fees and rentals for eight (8) months in a twelve (12) month period. The annual minimum pay will not apply during either the twenty-four(24)month or the twelve(12)month abatement period. Construction period is defined as that period in which nine holes or more are out of service and unavailable for play. Construction must be completed within twenty-four (24) months from the commencement date of this Agreement. 8.2.3 Upon termination of this Agreement,all improvements to Golf Course shall become the property of City. 8.3 City agrees that rights of City to collect rents as set out in Article 2 hereof are and shall remain subordinate to the rights of an institution which provides financing for the projects contemplated by this Agreement to collect under its note(s)and security agreement(s),if any, associated with monies loaned by such financial institution to Hebert for the purpose of making improvements required by Article 8, Section 8.2 hereof. This subordination shall include any assignment of revenues or rents provided by Hebert to such financial institution. Hebert may exercise his rights under this subordination provision by providing the City thirty (30)days advanced notice in writing of the reason or reasons that subordination is necessary. City will notify the Lender of such action and shall have 10 days within which to investigate the necessity of the cessation of payment of rent to the City. City and Lender will share information related to the necessity for such cessation in the payment of rent, and the cessation will only occur if the Bank agrees that it is necessary to provide sufficient cash flow to Hebert to operate the Golf Course and make payments to Lender. Should Bank agree that subordination in the payment of rents to the payments due Lender is necessary the cessation in payment of rents shall commence on the month following the month in which the decision to allow subordination is made. Any cessation in payment of rents to the City shall expire after six(6)months(or an earlier date as agreed to by City and Lender)and may only be reinstated by the procedures provided for in this paragraph 8.3. 8.4 Subordination by City does not relieve Hebert from the obligation to pay rents as required by Article 2;however,during the course of this Agreement and during the time that rents are not being paid to City, because of exercise of this subordination provision, City agrees not to exercise any option to terminate this Agreement for failure to pay rent which City may have under the terms of this Agreement. Article 9 GENERAL PROVISIONS 9.1 The services called for herein shall be performed by Hebert as an independent contractor,and City shall not be liable for the manner of discharge of such services. 9.2 Hebert shall be an independent contractor, not an employee of the City, and all persons employed by Hebert shall be his employees and shall not be employees of the City. 9.3 This Agreement shall not be transferred or assigned to any party, in any manner whatsoever, by Hebert without the prior written approval of the City Manager or his designee. 9.4 No waiver by either party of a breach by the other shall be construed or held to be a waiver by such party of any succeeding or preceding breach by the other party of the same or any covenant, condition, or restriction herein contained. 9.5 Where changes to activities or areas included in this Agreement are made, such modifications must be in writing and signed by both parties. 9.6 If any term or provision of this Agreement shall,to any extent,be invalid or unenforceable, the remainder of this lease shall not be affected thereby and each other term and provision of this lease shall be valid and be enforced to the fullest extent permitted by law. 9.7 With respect to the Golf Course, Hebert assures that it will undertake an affirmative action program to ensure that no person shall on the grounds of race,creed, color, sex,or national origin be excluded from participating in any employment activity. Hebert assures that no person shall be excluded on these grounds from participating in or receiving the senices or benefits of any program or activity covered by this Agreement. 9.8 Any written notice to be given hereunder by either party to the other party shall be affected by certified mail, return receipt requested. Either party may change the address for notice to it by giving written notice of such change in accordance with the provisions of this section. 9.8.1 Notice to Hebert shall be sufficient if made or addressed to: Thomas A. Hebert P. O. Box 20436 Beaumont, TX 77720 and Hibernia National Bank Pierce Harrington 510 Park Street Beaumont, Texas 77701 9.8.2 Notice to the City shall be sufficient if made or addressed to: City Manager City of Beaumont P. O. Box 3827 Beaumont, TX 77704 9.9 This Agreement constitutes the entire agreement between the parties and no changes, amendments or modifications hereof shall be valid or recognized unless in writing and signed by both parties. 9.10 The City acknowledges that Hebert has obtained, a U.S. Small Business Administration Authorization for an SBA Guaranteed Loan, the proceeds of which will be to renovate/improve the Golf Course. Accordingly, notwithstanding anything to the contrary contained in this Agreement, the City agrees to subordinate to Hibernia National Bank, its successors or assigns (hereinafter referred to as "Lender"), the City's interest, if any, in the personal property which is the subject of this Agreement, and, after a 30 day notice to the City that Hebert has become delinquent in payments to Lender, to allow Lender the right to take possession and dispose of or remove Lender's collateral to the extend that such collateral has not become attached to or part of the real property of City. Further, the city agrees to a collateral assignment of Hebert's interest in this Agreement and hereby agrees to subordinate its interests in any personal property which is collateral for the SBA Guaranteed Loan. The City, as Lessor, will provide Lender/SBA a 60 day written notice of its intent to terminate the Agreement, providing to Hebert the reason or reasons for the termination and providing 60 days within which to cure the default to the satisfaction of City. 9.11 The Exhibits A and B attached hereto are hereby made a part of this Agreement. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed as of the date first mentioned above at Beaumont, Texas. CITY OF BEAUIIIONT: THOMAS A. HEBERT: Stephen J. Bonczek Thomas A. Hebert EXHIBIT "A" HENRY HOMBERG GOLF COURSE Fannett Road N Park boundary Tyrrell Park Road Hillebrandt Bayou Main entrance '� •�Golf::` our ' Babe Zaharias Drive '�;Golf:;::•:;::::::.; •�:;::�:: Park boundary ':\,s Course`;::.- ::;,, yam. •> ;%:i:�:•: {i•: Downs Road entrance TYRRELL PARK Park boundary 1 City Limits CITY OF BEAUMONT Golf Course BEAUMONT,TEXAS March 2000 EXHIBIT "B" MINIMUM STANDARDS FOR MAINTENANCE AND OPERATION OF GOLF COURSE I. GROUNDS, CLUBHOUSE, REST ROOMS A. Keep clubhouse, rest rooms, and store shelter clean and orderly at all times. B. Maintain landscaping, grounds and trees surrounding golf course at Parks and Recreation Department Standards. II. TURF GRASS MAINTENANCE A. Mowing Heights and Frequency: 1. Roughs 1 %z" 2 times a month 2. Fairways Yz" 1 time a week 3. Greens 3116" 6 times a week 4. Tees ''/z" 2 times a week During the non-growing season, golf course will be mowed as needed to maintain proper height of grass. B. Fertilize all greens and tees once per month. Fertilize all fairways once per year. C. Provide proper amount and frequency of watering necessary to maintain good growth and color of grass. D. Aerate greens twice per year. Aerate tees once per year. Verti-cut greens twice per year to control thatch and grain. E. Control turf grass disease, insects and weeds with chemical treatments on as-needed basis. F. All greens and tees to be top dressed with sand twice per year. III. SAND TRAP MAINTENANCE A. Rake traps twice per week. B. Trim grass edges of traps twice per year. C. Furnish and add sand as need--d. W. GOLF SERVICES A. Provide golf lessons. °,. Provide pull ca.,s, electric cars, and gollf clubs for rent. C. Provide club storage facilities, and lockers for rental. D. Provide starter on #1 tee to con irol player starting times. E. Provide ranger/marshall to patrol Coif course, and to assure compliance v;,.*._ auje - F. Provide snack bar for sale of drinks; candy, sandwiches, etc. G. Provide golf shop fos safe of golf equipment and merchandise.