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HomeMy WebLinkAboutordinance.council.064-89 ORDINANCE NO. 64 (Series of 1989) AN ORDINANCE APPROVING AN AGREEMENT BETWEEN ASPEN SPORTS, INC., A COLORADO CORPORATION, AND THE CITY OF ASPEN, COLORADO, PROVIDING FOR THE OPERATION AND MANAGEMENT OF THE PRO SHOP LOCATED AT THE ASPEN CHAMPIONSHIP GOLF COURSE, SETTING FORTH THE TERMS AND CONDITIONS FOR SAID OPERATION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN WHEREAS, there has been submitted to the City Council an agreement between Aspen Sports, Inc., a Colorado corporation, and the City of Aspen, which agreement provides for the operation and management of the Pro Shop located at the Aspen Championship Golf Course, a copy of which agreement is annexed hereto and made a part hereof, the term of which agreement shall be five (5) years commencing with the 1990 golf season. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that agreement between Aspen Sports, Inc., a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor to execute said agreement on behalf of the City of Aspen. Section 2 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 3 Nothing in this ordinance shall be construed to affec any right, duty or liability under any ordinances in effect pri ~r to the effective date of this ordinance, and the same sha].l be continued and concluded under such prior ordinances. Section 4 A public hearing on the ordinance shall be held on the r?~ day of //~/~7~J~ , 19~, in the City Council Chanbers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the <~-~/<~ d~Ly of ATTEST: William L. S~ r Kathryn~. Koch, City Clerk FINALLY adopted, passed and approved this ~ day of ATTEST: William L. Sti~ling, bla~or ~ity C 'Kathryn~.'Kodh, lerk 15/SD2 -2- PROFESSIONAL SERVICES AGREEMENT THi~ AGREEMENT entered into at Aspen, Colorado, this day of ~&~~;~ , 19~PO , by and between the City of Asp,e,n, Colorad~/, a munlc~al corporation and home rule city ( Clt5 ), and Aspen Sports, Inc., a Colorado corporation ("Operator") . W I T N E S S E T H: WHEREAS, City is the owner of the Municipal Golf Course in Aspen, Colorado, and desires to contract with an operator to provide certain services including, but not limited to, golf pro shop operations, golf-related retail sales, golf lessons, golf course rentals, collection of daily green fees and punch pass fees, golf p~actice range, golf tournament, and event organiza- tion and liaison, and play reservation and management; and WHEREAS, Operator now operates a retail sporting goods shop in Aspen, Colorado, has experience in managing golf operations and desires to contract with the City to provide the above- described services, has submitted a proposal to provide the above-described services, which proposal has been incorporated herein and made a part hereof; and WHEREAS, Operator has agreed to provide certain services relative to the golf course and assume the cost therefor, as well as provide services regarding the general operation of the golf course program, including retail sales and the collection of green fees; and WHEREAS, the parties have agreed that Operator's compen- sation shall be established on the basis of a share of the gross receipts from the operation of the golf course and golf pro shop as set forth in this Agreement (which receipts shall specifically not include green fees and punch pass fees, which shall be the sole property of the City, or payments for lessons, which shall be divided between City and Operator as herein provided); and WHEREAS, the Aspen City Council, by Ordinance, authorized the Mayor to enter into this Agreement on behalf of the City of Aspen, Colorado. NOW, THEREFORE, in consideration of the mutual terms and conditions herein, the parties agree as follows: This Agreement shall be effective as of April 1, 1990, and shall be automatically renewed on an annual basis for a period of five (5) golf seasons on November 1 of each year (i.e., "annual anniversary date"). In all events, this Agreement and any renewal shall terminate on November 1, 1994. II. DUTIES OF OPERATOR During the term of this Agreement, Operator agrees: A. To provide golf course management and golf pro shop services described in this Agreement for the 1990, 1991, 1992, 1993 and 1994 golf seasons. For purposes of this Agreement, a "golf season" shall mean that period from April 1 to November 1 of any given year, unless otherwise agreed in writing by the pa~ties. B. To employ and retain for the benefit of City, at Operator's sole cost and expenses, employees of sufficient number and qualifications to operate the golf course and the golf pro shop consistent with the highest standards established by the Professional Golf Association (PGA) for similarly situate municipal golf courses. Operator shall employ at least one (1) "Class A" golf professional as defined by the PGA, who shall have the responsibility and duty of overseeing the golf course management and pro shop services set forth in this Agreement, as well as perform such other services customarily performed by - "Class A" golf professionals. All employees of Operator, including the golf professional, must meet the approval of City prior to and during the course of employment. C. To perform the following general duties which shall be under the direct supervision of the golf professional: 1. Supervise, as directed by the Director of Golf Leisure Services, the starting play of golfers. 2. Supervise and collect for the benefit of City all green fees and pass fees in accordance with the City price structure. 3. Operate a handicap system which is updated at least monthly during the season. 4. Employ and supervise competent personnel such as assistant professionals and starters in the performance of their duties, supervise rangers in accordance with such personnel rules as may be determined by City. 5. Enforce all rules and regulations governing the use of the golf course, power golf carts, pull golf carts and other golf facilities with the utmost consideration and discre- tion so as to promote the enjoyment of the game of golf. 16/SD2 -2- 6. Maintain close relationships and direct communica- tions and cooperation with Aspen Golf Superintendent and the Director of Golf. 7. Assure that the golf professional and assistant professional shall devote a reasonable number of hours to playing golf with the patrons of the golf course. This service shall be offered to all golfers regardless of ability, shall be rendered free of charge, and shall not be considered a playing lesson. Operator shall provide weekly hourly sheets indicating the number of rounds played in compliance with this section. 8. Plan golf evenings to promote golf and sportsman- ship on the golf course, prepare golf clinics, films, etc., for such evenings. Prepare rules, clinics, and golf educational programs. 9. To insure the golf professional and his assistants shall endeavor to represent the course in professional golf activities, including the local section of the PGA and in tourna- ments such as the Aspen Pro Am through the local golfers and state or national golf events as time will permit. 10. Establish good working relationships with the Men's and Women's Golf Associations, attend meetings and organize and run the City championships for each of these organizations. 11. Plan, organize and submit for approval by the Director of Golf a schedule of tournaments and events for each season, coordinating with Director and Superintendent the scheduling of applicable tournaments and promotional information with local Western Slope PGA calendar. 12. Secure sufficient golf carts for special events. 13. Supervise the starting time in an orderly and efficient manner. 14. Supervise the assignment of golf carts. 15. Maintain all golf carts and related golf equipment under the Operator's supervision. 16. Prepare events, cards and scoring sheets. 17. Post all event information on the bulletin board, including rules under which each event shall be played. 18. Prepare and distribute event information sheets for participants. 19. Keep the tournament field and the starting times schedule. 16/SD2 -3- 20. Keep players in the field moving with the assistance of rangers. 21. At all events, to record scores, determine winners, and to be available for rule decision making. 22. Instruct and test juniors in the knowledge of golf rules and etiquette. 23. Prepare and plan a junior golf tournament and events. 24. Collect, for the benefit of the City, all green fees and punch fees to assure that individuals will not play on the golf course without payment of such necessary fees, unless such individual is entitled to free play by prior arrangement with the City. 25. To keep records and accounts in regard to the operation and management of the golf course and golf pro shop, which records and accounts shall at all reasonable times be available for inspection by the City's auditors and/or the Director of Finance. The City's Director of Finance shall inspect the current system and make appropriate changes, if necessary. 26. Collect and pay over daily to City its share of gross receipts. 27. Provide a minimum of twelve (12) sets of rental golf clubs of which eight (8) shall be high-end sets (for example, Ping or Ben Hogan). 28. Operator shall upgrade the golf pro shop, which shall be done in the form of refixturing. Operator shall provide an open catalog for special orders of shoes, golf clubs, in addition to in-stock selections. The office shall be upgraded to include filing cabinets, desks and chairs. Operator shall provide two (2) cash registers so as to alleviate counter jam-up and make it easier to balance daily sales. 29. Operator shall investigate automating the tee sheet in order to track no-show tee times and to insure that non-registered players are not allowed on the course. 30. Operator shall provide for golf students a video for teaching and the general viewing of tapes and old tournaments. The video equipment shall be available in the pro shop for teaching and general viewing of tapes. Further, Operator shall provide a high-tech club fitting service, tied to the driving range demo program. Operator shall request all companies from whom they purchase equipment have a "representative day" to show and demonstrate equipment. Such "representative day" shall be advertised and performed on Saturdays. 16/SD2 -4- D. Pro Shop Inventory. Operator shall have an inventory level of One Hundred Forty Thousand Dollars ($140,000.00) at its peak. Gift certificates from tournaments shall be redeemable from Aspen Sports, which shall have an inventory level of between Five Hundred Thousand Dollars ($500,000.00) and Six Hundred Thousand Dollars ($600,000.00). Gift certificates issued or purchased at the golf shop and used at Aspen Sports shall be considered part of golf shop sales for percentage rent calculations to the City. E. Club Repair. Operator shall maintain a full-time, overnight (unless major repairs are required) club repair service on-site. Operator shall service everything from re-grips to re-shafts to refinishes of golf clubs. Problems with manufacturers' products shall be returned to the manufacturer even if Operator does not sell that line of product in the shop. F. Locker Room Amenities. Operator shall repair any malfunctioning lockers to their original working condition. G. Bag Pickup Service. Operator shall provide a bag pickup service in the parking lot and a retrieval system for golf carts. This service shall be designed to improve the speed of play and will be provided at peak times as designated by the Director of Golf. H. Cart Rental. Operator shall acquire, at its cost, forty-five (45) new electric carts as described hereinbelow in addition to the fifteen (15) existing carts. Operator shall have sixty (60) carts available on any given day for use at the golf course. 1. Operator shall obtain forty-five (45) new electric carts. City shall pay the cost of bringing sufficient electrical power to the shed and Operator shall pay all other costs of electrical service. 2. Of the existing cart fleet, Operator shall retain ten (10) to fifteen (15) carts on hand at all times for special events such as Little Annie's, Mayor's Cup, American Junior Golf Classic, ATC, and the City's use, for a total of sixty (60) carts kept on-site for day-to-day use. 3. Two golf carts shall be kept for use in the parking lot for the pickup and delivery of golf clubs and players in order to upgrade the operation of the golf course. 4. Operator shall also provide one additional cart as a backup for the ranger starter program. 5. Operator shall maintain City's ranger cart. 6. Riding cart rates shall be Twelve Dollars ($12.00) for nine holes and Twenty Dollars ($20.00) for eighteen holes. 16/SD2 -5- Additionally, Operator shall provide a twenty-punch pass ticket for locals. The fee for the pass ticket shall be One Hundred Fifty Dollars ($150.00), which entitles the golfer twenty (20) 9-hole golf cart rounds. 7. Operator shall provide four and three bag mounting racks free of charge for special events upon request of players. 8. Operator shall provide thirty (30) pull carts to be available. The rate structure on pull carts will be Two Dollars ($2.00) for nine holes and Four Dollars ($4.00) for eighteen holes. I. Range Operation. 1. Range Hours. In the months of April and May, the range shall be open from 9:00 a.m. to 6:00 p.m.; from June 1 through September 15, the range shall be open from 6:30 a.m. to 8:00 p.m.; from September 15 to close, the range shall be open from 8:00 a.m. to 6:00 p.m. 2. Range Prices and Passes. The price of a regular bucket shall be Three Dollars ($3.00). Two types of range passes shall be offered. a. A "quality discount pass" consisting of twenty tokens for Twenty-two Dollars ($22.00) (or a bucket price of Two Dollars and Twenty Cents ($2.20)). b. A "premium pass" shall be offered for One Hundred Dollars ($100.00) entitling the holder to one (1) bucket per day. Further, the premium pass may be upgraded to two (2) buckets a day for One Hundred Fifty Dollars ($150.00). 3. Range Equipment. Operator shall provide a backup ball picker, all new baskets (or bags if approved by the Director of Golf), fourteen thousand (14,000) new Spalding balls, improve the fencing on the right and left sides of the driving range at Operator's expense, heighten the fence on the right side and place top soil over rocks within the range. 4. Maintenance of Practice Area. Operator shall perform the following: a. Keep the entire area clean, including, but not limited to, removing trash and broken tees. b. Provide a minimum of four pails, towels and brushes for cleaning clubs. c. Provide trash bins in appropriate places. d. Provide two water coolers in the tee area. 16/SD2 -6- e. Place a bucket of seed, sand and soil mixed to be stored in the starter shed to be applied daily to bad spots in the practice tees. f. Water the practice area on separate sprinkler system. j. Instruction. Operator shall provide the following level of golf instruction: 1. Classes and Clinics Offered. a. Ladies. Clinics will be held two nights per week from 5:30 p.m. until 7:30 p.m., Saturday and Sunday from 10:00 a.m. until 12:00 noon, and Sundays from 2:00 p.m. until 4:00 p.m. These clinics shall be provided at a low cost and shall include instruction, balls and clubs. b. Juniors. Junior instruction shall be on Tuesdays and Thursdays from 8:00 a.m. until 10:00 a.m. Practice and organized instructional play is offered Monday through Friday at 8:00 a.m. until 1:00 p.m. through A.J.G. staff. c. Seniors. Operator shall provide twelve (12) one-hour clinics in'June, July and August. The clinics shall be provided on a low-cost basis. d. Men. Operator shall provide primarily private lessons in addition to the Academy of Golf for men. e. Private Lessons. Operator shall provide private lessons in the form of one hour or one-half hour instruction. The rates shall be as follows: (1) Ernie Fyrwald - $60.00 per hour; $35.00 per half hour; (2) All other instructors - $50.00 per hour; $30.00 per half hour. f. Aspen Academy of Golf. Operator shall coordinate the Aspen Academy of Golf. Operator shall provide staff to service the Academy of Golf's needs. Each out-of-town student shall be charged three days' green fees included in the school price. City shall receive these fees, used or not. Operator has currently scheduled sixteen (16) sessions for the Academy for 1990. Schedule "A" attached hereto lists the dates currently scheduled. This program is to be reviewed on an annual basis by the Operator and the Director of Golf to determine its impact on the golf course operation and to adjust, if necessary, the future scope of operation. K. Ranger/Starter Program. The City of Aspen allocates in its annual budget funds to finance these programs which are 16/SD2 -7- administered by Operator. Staff levels depend upon allocation "from City. Operator intends to use employees in both of these positions for educational purposes in order to implement Opera- tor's current program of improving speed of play on the golf course. In addition, Operator shall supplement the staff levels so as to insure that a majority of the staff is available during peak play, between June 1 and September 30. Operator shall provide a PGA certified professional whose job it is to supervise and run the starting program. Further, Operator shall schedule rangers and starter from opening until June 1 and October until closing as determined by the Director of Golf. Operator shall provide rangers formalized training with a procedures manual. L. Junior Golf. Operator shall provide a junior golf program under the direct supervision of the Director of Leisure Services and Ernie Fyrwald. Operator will introduce etiquette and conduct instruction on the golf course for the program. This program shall consist of two-day organized programs with a video tape and a test conducted by the pro shop. This test shall be required for all Aspen Junior Golf participants. The Aspen Academy of Golf shall provide a three-day complimentary golf school which shall be offered through the Junior Golf program. The Academy shall provide twenty-five (25) participants in the Junior Golf program and process them through three (3) intensive afternoons of instruction. M. Special Events. Operator shall be responsible for supervising, coordinating and implementing special events pro- grams. Operator shall work with the Aspen Golf Course Superin- tendent and the Director of Golf to implement the special events program so as to select the tournaments available having the least impact on resident and tourist use of the golf course. Operator will work with City in regard to fees and the deposit structure, and consider additional fees for additional services such as City vehicles, food on the golf courses, etc. III. DUTIES OF CITY City agrees: A. To provide and maintain the Aspen Municipal Golf Course in a manner reasonably consistent with the standards established by the USGA for similar courses. B. To permit Operator to use, during the period of April 1st to November 1st of each year, the facility consisting of approximately 2,500 square feet located on the golf course property, commonly known as the Golf Pro Shop, for Operator's sole use and occupancy with respect to its duties and privileges under this Agreement. 16/SD2 -8- C. To permit Operator to use during the entire term of this Agreement, the golf course facility presently located on the golf course property for the purpose of storing, housing and maintaining power golf carts. D. To furnish and maintain the practice putting green as presently exists in conjunction with the Aspen Municipal Golf Course. iV. COMPENSATION AND DISTRIBUTION OF GROSS RECEIPTS A. City shall receive, as its total compensation for each golf season, a minimum fee and a share of gross receipts which shall be distributed in accordance with the following formula and procedure. Operator shall tender its payment to City in the following manner: There shall be a guaranteed minimum sum of Forty-Five Thousand Dollars ($45,000.00) per year. This sum shall be paid on April 30, 1990, and eack successive April 30. In addition to the guaranteed payment, Operator shall pay an additional sum of fifteen percent (15%) of all gross receipts, as that sum is defined in Exhibit "B" over Three Hundred Thousand Dollars ($300,000.00). The Finance Director shall assist in the preparation and audit of the fee schedule payment. Additionally, City shall receive all revenue from the greens fees and pass charges, which in 1989 was approximately Four Hundred Sixty Thousand Dollars ($460,000.00). In addition to the foregoing, Operator shall pay to City ten percent (10%) of all net income received by Operator from golf lessons. B. Definition of Gross Receipts. Gross receipts shall mean and include all revenues received from the operation of the golf course or golf pro shop, including, but not limited to, revenues received from golf cart rental, driving range, retail sales, fees from lockers, ball retrieval, and resale income. Deducted from gross receipts shall be all sales tax received and paid to the applicable taxing authority. C. Time of Payment. Operator shall calculate the amount of its gross receipts daily and shall provide City with such calculation of gross receipts in a monthly report, including the daily cash register tapes. Operator shall pay City its share of the gross receipts due and owing on a monthly basis on the first Monday of any succeeding month, if Operator has exceeded its cap as set forth in Paragraph IV(A) hereinabove. Each payment due and owing shall be made payable to the office of the Director of Finance of the City of Aspen accompanied by a detailed accurate financial statement showing the receipts of Operator during the preceding month. D. Inspection of Books and Records. City and its duly authorized representatives shall have the right, during ordinary business hours, without prior notice, to inspect Operator's books and records, and to make copies thereof or extracts therefrom. 16/SD2 -9- E. Late Payment. Any payments hereunder which are not made on the date when due shall accrue a late charge at the rate of two percent (2%) per month, which amount shall be paid by Operator. F. Accounting. Operator shall render to City a monthly statement of all monies received and disbursed in connection with 'the management of the golf course and golf pro shop. The Direc- tor of Finance shall assist Operator in the implementation and management of the accounting process. G. Yearly Increases of Fees. Operator may be permitted to increase all fees as set forth hereinabove in II(H) (6) (8), (I) (2) (a) (b), (J) (1) (e) on an annual basis by submitting a written request to the Director of Leisure Services by October 1 of each year setting forth the requested increases in each category. The Director of Leisure shall respond to Operator's request in writing by October 31, either consenting or denying the requested increases. The Operator may appeal the decision of the Director of Leisure Services to the Aspen City Council whose decision shall be final. USE AND OCCUPATION OF GOLD PRO SHOP BUILDING AND GOLF CART STORAGE SHED In consideration of the duties to be performed by Operator hereunder, Operator shall be entitled to sole occupancy of the golf cart storage shed and golf pro shop building (said buildings may be collectively referred to as "Premises"), upon the following terms and conditions: A. Space. Operator shall use the golf cart storage shed for the purpose of storing and maintaining power electric golf carts and related equipment. Operator shall use the approxi- mately 2,500 square foot space in the golf pro shop building for the purpose of retail sales of golf equipment, clothing and supplies, for storage facilities, for business offices in connection with its duties and responsibilities under this Agreement. Operator shall not use the above-described Premises for any other purposes without the City's prior written consent. Operator's use and occupancy of the above-described Premises shall comply with the rules, regulations and ordinances of any governmental authority having jurisdiction in the Premises or the activities performed thereon. Additionally, Operator shall not use the Premises in any manner that will increase risks covered by insurance on the Premises and result in an increase in the rate of insurance or a cancellation of any insurance policy, even if such use may be in furtherance of Operator's retail sales. Operator shall not keep, use or sell anything prohibited by any policy of fire insurance covering the Premises. 16/SD2 -10- B. Maintenance and Repairs. Operator shall, at Operator's sole expense, maintain the interior of the premises in good condition and repair in accordance with good housekeeping prac- tices. City shall, at its own expense, maintain the exterior of the buildings. City shall reimburse Operator for the expense of any repairs to the buildings which Operator may be required to make which are occasioned by the acts or neglect of City, its agents or employees, and Operator shall reimburse City for the expense of any repairs which City may be required to make which are occasioned by the acts or neglect of Operator, its agents or employees. C. Taxes. Operator shall pay all personal property and other taxes lawfully assessed against the Premises by reason of Operator's use and occupancy thereof. D. Utilities and Security System. The City shall, at its own expense, provide all water, heat and electric utilities for the building. Additionally, the City shall pay for local tele- phone service and telephone calls with respect to the operation of the golf course, but Operator shall reimburse City for all calls unrelated to the operation of the golf course, as may be determined by the Director of Leisure Services of the City of Aspen. A Centurion Security System has been installed at the expense of City, but maintenance and service charges for the security system shall be paid by Operator, if utilized. E. Insurance. Operator shall save and hold City harmless from any liability or injury to any person or damage to property on or about the Premises from any cause whatsoever, and shall procure, at Operator's own expense, for the benefit of Operator and City, fire/casualty insurance in an amount equal to the replacement cost of the golf pro shop building and golf cart storage shed equal to the replacement cost (including inventory, equipment, fixtures and golf carts) and public liability insurance with limits of not less than those set forth in C.R.S. Section 24-10-114, as it may be amended from time to time. Operator shall maintain such insurance in full force and effect during the term of this Agreement and shall furnish the City with a copy of such insurance policy or a certificate evidencing the issuance thereof prior to occupancy of the pro shop and golf cart storage shed. All insurance policies required pursuant to this paragraph shall contain the following endorsement: "It is hereby understood and agreed that this insurance policy may not be cancelled nor the intention not to renew be stated by surety until thirty (30) days after receipt by City, by registered mail of the written notice of such intention to cancel or not to renew." F. Time of Occupancy, Acceptance and Surrender of the Premises. Operator may use and occupy the golf cart storage 16/SD2 -I1- facility during the entire term of this Agreement, as long as it has possession o~ golf power carts which must be stored and maintained. Operator shall be entitled to use and occupy the golf pro shop and golf storage shed during the golf season; provided, however, Operator shall surrender occupancy of the golf cart storage building by November 1 of each year of this lease or at such time as power or electric golf carts are no longer stored in the building and shall surrender the use and occupancy of the golf pro shop building on or before November 1 (or such later date if the golf season is extended) of each year this Agreement is in effect and the Operator shall be entitled to reuse and occupy the buildings on or after April t of any year this Agreement is in effect. Occupancy of the Premises by the Operator shall be construed as recognition that the Premises are in a good state of repair and in sanitary condition. Any personal property of Operator, or anyone claiming under Operator, which shall remain upon the Premises after the date upon which the Premises shall be surrendered, shall be deemed to have been abandoned and may be retained by City as its property, or disposed of by City in such manner as City sees fit. The provisions herein for use and occupancy of the Premises may be varied on written understanding of the parties. G. Signs. Operator shall not place any signs upon the Premises or upon the buildings, except of such design and con- struction as may be permitted by City. Any sign permitted by City shall at all times comply with applicable ordinances, rules and regulations. H. Access to Premises. City shall be entitled to enter upon the Premises at all reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of City's rights hereunder. I. Improvements. Operator shall make no improvements, alterations or additions without the prior written consent of the Director of Leisure Services of the City of Aspen. All al- terations and additions shall remain as part of the Premises, unless the Director of Leisure Services shall otherwise elect in writing. J. No Encumbrances. Operator shall not pledge, hypothe- cate or encumber the Premises with any mortgage or lien indebted- ness without City's prior consent. VI. FEES FOR USE OF GOLF COURSE Ail green fees and punch pass fees or any other fee paid at the course associated with the privilege and right of patrons to use the golf course shall be and remain property of the City and shall be collected by Operator. Ali revenue derived from collection of said fees shall be deposited daily in the Bank of 16/SD2 -12- Aspen, or such other depository as may be determined in writing by the Director of Finance of the City of Aspen. Operator shall not allow any person to play on the course without payment of the necessary fees, if any, required by the rules and regulations of the Golf Course, the express approval of the Director of Leisure Services of the City of Aspen or as set forth in this Agreement. in this regard, Operator shall be entitled to six (6) season passes without charge for such employees as may be designated in writing by the Operator. VII. PROPERTY D~AGES OR INJURY, INDEMNITY Operator agrees to pay all damages for injuries to real or personal property growing out of any negligent act or deed or any omission to act of the Operator or any servant, agent or employee of the Operator (including the golf professional) in connection with the operation of the golf course or golf pro shop pursuant to this Agreement, and Operator further covenants and agrees to indemnify, save and keep the City harmless against all liabil- ities, judgments, costs, damages, and expense from any and all claims of any kind or nature whatsoever which may in any way come against the City for and on account of personal injuries and injury to real and personal property or to the loss of any personal property caused or claimed to have been caused as a result of any negligent act or deed or omission to act of Opera- tor or its servants, agents or employees. VIII. NO PARTNERSHIP OR AGENCY This Agreement is not intended to create any relationship between Operator and City other than an independent contractor, and Operator is neither the agent, partner, employee nor joint venturer of or with the City. Except as otherwise provided in this Agreement, Operator shall not assume or create any financial or other obligation on behalf of the City. No act or assistance given by the City shall alter this relationship. IX. PERFORmaNCE AND BREACH A. When Non-Performance Not Breach. Should either party hereto be unable to, or be delayed in, performing any provision of this contract by reason of fire, strikes, or labor dispute, accidents, acts of God or the public enemy, or similar cause or occurrence, such non-performance or delay shall not constitute a breach hereof. B. Default by Operator. Should Operator, without just excuse, fail or refuse to perform or comply with any provision of 16/SD2 -13- this Agreement, should any bankruptcy proceeding be commenced against Operator, should Operator make an assignment for the benefit of its creditors, or should a receiver appointed for all or a part of Operator's property, then City may, at its option, and in addition to any other remedies which it may have at law or in equity, terminate this Agreement by giving Operator seven (7) days' written notice of its intent to do so. C. Default by City. Should City, ~ithout just excuse, ~ail or refuse to comply with any provision of this Agreement, and if City does not remedy such default within seven (7) days after receipt of a written notice from Operator specifying the nature of such default and demanding its cure, Operator may, at its option, and in addition to any other remedies which it may have at law or in equity, terminate this Agreement by giving City fifteen (15) days' written notice of its intention to do so. D. Final Accounting. Should this Agreement be terminated by either party pursuant to the provisions of this section, a complete accounting and financial settlement shall be made by the parties within thirty (30) days after such termination. Xo ARBITRATION OF DISPUTES Any and all disputes arising out of or in connection with the operation of the golf course and/or the golf pro shop shall be presented to the City Manager of the City of Aspen within five (5) days after the controversy arises, with the understanding that the City Manager will endeavor to mediate such disputes or controversy. XI. GENERAL PROVISIONS A. Assiqnment of Agreement. Neither party hereto may assign this Agreement or interest therein without the consent of the other party. B. Controlling Law. The laws of the State of Colorado shall govern the construction and interpretation of this Agree- ment and the parties stipulate venue in the courts of Pitkin County, Colorado. C. Entire Agreement. This Agreement contains the entire agreement of the parties hereto in relation to the subject matter hereof, and may not be modified except by written agreement signed by both parties. D. Notice. All notices required hereunder shall be in writing and shall be deemed to have been given if either de- livered personally or mailed by certified mail or registered mail 16/SD2 -14- to Operator or to City, as the case may be, at their respective addresses as follows or to such other address as either party may so notify the other of in writing: OPERATOR: CITY: Aspen Sports, Inc. City Manager 408 East Cooper City of Aspen Aspen, CO 81611 130 South Galena Street Aspen, CO 81611 E. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Operator and City and their respective successors and assigns. F. Description Headinqs. Descriptive headings contained herein are inserted for convenience and reference only and shall not in any way limit or amplify the terms and conditions contained herein. G. Attorneys' Fees. If legal action is necessary to enforce or clarify any of the provisions of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorneys' fees and expert witness fees. H. Severability. If any of the provisions of this Agreement shall contravene or be invalid under the laws of the State of Colorado, such contravention or invalidity shall not invalidate the entire Agreement, but it shall be construed as if not containing the particular provision or provisions held to be invalid, and the rights and obligations of the Operator and City shall be enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. OPERATOR: ASPEN SPORTS, INC., a Colorado corpo~?'o~ ~ /~fit le/~.~ CITY OF ASPEN, COLORADQ William L. Stirring, Mayor Kathryn ~ Koch, City Clerk 16/SD2 -15-