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HomeMy WebLinkAboutEbit Course Co - Golf Facility Use AgrmtC 1, 01 CiftCd+likI--�w,- r"c�' 7"4►0 REPORT TO THE CITYCOUNCIL November 27, 2007 FROM BY AGENDA ITEM NO. I V COUNCIL MEETING 11/27/07 APPROVED BY PPPROVVEEDBY DEPARTMENT DIRECTOR CITY MANAGER RANDALL L. COOPER, Director P tqParks, Afterschool, Recreation and Community Services Department Da WILLIAM BROOMFIELD, Projects/Events Manager Parks, Recreation and Community Services Department 14 SUBJECT: APPROVAL OF GOLF FACILITY USE AGREEMENT BETWEEN FIRST TEE OF FRESNO, THE CITY OF FRESNO, and EBIT INC./COURSECO, INC. KEY RESULT AREA Customer Satisfaction RECOMMENDATIONS Staff recommends that the Council approve the Golf Facility Use Agreement between The First Tee of Fresno, The City of Fresno and EBIT Inc./Courseco, Inc. The purpose of the Agreement is to allow the operation of the First Tee program of Fresno to be held at the Riverside Municipal Golf Course. EXECUTIVE SUMMARY Parks, Afterschool, Recreation and Community Services (PARCS) has been negotiating with The First Tee of Fresno for several months regarding a golf facility use agreement. The agreement has been approved by City Attorney and Risk, and all parties have signed, a copy of which is attached. Based on the City's contractual obligations with EBIT/Courseco, they have been included as a party to the Golf Facility Use Agreement. Deputy Mayor Jeff L. Eben has also submitted a letter recommending approval of the proposed agreement, which will give the First Tee program of Fresno permission to operate at Riverside Municipal Gof Course. The Chapter is required to provide a "minimum of 250 hours of junior golf programming per calendar year at the golf facility (Riverside), and there are numerous other programming, funding and operational requirements the Chapter must adhere to in order to remain a Chapter in good standing. A copy of The First Tee of Fresno's Development Guide is attached for further programming references. However, one key element mentioned in the Development Guide is that the Chapter is required to have at least 400 Certifying (i.e., Registered) Participants by the third year of operation. The City as owner of Riverside agrees to provide to the Chapter access to and use of the Golf Facility for Chapter participants in accordance with the minimum access and program use requirements of the Chapter Agreement. These provisions adequately protect the City from supporting an organization that is not operating in a financially responsible manner, or serving a sufficient number of youths. Additionally, the City has several employees serving as Board and/or Committee members, which further ensures that The First Tee of Fresno will operate in a responsible manner. The Chapter is more than willing to provide annual financial reports, as is required by The First Tee. *41IJECT TO MAYOR'S VETO REPORT TO THE CITY COUNCIL First Tee November 27, 2007 Page 2 KEY OBJECTIVE BALANCE By allowing The First Tee of Fresno to run its programming at the Riverside Golf Course, the lives of many children within Fresno and its surrounding communities will be directly affected in a positive manner by character development and life -enhancing values all through the game of golf. This will also sustain our Customer Service Key Objective by bringing more visibility to the golf course while increasing community satisfaction through The First Tee of Fresno program. The Financial Management Key Objective is also achieved because of the partnership with The First Tee of Fresno. We will be able to extend our outreach to the youth, adults and volunteers within Fresno at no expense to the Department or General Fund. BACKGROUND The First Tee is an initiative of the World Golf Foundation, a 501(c)(3) nonprofit organization based in St. Augustine, FL at World Golf Village, home of the World Golf Hall of Fame. Its mission is to impact the lives of young people by providing learning facilities and educational programs that promote character development and life -enhancing values through the game of golf. Since its inception in 1997, The First Tee has introduced the game of golf and its values to more than 1.5 million participants and students in 47 states and five countries — Australia, Canada, Ireland, New Zealand, and Singapore. Former President George Bush serves as honorary chairman. The First Tee Life Skills Experience is the unique feature that separates The First Tee from many other junior golf programs and youth development initiatives. Through the life skills curriculum, participants learn valuable lessons such as: the importance of maintaining a positive attitude; how to make decisions by thinking about the possible consequences; how to define and set goals; and how to transfer the positive values of golf to everyday life. Research completed in 2004 by the University of Florida and University of Nevada -Las Vegas concluded that participation in The First Tee positively changes young people's attitudes and behaviors. Longitudinal research completed in 2005 by the University of Virginia (UVA) provides scientific data -based evidence of the effectiveness of The First Tee as an exemplary youth development program. The 2006 UVA results vividly illustrate participants' retention of life skills over time and their transfer to other life domains such as family, school, jobs, and career interests. FISCAL IMPACT The fiscal impact to the Department or General Fund will be minimal. PARCS will help The First Tee of Fresno secure a trailer which will be used as office space and pay all utility and maintenance costs of the trailer contingent upon The First Tee remaining in good standing with The First Tee National Organization. Attachments: Golf Facility Use Agreement First Tee of Fresno's Development Guide 2 tV CITY OF FRESNO City Clerk's Office (Original r 1 (a7 I a 7 Golf Facility Use Agreement The First Tee of Fresno October 2007 THIS GOLF FACILITY USE AGREEMENT (hereinafter "Agreement") is made as of October 30, 2007, by and between FRESNO YOUTH GOLF ASSOCIATION, INC., a California nonprofit Mutual Benefit Corporation (hereinafter "the Chapter"), and the CITY OF FRESNO (hereinafter "Owner"), owner of the RIVERSIDE MUNICIPAL GOLF COURSE (hereinafter "Golf Course"), and Ebit, Inc./Courseco, Inc. (hereinafter "Golf Facility Manager"), manager of Golf Course. RECITALS WHEREAS, the Owner is the owner of the Riverside Municipal Golf Course ("Golf Facility") described in Exhibit "A." WHEREAS, the Owner and the Golf Facility Manger entered into a lease on August 17, 1999 ("Lease"), for Golf Facility Manger to manage Golf Facility. Golf Facility Manger has all of the rights and responsibilities to take care and manage the golf course in all respects. To the extent that anything in this Agreement conflicts with the Lease, the Owner and the Golf Facility Manger intend this Agreement to be an amendment to the Lease. WHEREAS, the Chapter intends to become a licensee of The First Tee, a division of World Golf Foundation, Inc. ("The First Tee"), pursuant to which the Chapter is responsible for introducing the game of golf to young people in the City and County of Fresno, California, by combining affordable golf access with The First Tee Life Skills brand of curriculum that emphasizes golf's unique ability to instill and develop essential values, such as honesty, integrity, sportsmanship, self-discipline, respect and a solid work ethic, and to give those young people the confidence and skills to pursue broader goals in life. WHEREAS, the Chapter desires to establish The First Tee program at the Golf Facility, and the Golf Facility Manager is willing to provide the Chapter access to and use of the Golf Facility for The First Tee program in accordance with the terms and provisions of this Agreement. 0 NOW, THEREFORE, in consideration of the mutual covenants and promises contained hereinbelow, the Golf Facility Manager, Chapter and the Owner agree to the following: 1. Within ten (10) days after the date hereof, the Chapter shall apply for and diligently pursue the execution of the Chapter Golf Facility Agreement with The First Tee to evidence The First Tee's approval of the Golf Facility as a facility of the Chapter. (a) If the Chapter does not execute the Chapter Golf Facility Agreement with The First Tee within six (6) months after the date hereof, this Golf Facility Agreement shall terminate and be null and void, and the parties hereto shall have no further rights or obligations hereunder, and (b) If the Chapter does execute the Chapter Golf Facility Agreement with The First Tee within six (6) months after the date hereof, then this Golf Facility Agreement shall become fully effective and the following terms and provisions of this Golf Facility Agreement shall control the relationship between the Chapter and the Golf Facility Manager. 2. Upon the Chapter signing the Chapter Golf Facility Agreement, the Golf Facility Manager agrees to provide to the Chapter access to and use of the Golf Facility for Chapter participants in accordance with the minimum access and program use requirements of the Chapter Golf Facility Agreement. The Chapter's use of the Golf Facility shall include, but not be limited to: (a) Golf Facility Manager will provide up to sixteen (16) rounds of golf at no cost for each qualified Chapter participant wishing to obtain certification under The First Tee's Life Skills curriculum; (b) Green fees for non -certification rounds played by Chapter participants at a discounted price as agreed by Golf Facility Manager and the Chapter; (c) Range balls at a discounted price as agreed by Golf Facility Manager and the Chapter. Green fees and range ball fees will be paid by the participants before play or otherwise subsidized by the Chapter or a third party. Such green fees and range ball fees shall be the property of the Golf Facility Manager and E not the Chapter. The parties expect that the foregoing minimum criteria will likely be exceeded as the parties work together to impact the lives of young people through the game of golf and its values. 3. In cooperation with the Golf Facility Manager, Chapter will provide and administer golf instruction and/or classroom instruction incorporating The First Tee Life Skills curriculum for a minimum of two hundred fifty (250) hours per calendar year at the Golf Facility. (a) Chapter and Golf Facility Manager will specify and agree upon any and all golf instructors employed by the Chapter. (b) The Chapter may also provide and administer The First Tee Life Skills curriculum at other Fresno City and County locations with prior approval of the appropriate governmental entity to reach out to young people living near other golf courses that may become Chapter facilities and affiliates. 4. The Chapter with Golf Facility Manager approval will specify and agree upon the hours of operation in which the above-described access and use criteria are to be satisfied, and cooperate on all other program and operating matters under this Golf Facility Golf Facility Agreement. (a) In determining reasonable access and use, the parties will adhere to The First Tee's access guidelines of fully integrating Chapter participants' use into the rhythm of play of the other patrons at the Golf Facility, which means balancing the need with Golf Facility Manager to exclude "peak times" with reasonably convenient times for young people. 5. The Chapter shall provide all operational funds necessary for all Chapter activities, except as stated hereinbelow. (a) The Golf Facility Manager agrees to allow a modular trailer for the Chapter's use as office and classroom space at the Golf Facility during the term of this Golf Facility Agreement free of charge to Chapter and at the expense of Owner, including all utilities other than long distance telephone charges contingent upon Chapter's remaining in good standing with The First Tee. (b) In addition, the Golf Facility Manager agrees, with the consent of Owner, to provide the Golf Facility to the Chapter free of charge and at the expense 3 of Owner contingent upon the Chapter's remaining in good standing with The First Tee. (c) Owner shall pay for all utilities for the Golf Facility, all maintenance cost of the Golf Facility and all management cost of the Golf Facility associated with Chapter contingent upon the Chapter's remaining in good standing with The First Tee. (d) Chapter shall submit annual financial reports and quarterly programming reports, consisting of the number of participants, the demographics of the participants and the hours of programming, to the Owner and Golf Facility Manager. (e) Chapter will have a level of participants in golf program suitable to the standards of First Tee (at least 400 participants by the third full year of operations.). (f) The parties will also consider working together on future upgrades to make the Golf Facility more suitable for youth and family participation 6. The term of this Agreement shall commence upon the date of execution of this Agreement, and shall terminate on December 31, 2022. Any parry may at any time terminate this Agreement (i) without cause, by giving sixty (60) days prior written notice to all parties, (ii) with cause, upon thirty (30) days written notice to all parties of the defaultinonperformance of the other party(ies) and the nonperforming/defaulting party's(ies') failure to reasonably cure. Termination shall be effective as of the date specified in said notice of termination. 7. To the furthest extent allowed by law, Chapter shall indemnify, hold harmless and defend Owner, Golf Facility Manager and each of their officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by Owner, Golf Facility Manager, Chapter or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen out of performance of this Agreement. Chapter's obligations under the preceding sentence shall apply 4 regardless of whether the Owner, Golf Facility Manager or any of their officers, officials, employees, agents or volunteers are actively or passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence or willful misconduct of the Owner, Golf Facility Manager or any of their officers, officials, employees, agents or volunteers. This section shall survive termination or expiration of this Agreement. 8. Insurance. Throughout the life of this Agreement, Chapter shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than "A - VII" in Best's Insurance Rating Guide, or (ii) authorized by Owner's Risk Manager. The following policies of insurance are required: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage form CG 0001 and shall include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 per occurrence. (ii) WORKERS' COMPENSATION insurance as required under the California Labor Code. (iii) EMPLOYERS' LIABILITY insurance (if CONSULTANT has employee(s) or at such time as he/she employs such person(s) during the life of this Agreement) with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Chapter shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Chapter shall also be responsible for payment of any self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted 30 calendar day written notice in favor of Owner of policy cancellation of coverage, except for the Workers' Compensation policy which shall provide a 10 E calendar day written notice of such cancellation of coverage. In the event any policies are due to expire during the term of this Agreement, Chapter shall provide a new certificate evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation in coverage, Chapter shall file with Owner a new certificate and all applicable endorsements for such policy(ies). The General Liability insurance policy shall be written on an occurrence form and shall name Owner, Golf Facility Manager and their officers, officials, agents, employees and volunteers as an additional insured. Such policy of insurance shall be endorsed so Chapter's insurance shall be primary and no contribution shall be required of Owner and/or Golf Facility Manager. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to Owner, Golf Facility Manager and their officers, officials, agents, employees and volunteers. Chapter shall furnished Owner with the certificate(s) and applicable endorsements for ALL required insurance within thirty (30) days of being granted a license from The First Tee. Chapter shall furnish Owner with copies of the actual policies upon the request of Owner's Risk Manager and this requirement shall survive termination or expiration of this Agreement. Any failure to maintain the required insurance shall be sufficient cause for Owner to terminate this Agreement. 9. Nondiscrimination. To the extent required by controlling federal, state and local law, Chapter in exercising its rights under this Agreement shall not employ discriminatory practices in the provision of services, employment of personnel, advertising or selecting Chapter participants or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. 10. Independent Contractor. In the furnishing of the services provided for herein, Chapter is acting solely as an independent contractor. Neither Chapter, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of Owner for any purpose. Owner shall have no right to control or supervise or direct the manner or method by which Chapter shall perform its work and functions. However, Owner shall retain the right to administer this Agreement so as to verify that Chapter is performing its obligations in accordance with the terms and conditions thereof. This Agreement does not evidence a partnership or joint venture between Chapter and Owner. Chapter shall have no authority to bind Owner absent Owner's express written consent. Except to the extent otherwise provided in this Agreement, Chapter shall bear its own costs and expenses in pursuit thereof. 11. Attorney's Fees. If a parry is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its/their reasonable attorney's fees and legal expenses. 12. Precedence of Documents. In the event of any conflict between the body of this Golf Facility Use Golf Facility Agreement and any exhibit/attachment hereto, the terms and conditions of the body of this Golf Facility Use Golf Facility Agreement shall control and take precedence over terms and conditions expressed within the exhibit/attachment. Furthermore, any terms or conditions contained within any exhibit/attachment hereto which purport to modify the allocation of responsibility or liability between the parties, provided for within the body of this Golf Facility Use Golf Facility Agreement, shall be null and void. 13. Notices. Any notice required or intended to be given to a party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally or deposited into the United States mail, return receipt requested, with postage prepaid, addressed to the party to which notice is to be given at the party's address set forth in this Agreement or at such other address as the parties may from time to time designate by written notice. Notices shall be sent to the following addresses: 7 Owner: City of Fresno Randall Cooper Parks, Recreation and Community Services 2326 Fresno Street, Suite 101 Fresno, CA 93721 93721 Chapter: Mike Firpo, Executive Director Fresno Youth Golf Association, Inc. dba The First Tee of Fresno 7672 N. Josephine Fresno, California 93722 Golf Facility Manager: Thomas B. Isaak, President Ebit Inc./CourseCo., Inc. 7672 N. Josephine Fresno, California 93722 14. Binding. Once this Agreement is signed by all the parties, it shall be binding upon, and shall inure to the benefit of, the parties, and each party's respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. 15. Assignment. There shall be no assignment by any party of its rights or obligations under this Agreement without the prior written approval of the other party. Any attempted assignment by a party, its successors or assigns, shall be null and void unless approved in writing by the other party. 16. Waiver. The waiver by any party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Golf Facility Use Agreement. No provisions of this Agreement may be waived unless in writing and approved by and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 17. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 8 Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno, California. 18. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Golf Facility Use Agreement. 19. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in this Agreement shall not affect the other provisions. 20. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor or against any parry, but rather by construing the terms in accordance with their generally accepted meaning. 21. Compliance With Governing Law. Each party shall comply with all federal, state and local laws, rules and regulations in its pursuit hereof. No party in its performance of this Agreement shall employ discriminatory practices on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. 22. Entire Golf Facility Use Aareement. It is mutually understood and agreed that the foregoing constitutes the entire Agreement between the parties. Any modifications or amendments to this Agreement must be in writing signed by an authorized agent of each party. 23. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. W IN WITNESS WHEREOF, the parties hereby execute and deliver this Golf Facility Agreement as of the day and year first above written. Owner: Chapter: THE CITY OF FRESNO, FRESNO YOUTH GOLF PARKS, RECREATION AND ASSOCIATION, INC. dba COMMUNITY SERVICES THE FIRST TEE OFF S� RIVERSIDE MUNICIPAL GOLF COURSE By; -, 1� C �C : — By: Name: RANDA COOPER, e: DUKE SHAW Title: Director Title: Preside t APPROVED AS TO FORM: Golf Facility Management: EBIT,�(SECO, INC. JAMES C. SANCHEZ City Attorney M - ATTEST: r By: t? ' 9�t+r- Rebecca E. Klisch �/- City Clerk, City of Fresno in Name: THOMAS B. ISAAK, Title: President Exhibit A God Facility 18 -hole regulation god course, driving range, complete practice facility, clubhouse, and indoor classroom space Hole Reg. Champion Riverside Municipal Golf Course 4 No. Tees Tees PAR 7672 N. Josephine G' 1 372 380 4 Fresno, California 93722 2 153 174 3 3 371 379 4 4 411 423 4 IS 5 147 158 3 6 535 546 5 a V 7 355 363 4 8 168 178 3 9 547 554 5 10 414 424 4 7 11 134 143 3 6 12 354 364 4 O 0 13 408 437 4 14 532 542 5 15 185 206 3 p 6 16 507 522 5 17 375 383 4 18 457 469 5 �� 6425 6645 72 i � I z DRIVING RANGE �a _ — — NORTH JOSEPHINE AVE November 28, 2007 Council Adoption: 11/27/07 RECEIVED Mayor Approval: TO: MAYOR ALAN AUTRY Mayor veto: FROM: REBECCA E. KLISCH, 4POl DEC 10 PM 2: 22 Override Request: City Clerk CITY CLERK. FRESNO CA SUBJECT: TRANSMITTAL OF COUNCIL ACTION FOR APPROVAL OR VETO At the Council meeting of 11/27/07, Council took legislative action entitled Appv golf facility use agrmnt w/First Tee of Fresno, EBIT Inc./Courseco, Inc, & City of Fresno, Item No. 1V, by the following vote: Ayes Calhoun, Dages, Duncan, Sterling, Westerlund, Xiong, Perea Noes None Absent None Abstain None Please indicate either your formal approval or veto by completing the following sections and executing and dating your action. Please file the completed memo with the Clerk's office on or before December 10, 2007. In computing the ten day period required by Charter, the first day has been excluded and the tenth day has been included unless the 1& day is a Saturday. Sunday, or holiday, in which case it has also been excluded. Failure to file this memo with the Clerk's office within the required time limit shall constitute approval of the ordinance, resolution or action, and it shall take effect without the Mayor's signed approval. Thank you. APPROVED: VETOED for the following reasons: additional sheets if necessary.) (Written objections are required by Charter; attach Ayes Noes Absent Abstain Date: 2 I Date: