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HomeMy WebLinkAbout10677rj 1 2 RESOLUTION NO. 10,677 • 3 607 4 A RESOLUTION AUTHORIZING THE CITY MANAGER 5 TO ENTER INTO A CONTRACT WITH THE FIRST TEE 6 FOR A FACILITIES AGREEMENT AND A LICENSING 7 AGREEMENT. E1 9 WHEREAS, the Department of Parks and Recreation has obtained Planning 10 Commission approval of the First Tee facility and is negotiating a contract for 11 construction of a golf learning facility; and 12 WHEREAS, the Facilities Agreement essentially establishes a relationship 13 between the City and The First Tee that shares a mission statement and values; and 14 WHEREAS, the agreement shall require that the game of golf is made 15 accessible and affordable and espouses values characteristic of the game of golf, 16 such as honesty, integrity, sportsmanship and self - discipline; and 17 WHEREAS, the Licensing Agreement allows privilege to utilize The First Tee 18 logo, name and service marks; and 19 WHEREAS, these agreements allowfor utilization of funds granted ($500,000) 20 to the construction of the Phase I Improvements. 21 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS 22 OF THE CITY OF LITTLE ROCK, ARKANSAS: 23 SECTION 1. The City Manager is authorized to enter into a contract with The 24 First Tee for Facilities Agreement and a Licensing Agreement. 25 SECTION 2. This resolution shall be in full force and effect from and after its 26 adoption. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Adopted: October 26, 1999 Attest: Robbie Hancock, City Clerk Approved as to Legal Form: Thomas M. Carpenter, tity Attorney M Approved: �n V� Jim blailey, May 60G EXHIBIT THE FIRST TEE FACILITIES AGREEMENT 609 THIS FACILITIES AGREEMENT (the "Agreement ") is made and entered into as of this day of 1999, by and between WORLD GOLF FOUNDATION, INC., a Florida not - for - profit corporation, by and through its division, THE FIRST TEE ( "The First Tee "), and the CITY OF LITTLE ROCK, ARKANSAS, an Arkansas municipal corporation, ( "The Little Rock First Tee "). WITNESSETH: WHEREAS, the purpose of The First Tee is to create facilities and programs to make golf more accessible to people of all diversities and social strata, particularly young people who otherwise may not have an opportunity to learn and play the game (the "Purpose "); WHEREAS, the mission of The First Tee will be accomplished by combining affordable access with golfs unique ability to instill and develop essential values, such as honesty, integrity, respect for tradition, etiquette, sportsmanship, self - esteem, self discipline, confidence and a solid work ethic in young people who are introduced to the game (the "Mission "); WHEREAS, in order to fulfill its Purpose and Mission, The First Tee seeks to enter into agreements with not - for - profit corporations, municipalities, communities or service organizations, to make golf available at selected sites throughout the United States; WHEREAS, The Little Rock First Tee shares the Purpose and Mission of The First Tee, and, concurrently herewith, The First Tee and The Little Rock First Tee are entering into the License Agreement pursuant to which The First Tee will license to The Little Rock First Tee the right to use The First Tee name, logo and marks; and WHEREAS, The First Tee and The Little Rock First Tee desire to enter into this Agreement to develop, construct, operate and maintain a The First Tee facility at the Jack Stephens Youth Golf Academy, Home of The First Tee, to be constructed at Rock Creek in Little Rock, Arkansas (the "Facility ") as part of The First Tee's national program ( "The First Tee Program "). NOW, THEREFORE, in consideration of the mutual promises, covenants and undertakings herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, The First Tee and The Little Rock First Tee hereby agree as follows: TERM: The term of this Agreement shall be coterminous with the Dedication, as defined herein (the "Term "). 2. DESCRIPTION OF FACILITY: PROJECT PARAMETERS: S i l 2.1. Restriction of use of Land: The Little Rock First Tee owns the real property on which the Facility will be constructed (the "Land "). The Little Rock First Tee shall restrict the use of the Land as The First Tee facility and program for a term of not less than fifteen (15) years. The restriction shall be in a form recommended or approved in advance by The First Tee and shall expire after the end of the fifteen (15) year term. The Little Rock First Tee has or will obtain all approvals necessary to permit the construction and operation of the Facility. 2.2. Construction of the Facility: The Little Rock First Tee shall use its best efforts to construct a nine (9) hole golf course, including a pitch and putt course, diving range, short game practice area, clubhouse, and teaching center substantially in accordance with plans reviewed and approved by The Little Rock First Tee and The First Tee. The foregoing development shall proceed as a single phase at a budgeted cost of approximately $1,000,000, with anticipation that certain materials and services may be donated. 2.3. Planning for Safety. Security and the Disabled: In accordance with all applicable laws and subject to review and prior approval by The First Tee, such approval not to be unreasonably withheld, The Little Rock First Tee shall create and implement effective security and safety plans and programs at the Facility, and shall devote attention to planning and programs for disabled participants utilizing the Facility. 2.4. Environmental and Conservation Planning: The Little Rock First Tee shall implement environmental and conservation planning, subject to review and prior approval by The First Tee, such approval not to be unreasonably withheld, and shall comply with all laws, rules, regulations and other legal requirements relating thereto, as well as the policies of The First Tee relating thereto, including, without limitation, any standards created from time to time as a result of The First Tee's affiliation with organizations such as The Golf Course Superintendents of America or other conservation group; provided, however, that The First Tee shall provide the Little Rock First Tee with the appropriate First Tee policies regarding environmental and conservation planning. 2.5. Business Plan: Budgets: The Little Rock First Tee has, in good faith, prepared a business plan for the Facility and program, including, without limitation, preliminary construction -2- 0 0 and operating budgets, a copy of which has been submitted to and approved by The First Tee and is attached hereto as Exhibit "A." Further the Little Rock First Tee will submit annual operating budgets for the Facility to The First Tee. The Little Rock First Tee agrees to act in good faith to adhere to the applicable budget. `� f'j.1 2 2.6 Funding Capacity: The Little Rock First Tee has committed $500,000.00 to the Facility, and is committed to design, construct, operate and maintain the Facility in accordance with the business plan and budget attached hereto as Exhibit "A." The Little Rock First Tee will, in good faith, use reasonable efforts to obtain commercial sponsors to defray operational shortfalls. 3. BENEFITS TO THE LITTLE ROCK FIRST TEE: COVENANTS OF THE FIRST TEE: 3.1. The First Tee Grant Application: Other Funding Assistance: The First Tee has approved The Little Rock First Tee's application for a grant of $100,000.00 (the "Grant "), and has identified supplemental funding of $150,000.00 (the "Supplemental Funds ") for the Facility, subject to The Little Rock First Tee's execution of and compliance with this Agreement and the License Agreement , and the use of the funds for the Facility as approved by The First Tee. In addition to the Grant and Supplemental Funds, The First Tee hereby commits to raise up to an additional $250,000.00 (the "Additional Funding ")for the Facility. The First Tee will, in good faith, use its best efforts to assist The Little Rock First Tee in obtaining commercial sponsors to defray operational shortfalls. 3.2. Membership in The First Tee National Association: Upon execution of this Agreement, The Little Rock First Tee shall be a member of a national association comprised of all chapters of The First Tee Program ( "The First Tee National Association "). The First Tee National Association will meet on a periodic basis to further develop and enhance The First Tee Program. 3.3. Execution of the License Agreement: Concurrently herewith, The First Tee and The Little Rock First Tee shall enter into the License Agreement concerning the use of The First Tee name, logo and marks. 3.4. Design and Development Oversight: Where requested by the Little Rock First Tee or appropriate, The First Tee will coordinate the participation of leading golf course architects and organizations for golf course design, planning, oversight and assistance, through alliances with -3- 0 0 associates such as PGA Tour Design Services, Inc., and The American Society of Golf Course Architects. The First Tee will also assist, coordinate, advise and consult with The Little Rock First Tee in planning, designing and developing the Facility, in developing and implementing youth golf 9 n programs, and in monitoring the quality and progress thereof. 13 3.5. Facility Marketing. Public Relations and Other Benefits: The First Tee will utilize best efforts to provide The Little Rock First Tee with marketing and public relations assistance and support. The First Tee will also use best efforts to make all benefits of The First Tee Program and its supporting golf associations and sponsors available to The Little Rock First Tee and to coordinate these available benefits with the needs of The Little Rock First Tee. All marketing, public relations and promotions by The Little Rock First Tee relating to The First Tee shall be subject to prior review and approval by The First Tee. 3.6. National Supply Contracts /Commercial Sponsorships: The First Tee intends to pursue and secure exclusive national supply contracts with construction suppliers, operational equipment suppliers, golf equipment manufacturers and others for the benefit of The First Tee Program. Although the contracting parties will be designated The First Tee's official suppliers nationwide, The Little Rock First Tee may enter into arrangements with local or other suppliers and sponsors. Notwithstanding the above, the parties shall comply with all applicable Arkansas and local purchasing and contracting requirements as such requirements pertain to this Agreement. The First Tee Agrees to comply with the Little Rock City Code concerning advertising in City parks. 3.7. National Core Curriculum: The First Tee will provide to The Little Rock First Tee a national core curriculum tailored to The First Tee's local and national objectives, designed to achieve the Purpose and Mission of The First Tee. 4. OPERATIONAL TERMS, CONDITIONS AND REQUIREMENTS: 4.1. Creation of State Advisory Board: The First Tee intends to create a Statewide Advisory Board (the "State Advisory Board "), which shall operate as a standing committee of the Arkansas State Golf Association ( "ASGA "). The State Advisory Board shall be comprised of at least nine (9) members, of which: (i) three (3) members shall be from the City of Little Rock, including at least one (1) representative from the City of Little Rock's Department of Parks and Recreation; (ii) three (3) members shall be from City of Fort Smith; and (iii) three (3) members shall be selected in • 0 at large. The State Advisory Board shall recognize and promote the Purpose, Mission, goals and objectives of The First Tee Program. Particularly germane to The First Tee is the ability to develop and manage the resources necessary to create and maintain a youth- focused golf facility. An important part of The First Tee's Mission is making golf available to those who would not ordinarily have access to the game. Therefore, it is also important that the State Advisory Board reflect the diversity that will be future of the game of golf. The parties hereto contemplate and recognize that the State Advisory Board shall provide general oversight in the development of this Facili and all other facilities in The First Tee Program within the State of Arkansas. � �- 4 The State Advisory Board shall utilize funds and resources provided by The First Tee to assist in the organization and development of additional The First Tee facilities within the State of Arkansas and shall provide statewide coordination of The First Tee activities, which may include tournaments, scholarships and mentoring programs. In addition, with respect to The Little Rock First Tee, The State Advisory Board's rights, obligations and responsibilities include: (i) review and approval of the initial business plan and budget; (ii) review of all subsequent budgets: (iii) monitoring of ongoing programming and the content of on -site teaching instruction; (iv) approval of substantial departures from the business plan or budget; (v) promotion and advocacy of The First Tee in the community and development of positive relationships with the community; (vi) acting as a consulting resource relative to expertise in golf instruction and youth services programs; and (vi) acting as a consulting resource relative to expertise in golf instruction and youth service programs; and (vii) oversight of The First Tee name and logo and quality control. The foregoing shall not modify, alter or amend the plenary and superior review and approval rights of The First Tee granted or reserved hereunder. 4.2. Organizational Status: The Little Rock First Tee shall operate consistent with and encompassing the Purpose and Mission of The First Tee. -5- 0 so 4.3. Use of The First Tee Funds: All donated funds for The Little Rock First Tee shall be segregated and earmarked in a separate account under the name of The Little Rock First Tee, The Little Rock First Tee shall maintain separate records for such account, which such records shall be made available to The First Tee upon reasonable request during normal business hours. All other funds from The First Tee, or for the Little Rock First Tee, shall be maintained as otherwise provided by the Little Rock First Tee. G 1 5 4.4. First Tee Program Curriculum: Access: The Little Rock First Tee shall adopt The First Tee Program curriculum or a comparable program approved by The First Tee. The Little Rock First Tee shall provide access to golf for young people consistent with Exhibit `B" attached hereto. In connection therewith, The Little Rock First Tee shall implement a teaching and certification program culminating with the issuance of The First Tee Card to qualified participants, which shall afford cardholders access to other municipal and area courses for a minimal fee. The certification process resulting in the issuance of The First Tee Card is attached hereto as Exhibit "C." The Little Rock First Tee shall use best efforts to obtain such reduced fee access for The First Tee graduates at all or as many municipal and area golf facilities as possible, and shall recognize providing access to golf for youth at reduced or no fees as a paramount priority. 4.5. Additional Programs: In addition to The First Tee Program curriculum, The First Tee and The Little Rock First Tee desire The Little Rock First Tee to plan, develop and implement golf programs and initiatives at the Facility: (i) for disadvantaged inner -city groups and youths, particularly minorities; (ii) with local not for profit groups, such as the YMCA, YWCA, Boys and Girl's Clubs; and (iii) with area middle schools, high schools and community colleges. 4.6. Access to the Facility: The Little Rock First Tee shall ensure safe modes of access to the Facility. 4.7. Occupancy of Interior Space at the Facility: The First Tee shall, at it sole cost and expense, have the right to occupy interior space in the Facility in a conspicuous, highly visible area acceptable to The Little Rock First Tee, to feature The First Tee Program, its curriculum and related promotional material. 4.8 General Duties of The Little Rock First Tee: The Little Rock First Tee shall diligently operate and maintain the Facility as part of The First Tee Program, in a safe and efficient S1 0 M manner in accordance with the applicable approved budget and the standards and curriculum of The First Tee Program. The First Tee shall have continuing rights to review and approve the Facility's planning, design, construction, fundraising, funding, marketing, signage, operation, maintenance and quality. Notwithstanding the foregoing, subject to the terms and conditions of this Agreement, the License Agreement, and any other agreements entered into with respect to the Faciljy1�e Little Rock First Tee shall have discretion in the operation, direction, management, maintenance and supervision of the Facility. The Little Rock First Tee's functions and duties with respect to the Facility and The First Tee Program shall include the following: (i) prompt compliance with any law, ordinance, rule, regulation, order or other legal requirement with respect to the Facility, or its renovation, construction, operation or maintenance; (ii) advising The First Tee promptly in writing of any substantial property damage to the Facility that the Little Rock First Tee has actual knowledge of, any substantial bodily injuries sustained by any person at the Facility that the Little Rock First Tee has actual knowledge of, any actual claim relating to the Facility or the Program that the Little Rock First Tee has actual knowledge of, receipt by or service upon The Little Rock First Tee of any summons, subpoena or other similar legal document, including notices, letters, communications and claims of any actual defaults by or actual liabilities of The Little Rock First Tee or The First Tee that the Little Rock First Tee has actual knowledge of ; (iii) cooperating fully with The First Tee in connection with any legal proceeding arising from or in connection with the operation of the Facility; (iv) paying any operating expenses, taxes, assessments and charges relating to the Facility; (v) timely applying for and obtaining or renewing any approvals, licenses, permits, consents, authorizations, certificates or similar documents or actions required in connection with the construction and operation of the Facility; (vi) enforcing The First Tee Program curriculum and such reasonable rules and regulations as may be enacted by The First Tee, with respect to the Facility or The First Tee Program; (vii) hiring, discharging, supervising, and carefully monitoring the work of the personnel employed by The Little Rock First Tee, and all agents, contractors, subcontractors or volunteers performing services in or about the Facility, provided that The Little Rock First Tee shall only engage qualified, competent and experienced personnel and volunteers. The First Tee may review The Little Rock First Tee's hiring policies for the Facility; (viii) compliance with all applicable governmental requirements, including, but not limited to, federal and state labor and tax -7- 0 N laws, OSHA, ADA, worker's compensation, social security, unemployment insurance, hours of labor, wages, working conditions and other employer - employee related matters; (ix) keeping, supervising and directing the keeping of, full and adequate books of account and such other records reflecting gross revenues and operating expenses of the Facility, and achievement of program goals and realization rates, tracking of program participants, development of off -site teachiHgjpi4igrams and relationships with area schools and golf courses and other data relevant to the long term assessment of the success of The First Tee Program; and (x) delivering to The First Tee within one hundred twenty (120) days after the end of each calendar year, annual financial statements (audited, upon request) including a balance sheet and statement of profit and loss showing the operational results of the Facility during the preceding calendar year. 4.9. Entry and Inspection Rights of The First Tee: The First Tee, its accountants, representatives, attorneys and agents shall have the right to request the necessary materials or information, or to enter the Facility at any reasonable time during normal business hours, without disruption, to: (i) examine, inspect and approve the Facility and its maintenance and operations; and (ii) examine, inspect, copy and approve the books and records of or relating to the Facility. 4.10 Sienaee: The First Tee and The Little Rock First Tee hereby agree that all signage for the Facility shall be in substantially the following form: Jack Stephens Youth Golf Academy Home of The First Tee Logo /mark of The First Tee Logo /mark of The City of Little Rock Department of Parks and Recreation 5. INSURANCE AND DECERTIFICATION: 5.1 Insurance: The Little Rock First Tee shall maintain, as a Facility expense, the following policies of insurance: (i) insurance against loss or damage by fire or other casualties, including, but not limited to, vandalism and malicious mischief, within the meaning of "extended coverage," covering the Facility in an amount sufficient to prevent The First Tee or The Little Rock First Tee from becoming a coinsurer under the terms of the applicable policy, but in any event not less than one hundred percent (100 %) of the full insurable value of the Facility; and (ii) workers' compensation insurance for the Facility's employees in accordance with applicable law. Each policy 1 0 n] of insurance shall be in a form and amount and from a carrier acceptable to The First Tee and shall name The First Tee and World Golf Foundation, Inc., as additional insureds. The Little Rock First Tee shall also contractually require all of its contractors, subcontractors, or any others performing any work at the Facility, to secure and maintain sufficient insurance of types and with the limits set forth above, as reasonably required by The First Tee and to name The First Tee World Golf Foundation, Inc. as additional insureds. The Little Rock First Tee shall provide The First Tee with copies of all insurance endorsements, certificates and policies,and all renewals thereof, evidencing the coverage required pursuant to this Agreement, and all paid receipts for such insurance from the insurers thereof. 5.2 Decertification: Upon a default by The Little Rock First Tee under this Agreement, including, without limitation, failure to obtain or maintain the necessary approvals under this Agreement, and after all opportunity to cure time periods have expired and the Agreement has been duly terminated by The First Tee, or the expiration or earlier termination of this Agreement: (i) The Little Rock First Tee shall be decertified as a member of The First Tee National Association and shall no longer operate as a Facility in The First Tee Program (ii) The License Agreement and all other rights and licenses granted to The Little Rock First Tee by The First Tee shall terminate; and (iii) except in the event of termination by The Little Rock First Tee due to a default by The First Tee, if this Agreement is terminated within the first five (5) years, a prorata portion of The First Tee funds invested and a prorata amount of the reasonable book value of any equipment provided by or through The First Tee shall be due and payable to The First Tee in equal monthly installments over a three (3) year period. The amount of funds to be repaid to The First Tee as set forth above shall be equal to the total amount of funds and equipment provided by The First Tee, divided by five (5) years multiplied by the number of years remaining in the first five (5) years of the term. For purposes of this calculation, any portion of a year shall count as a full year. 6. ADDITIONAL PROVISIONS: 6.1 This Agreement incorporates herein by this reference the following provisions of the License Agreement as if the same were set forth fully herein and applicable to the terms and conditions of this Agreement: (i) Paragraph 1.0, "Representations and Warranties," (ii) Subparagraph 4.2, "Events of Default;" (iii) Subparagraph 4.3, "Remedies," and (iv) Paragraph 6.0, "General 0 0 N Provisions." To the extent that any incorporated provision conflicts with a provision of this Agreement, this Agreement shall control. 6.2 This Agreement shall be governed by the laws of the State of Arkansas, and shall be binding upon and inure to the benefit of the parties hereto, and their respective successors, heirs, executors, administrators and assignees. 6 s a 6.3 The officials who have executed this Agreement hereby represent and warrant that they have full and complete authority to act on behalf of The First Tee and The Little Rock First Tee, respectively, and that their signatures below, the terms and provisions hereof, constitute valid and enforceable obligations of each. 6.4 This Agreement shall be executed in the original, and any number of copies. Any copy of this Agreement so executed shall be deemed an original, and shall be deemed authentic for any other use. 6.5 Severability: In the event any section, subsection, subdivision, paragraph, subparagraph, item, sentence, clause, phrase, or word of this Agreement is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall not affect the remaining provisions of the Agreement, as if such invalid or unconstitutional provision was not originally a part of the Agreement. 6.6 The First Tee acknowledges and agrees that the Little Rock First Tee is required to comply with an agreement dated August 2, 1999 between the City of Little Rock, Arkansas and Golfworld, Inc. 6.7 Nonappronriation: Notwithstanding the Agreement term, this Agreement shall terminate at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations, covenants, terms and agreements of The Little Rock First Tee hereunder. The Little Rock First Tee shall give The First Tee written notice ninety (90) days prior to such termination. 6.8 Force Majeure: Anything contained herein to the contrary notwithstanding, the parties shall be excused for the period of delay in the performance of any and all of their obligations under this Agreement, and shall not be considered in default when prevented from so performing by a cause or causes beyond the control of the First Tee or The Little Rock First Tee will including, but not limited to, all labor disputes, civil commotion, war, fire or other casualty, shortage of supplies and materials or act of God. E2 0 WORLD GOLF FOUNDATION, INC., CITY OF LITTLE ROCK, ARKANSAS By: Name: Tod Leiweke Title: Executive Director of The First Tee -11- By: Name: Cy Carney Title: City Manager ATTEST: Robbie Hancock City Clerk APPROVED AS TO LEGAL FORM: Thomas M. Carpenter City Attorney