S T A F F R E P O R T

CITY COUNCIL AGENDA staff report re yamaha golf cars.doc

DATE: February 27, 2013 TO: The Honorable Mayor and City Council FROM: John Penrod, City Attorney SUBJECT: CONSIDERATION OF AUTHORIZING THE EXECUTION OF

CONTRACT DOCUMENTS TO ALLOW THE GOLF COURSE TO LEASE 70 YAMAHA YDRE GOLF CARS FOR A PERIOD OF 48 MONTHS.

RECOMMENDATION Motion to Approve authorizing the Mayor to execute an Agreement with Highland Golf and a Master Lease Agreement with Yamaha Motor Corporation to lease 70 Yamaha YDRE Golf Cars for a period of 48 months. GOALS, OBJECTIVES AND STRATEGIES AT ISSUE Springville General Plan Goal Objective 6 – To provide recreation that creates lasting memories, provides diverse opportunities, builds unity, and provides safe and fun experiences for all age abilities and interest. BACKGROUND: Until 2010, the Hobble Creek Golf Course owned its golf cart fleet. In 2010, it was determined that the golf course would provide a better service to its users and save money by leasing, instead of owning, its golf carts. At that time, the City started to lease its golf cart fleet through Intermountain Golf Cars Inc. The 2010 lease was a three year lease agreement wherein the City leased 75 Club Car golf carts for that amount of $2,600 per month. That three year lease will be ending June 15th of the year. As such, the City issued a Request for Proposals for another golf cart lease and received proposals from three different golf cart vendors with Highland Golf being the lowest responsible responder at $57.38 per cart per month for 48 months. The other two responders were RMT equipment at $62.28 and Intermountain Golf Cars, Inc. at $64.66 per cart per month for 48 months. As part of the Highland Golf proposal, the City will receive 70 Yamaha 2013 YDRE “The Drive” 48-Volt Electric Golf Cars in Glacier White, with Stone Suntop & Seats. The reason there is both an Agreement with Highland Golf and a Master Lease Agreement with Yamaha is because the City will lease the golf carts directly from Yamaha, but Highland Golf still needs to agree to meet the requirements of the Golf Course that are contained in the RFP. These requirements include, among other items, certain upkeep and maintenance requirements.

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CITY COUNCIL AGENDA staff report re yamaha golf cars.doc

Both the Master Lease with Yamaha and the Agreement with Highland Golf are attached hereto. ALTERNATIVES: Go with another bid based upon supported reasons or agree to change how the Golf Course does business with its carts, i.e. go back to owning, not leasing, the carts. FISCAL IMPACT: $4,030.60 per month for 48 months, plus any applicable personal property taxes. The reason that this amount for the proposed lease is so much more than the amount for the 2010 lease ($2,600) is because the 2010 lease was reduced in price based on the credit the City received for its golf cart fleet. Attachments: Yamaha Master Lease Highland Golf Agreement

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AGREEMENT

This Agreement (“Agreement”) dated effective as of this _____ day of __________________, 2013, is between the City of Springville, a Utah Municipal Corporation, (“City”), 110 South Main, Springville, Utah 84663 and the Highland Golf Carts (the “Contractor”), 1331 West 3300 South, Salt Lake City, UT 84119. AGREEMENT

NOW THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants of the parties set forth herein, the parties hereto hereby agree as follows: Responsibility of the Contractor: During the term of this Agreement, Contractor agrees to perform all of those responsibilities and obligations of the Contractor as required in the Springville City RFP No. 2013-05, “Golf Car Fleet Lease,” and the Contractor’s response to the City’s RFP No. 2013-05 (RFP No. 2013-05 and the Contractor’s response are collectively referred herein as the “RFP”). A copy of the RFP is attached hereto as Exhibit A. The Contractor acknowledges that the Master Lease between the City and Yamaha Motor Corporation, U.S.A (the “Master Lease”) benefits the Contractor and acts to fulfill the Contractor’s responsibilities under the RFP. A copy of the Master Lease is attached hereto as Exhibit B. Because the Master Lease is essential to the Contractor fulfilling its requirements under the RFP, the Contractor agrees that it shall be responsible to perform the duties and responsibilities of the City under the Master Lease that are covered in the RFP. The Contractor agrees to indemnify, defend (with counsel acceptable to the City) and hold the City, its elected officials, officers, employees and volunteers harmless from any and all liens, encumbrances, costs, demands, claims, judgments, injuries, employee claims and/or damage caused by or arising out of the Master Lease for which the Contractor has agreed to perform through the RFP. The terms and conditions of this provision shall remain effective after the expiration or termination of this Agreement, so long as the event for which the indemnification is needed occurred prior to such expiration or termination. The Contractor agrees that the golf cars provided under this Agreement shall be 2013 golf cars and shall be the color beige. The Contractor acknowledges and agrees that it will deliver the new golf car fleet by June 15, 2013. Contract Price and Payment: The City shall pay the monthly lease payment as required by the Master Lease.

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Term of the Contract: The term of this Agreement shall be the period of time set forth in the Master Lease. Default: A default hereunder shall occur if either party shall default in the performance or observation of any covenant or condition of this Agreement to be performed or observed. Remedies: In the event of any breach or default of this Agreement by either party hereto, as defined in the section entitled “Default,” then this Agreement may be declared terminated by the non-breaching party. This Agreement and the terms and conditions shall then expire upon receipt of the notice of termination by the breaching party. The rights and remedies afforded to the non-breaching party in the foregoing sentence shall not be exclusive, but shall be in addition to all other legal rights and remedies. The exercise of any right or remedy by the non-breaching party shall not be to the exclusion of any other right or remedy. Laws: Contractor certifies that Contractor has complied and will comply with all Federal, State and Local laws in fulfilling its responsibility under this Agreement. Time is of the Essence: Both parties acknowledge that time is of the essence. Indemnity: Contractor and its successor and assigns hereby agrees to indemnify, defend (with counsel acceptable to the City) and hold the City, its elected officials, officers, employees and volunteers harmless from any and all liens, encumbrances, costs, demands, claims, judgments, injuries, employee claims and/or damage caused or arising out of (a) the acts and omissions of Contractor and its agents, servants, employees, and/or contractors and (b) any work performed by the Contractor, its agents, servants, employees, consultants and/or contractors. The terms and conditions of this provision shall remain effective after the expiration or termination of this Agreement, so long as the event for which the indemnification is needed occurred prior to such expiration or termination. Miscellaneous:

Attorney’s Fees: If any party is required to retain legal counsel in order to enforce this Agreement, with or without the commencement of a formal legal action, such party shall be entitled to recover its attorney’s fees and costs from the breaching party or parties.

Binding Effect: This Agreement shall be binding on the parties and their respective heirs successors and assigns.

Governing Law: This Agreement shall be governed by the laws of the State of Utah.

Modifications: This Agreement shall not be amended or modified except by written document signed by the party to be charged with such amendment or modification.

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Notices: Any notice, demand, request, consent, approval or other communication (collectively, the “Notices”) required or permitted to be given by any provision of this agreement shall be in writing and sent by hand-delivery, by special courier (for example Federal Express), by United States Certified Mail (return receipt requested, postage prepaid), or by telefax, addressed to the party to be so notified. Notice pursuant to this Agreement shall be deemed given pursuant to the following rules: if hand delivered, at the time of delivery; if sent by special courier, on the third (3rd) day after deliver to the courier; if mailed, on the later of the date of receipt or the third day after deposit thereof in the United States Mails; and if sent by telefax, on the date that the telefax is acknowledged as received.

Assignment: Contractor may not assign this Agreement without the written consent of City.

No Waiver: No failure to exercise, delay in exercising or single or partial exercise of any right, power or remedy by any party hereto shall constitute a waiver thereof or shall preclude any other or further exercise of the same or any other right, power or remedy.

Section Headings: The headings and captions contained in this Agreement are for convenience only and shall not be considered in interpreting the provisions hereof.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement, to be effective for all purposes as of the date first written above. SPRINGVILLE CITY By:________________________________ Wilford W. Clyde, Mayor Attest: By:_______________________________ Venla Gubler, City Recorder HIGHLAND GOLF CARTS

By:_______________________________ Title:______________________________

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EXHIBIT “A”

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EXHIBIT “B”