HomeMy Public PortalAbout2022.12.15 Colorado Golf & Turf Golf Car Lease Agreement COLORADO
GOLF&TURF—.__--
I1757 S.WADSWORTH BLYD. UTTLETON.CO 60125
110 COLOGOLIANOTUNI COI
303 761 3332
GOLF CAR LEASE AGREEMENT
LEASE NO.2023-02
This lease made this 14th day of October 2022 by and between COLORADO GOLF&TURF,
INC., a Colorado corporation,hereinafter referred to as the"OWNER and LESSOR"and City of
McCall, Idaho. "LESSEE", whose address is 216 E. Park Street,McCall, ID 83638.
WITNESSETH
I. For and in consideration of the mutual promises and agreements,the OWNER hereby
leases to LESSEE and the LESSEE hereby leases from OWNER the GOLF CARS set
forth in paragraph 3 hereof,hereinafter referred to as the EQUIPMENT,upon the terms
and conditions herein set forth.
2. The TERM of this lease shall commence on March 1, 2023 and shall continue until May
1, 2028.
3. The EQUIPMENT is described as follows:
QUANTITY DESCRIPTION
50 2020 Club Car Tempo electric golf cars
40 2017 Club Car Precedent electric golf cars
10 2017 Club Car Precedent gasoline golf cars
LOCATION OF EQUIPMENT:
McCall Golf Club
925 Fairway Drive
McCall, ID 83638
4. Payments—60 consecutive monthly payments of$6,948.64 beginning May 1,2023.
5. LESSEE has selected the EQUIPMENT and represents to LESSOR that each item
thereof is of a design, size, fitness and capacity satisfactory for LESSEE'S purposes, and
LESSEE agrees that such EQUIPMENT is suitable and fit for the purpose intended.
LESSOR'S SOLE WARRANTY TO LESSEE IS THAT THE EQUIPMENT WILL BE
IN NORMAL OPERATING ORDER WHEN RECEIVED BY LESSEE.
IN THE EVENT OF LESSOR'S BREACH OF ANY WARRANTY, LESSEE'S SOLE
AND EXCLUSIVE REMEDY WILL BE THAT LESSOR WILL MAKE ANY
EQUIPMENT ADJUSTMENTS, REPAIRS OR PART REPLACEMENTS TO ANY
EQUIPMENT WHEN IT DETERMINES THAT THE EQUIPMENT DOES NOT
CONFORM TO THE ABOVE MENTIONED WARRANTY. IN NO EVENT WILL
LESSOR HAVE ANY OBLIGATION OR LIABILITY FOR DAMAGES, INCLUDING
COLORADO
GOLF&TURF
11757 5.NADSJ01T1 BLVD LITTLETON,CO 30125
.COL000LFANDTUDFCOI
303-761-3332
BUT NOT LIMITED TO,CONSEQUIENTIAL DAMAGES, ARISING FROM OR IN
CONNECTION WITH THE USE AND PERFORMANCE OF THE EQUIPMENT.NO
OTHER WARRANTIES,EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABLILITY AND FITNESS FOR A PARTICULAR
PURPOSE,WILL APPLY IN ANY MANNER WHATSOEVER.
LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR
EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY
ANY EQUIPMENT LEASED HEREUNDER OR THE USE,OPERATION OR
MAINTENEANCE THEREOF,OR THE FAILURE OF OPERATION THEREOF, OR
THE ADJUSTMENTS, REPAIRS, OR PART REPLACEMENTS, OR BY ANY
DELAY OR FAILURE TO PROVIDE ANY THEREOF OR BY ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEROF, OR FOR ANY LOSS
OF BUSINESS OR DAMAGE WHATSOEVER OR HOWEVER CAUSED.NO
ALLEGED DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE
LESSEE OF THE
OBLIGATION TO PAY LEASE OR OF ANY OTHER OBLIGATION OF LESSEE
LESSOR UNDER THIS LEASE.
6. Title to the EQUIPMENT shall at all times be and remain the sole and exclusive property
of the LESSOR.
7. The EQUIPMENT shall not be removed from the address of installation as provided in
paragraph 3 hereof without LESSOR'S prior written consent.
8. LESSEE agrees to safely store the EQUIPMENT under roof when not in use and to
properly secure the same at night and such other times when the facility on which the
EQUIPMENT is used is closed to play, and LESSEE agrees to be solely responsible for
such storage and safekeeping. If the EQUIPMENT is electrical, LESSEE agrees that such
storage shall include sufficient and adequate electrical charging outlets and watering in
facilities for the batteries, which are part of the EQUIPMENT. LESSEE further agrees to
be solely responsible for the cost of all electricity, fuel and routine maintenance for or to
the EQUIPMENT.
The EQUIPMENT shall be used and operated only as a golf car on the premises at the
address specified in paragraph 3 hereof in a careful manner and in compliance with all
applicable laws. The EQUIPMENT shall not be used or operated in a manner subjecting
it to depreciation above the normal depreciation associated with the use specified above.
LESSEE shall be responsible for damage to the EQUIPMENT from any accident,
vandalism or user abuse. LESSEE shall also agree that all persons operating said property
would be over the age of 16 with a current driver's license.
9. LESSEE shall indemnify and save LESSOR harmless from any and all actions,
proceedings,damages, liabilities,judgments, orders, decrees, awards, costs, expenses,
COLORADO
GOLF&TURF
11757 S.WADSMORTB BLVD LITTLETON.CO 30125
WWW COLOGOLFANDTURF CON
303 761-3332
attorney's fees, and claims on account of damage to property or injuries to person
(including death),which may be sustained by LESSEE, its agents, servants, employees,
licensees, invites, operators,users, and lessors arising out of or in connection with the use
of the EQUIPMENT, except the LESSEE shall have no liability to LESSOR for damages
or costs incident thereto caused by the sole negligence of LESSOR.
10. LESSEE shall not have the right to assign this lease without the written consent of
LESSOR. LESSOR shall have the right to assign this lease.
11. LESSEE agrees to pay any and all personal property taxes, sales,use and other taxes
payable in any state, county,or city where LESSOR'S EQUIPMENT is located,used and
operated by LESSEE.
12. LESSEE agrees, at its sole cost and expense,to employ a mechanic to provide for routine
maintenance of the EQUIPMENT including,but not limited to, keeping the
EQUIPMENT clean and orderly, changing flat tires, charging and watering
the batteries, fuel, and other routine maintenance procedures recommended by LESSOR.
13. LESSOR retains the right to withdraw the EQUIPMENT covered by this lease agreement
for non-payment of the rent provided for in paragraph 4 hereof. LESSEE acknowledges
that LESSOR may from time to time withdraw certain items of the EQUIPMENT for
maintenance under this agreement.
14. At the termination of this lease, LESSEE shall return the EQUIPMENT to LESSOR at
the same place where it received delivery in the same condition as when received by
LESSEE with ordinary and reasonable wear and tear excepted.
15. This lease and the interpretation thereof shall be construed in accordance with the laws of
the State of Colorado.
16. INSURANCE. LESSEE shall at its own expense keep the EQUIPMENT insured against
loss,theft,damage, fire, destruction or vandalism in the amounts up to $5,000.00 per
unit,per incident with responsible companies in a form satisfactory to LESSOR. All such
policies shall name LESSOR and any assignee of LESSOR as an additional insured and
provide that any loss shall be payable to LESSOR or its assignee. The proceeds of such
insurance shall be applied, at the option or LESSOR, (1)toward the replacement,
restoration or repair of any the EQUIPMENT which may be lost, stolen, destroyed or
damaged, or(2)toward the obligations of LESSEE for rent hereunder. In the event the
LESSOR elects to apply insurance proceeds to the repair or to the replacement of
damaged EQUIPMENT, this lease shall continue in full force and effect. In the event the
LESSOR elects to apply insurance proceeds to the payment of LESSEE'S obligations for
rent hereunder, the LESSEE'S obligation for the rent hereunder
shall be reduced by the amount of such insurance proceeds,but the LESSEE shall be
liable for any additional rents due. Such reduction of rents shall be allocated solely to the
item or items lost, stole,damaged or destroyed.
COLORADO
GOLF&TURF
1I;.i7 S.WADSWORTR BLID MILLION.CO 30125
'WV COLOGOLFANDTURF C01
303-761-3332
17. WARRANTIES. LESSOR will cause the manufacturer of the EQUIPMENT,to authorize
LESEE to enforce in its own name all warranties, agreements or representations, if any,
which may be made by the manufacturer to LESSEE or LESSOR. LESSOR MAKES NO
EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION THE CONDITION OF EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. NO
DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF
THE OBLIGATION TO PAY RENT OR OF ANY OTHER OBLIGATION UNDER
THIS LEASE.
IN WITNESS WHEREOF, the parties have duly executed this lease as of the day and
year first above written.
LESSOR:
COLORADO GOLF&TURF, INC.
Thomas F. Bauerle
President
LESSEE:
City of McCall, Idaho-McCall Golf Club
Name: /2/2"e? ,-(,-:_..xle
Title: Robert S. Giles , Mayor Date: December 15, 2022
ATTEST:
Name:
Title: BessieJo Wagner, City Clerk
Non-Appropriation Addendum to Golf Cart Lease
Lessee/Renter/Customer: City of Title of lease, rental or other agreement:
McCall, Idaho
Dated: December 15, 2022
Lessor: Colorado Golf & Turf, Inc. Lease, rental or contract #: 2023-02
This Non-Appropriation Addendum (this "Addendum") is made by and between
the above-referenced lessee, renter or other customer ("City") and the above-
referenced lessor ("Lessor").
Introduction: City and Lessor are simultaneously herewith entering into the
above-referenced lease, rental, or other agreement (the "Lease"); and City and Lessor
wish to modify and/or supplement the terms of the Lease, as more particularly set forth
herein below. This Addendum shall be effective as of the same date as the Lease (the
"Effective Date").
1. Incorporation and Effect. This Addendum is hereby made a part of, and
incorporated into, the Lease as though fully set forth therein. As modified or
supplemented by the terms set forth herein, the provisions of the Lease shall remain in
full force and effect, provided that, in the event of a conflict between any provision of
this Addendum and any provision of the Lease, the provision of this Addendum shall
control. In entering into this Addendum, it is the intent of City and Lessor to conform the
terms and conditions of the Lease to the requirements of all applicable federal, state
and local laws, rules and regulations relating to governmental entities and public
finance. If any term or condition of this Addendum is unenforceable or unlawful, then
Non-Appropriation Addendum to Golf Cart Lease — Page 1
such provision shall be deemed null and void without invalidating the remaining
provisions of the Lease.
2. Definitions. Capitalized terms herein that are not otherwise specifically
defined herein shall have the same.meanings as set forth in the Lease. As used in this
Addendum, the following terms shall have the following-described meanings:
"Goods" shall have the same meaning as the term "Equipment," "Leased
Equipment," "Goods" or "Property" (or a similar term) as defined and used
in the Lease.
3. Non-Appropriation of Funds. City hereby represents, warrants and
covenants to Lessor that: (a) City intends, subject only to the provisions of this Section
3, to remit to Lessor all sums due and to become due under the Lease for the full multi-
year term thereof; (b) City's governing body has appropriated sufficient funds to pay all
amounts due to Lessor during City's current fiscal period; (c) City reasonably believes
that legally available funds in an amount sufficient to make all such payments for the
full multi-year term can be obtained; and (d) City intends to do all things lawfully within
its power to obtain and maintain funds from which all such payments to become due
during the full multi-year term of the Lease, including making provision for such
payments to the extent necessary in each budget or appropriation request submitted
and adopted in accordance with applicable law. Notwithstanding the foregoing: the
decision whether or not to budget and appropriate funds is within the discretion of City's
governing body. In the event City's governing body fails to appropriate sufficient funds
to make all payments and pay other amounts due and to become due during City's
future fiscal periods, City may terminate the Lease as of the last day of the fiscal period
for which appropriations were received (an "Event of Non-appropriation"). City agrees
Non-Appropriation Addendum to Golf Cart Lease — Page 2
to deliver notice of an Event of Non-appropriation to Lessor at least 30 days prior to the
end of City's then-current fiscal period, or if an Event of Non-appropriation has not
occurred by that date, promptly upon the occurrence of any such Event of Non-
appropriation and to return the Goods pursuant to the return requirements stated in the
Lease on or before the effective date of termination. City and Lessor understand and
intend that City's obligation to make payments and pay other amounts due under the
Lease shall constitute a current expense and shall not in any way be construed to be a
debt, obligation, or liability in contravention of any applicable constitutional or statutory
limitations or requirements concerning City's creation of indebtedness, nor shall
anything contained herein constitute a pledge of City's general tax revenues, funds or
monies
4. Additional Representations, Warranties and Covenants of City. In
addition to the other representations, warranties and covenants made by City as set
forth in the Lease, City hereby represents, warrants and covenants to Lessor that: (a)
City has the power and authority under applicable law to enter into the Lease and this
Addendum and the transactions contemplated herein and therein and to perform all of
its obligations hereunder and thereunder, (b) City has duly authorized the execution
and delivery of the Lease and this Addendum by appropriate official action of its
governing body and has obtained such other authorizations, consents and/or approvals
as are necessary to consummate the Lease and this Addendum, (c) all legal and other
requirements have been met; and procedures have occurred, to render the Lease and
this Addendum enforceable against City in accordance with their terms, and City has
complied with such public bidding requirements as may be applicable to the Lease and
Non-Appropriation Addendum to Golf Cart Lease — Page 3
this Addendum and the transactions contemplated herein and therein, (d) upon
Lessor's request, City will provide Lessor with a copy of City's current financial
statements within 150 days after the end of each fiscal period, and (e) during the term
of the Lease, unless and until the Lease is terminated in accordance with Section 3
above, City shall provide to Lessor, no later than 10 days prior to the end of each fiscal
period, with current budgets or other proof of appropriation for the ensuing fiscal period,
and such other financial information relating to City's ability to continue the Lease, as
Lessor may request.
5. Indemnification. To the extent City is or may be obligated to indemnify,
defend or hold Lessor harmless under the terms of the Lease, any such indemnification
obligation shall arise only to the extent permitted by applicable law and shall be limited
solely to sums lawfully appropriated for such purpose in accordance with Section 3
above.
6. Remedies. To the extent Lessor's remedies for a City default under the
Lease include any right to accelerate amounts to become due under the Lease, such
acceleration shall be limited to amounts to become due during City's then current fiscal
period. In the event that City is obligated to return the Goods to Lessor, the same shall
be done at City expense so long as the destination is not more than 100 miles distant
from the City of McCall, Idaho; otherwise, Lessor shall pay the expense of
transportation to the destination designated by Lessor. After an Event of Non-
appropriation, so long as the lease payment for the then current fiscal year has been
paid, upon delivery of the Goods in the manner prescribed and so long as the Goods
shall be in the same condition as when received by City (ordinary wear and tear
Non-Appropriation Addendum to Golf Cart Lease — Page 4
excepted) and is in good operating order and maintenance as required in the Lease,
City's obligation to Lessor shall be deemed satisfied.
7. Tax warranties. Notwithstanding anything in the Lease to the contrary,
City makes no warranties regarding whether any portion of the lease payments are
interest or that the interest is exempt from taxation because of City's governmental
status. City will and does warrant that it is a municipal corporation organized under the
laws of the state of Idaho, and will complete any IRS or other tax agency forms that
Lessor directs so long as the information sought and factual representations to be
made on the forms can be made accurately within the format of the forms. City
reserves the right to include any explanation of data that City deems necessary to avoid
misrepresenting any facts on said forms. A determination by any taxing authority that
the lease payments, or any part of the lease payments, are includable in Lessor's gross
income shall not constitute a default under the Lease and will not result in any increase
in amounts payable under the lease.
8. Accessions and attachments. Notwithstanding anything in the Lease to
the contrary, any accessions or attachments made to the Goods by the City are not part
of the Goods, and are not part of the Lease unless the accessions or attachments are
provided by Lessor or Lessor's affiliate and are part of the description of the Goods
contained in the lease, or, are bona fide replacements of original equipment integral to
the Goods at the time of delivery to the City. At termination of the Lease, before the
Goods are returned to Lessor, City will remove any accessions or attachments it has
affixed to the Goods and will repair any damage to the Goods occasioned by the
removal of the same.
Non-Appropriation Addendum to Golf Cart Lease — Page 5
9. Preservation of right of offset. Notwithstanding anything in the Lease
to the contrary, City retains the right to offset against amounts due under the Lease any
defense, claim, setoff, or counterclaim or other right, existing or future, which City may
have against the Lessor, or the entity that supplied the Goods.
10. Insurance. Notwithstanding anything in the Lease to the contrary,
Lessor shall not be City's attorney in fact in any way or for any reason including but not
limited to insurance. City shall not be obligated to assign any insurance policies, titles,
rights or benefits to Lessor. The City shall name the Lessor as a loss payee on the
insurance coverage for the leased personal property. City shall have no obligation to
add the Lessor as an additional named insured because the City's insurer prohibits
such addition.
11. Opinion letter by Counsel for City. The opinion letter, if any, required
by Lessor from counsel for the City shall only require that counsel opine on: 1) whether
the City is duly organized and legally existing as a political subdivision under the
Constitution and laws of the state of Idaho; 2) whether the Lease has been duly
authorized, executed and delivered by the City and, subject to any applicable
bankruptcy, insolvency, moratorium, or other limitations found in Idaho law, is
enforceable against City in accordance with its terms; 3) whether there is any litigation
pending or, within counsel's best knowledge, threatened which seeks to restrain,
enjoin, or in any other way challenges the authority of City to enter into the Lease or
make an appropriation for payment of an annual lease payment; and 4) whether the
Lease has been authorized, approved, and executed in accordance with all applicable
open meeting, public records, and public bidding laws. No further opinions shall be
Non-Appropriation Addendum to Golf Cart Lease — Page 6
required unless Lessor is willing to fully and adequately compensate counsel for the
additional requested opinions and the liability thereby assumed.
12. Governing Law. Notwithstanding anything in the Lease to the contrary,
the Lease and this Addendum shall be governed by, construed and enforced in
accordance with the laws of the state of Idaho.
13. Miscellaneous. This Addendum, together with the provisions of the
Lease not expressly inconsistent herewith, constitutes the entire agreement between
the parties with respect to the matters addressed herein, and shall supersede all prior
oral or written negotiations, understandings and commitments. This Addendum may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall be deemed to constitute one and the same
agreement. A facsimile or other copy of this Addendum with facsimile or copied
signatures shall have the full force and effect of the original for all purposes, including
the rules of evidence applicable to court proceedings.
[Signatures follow on next page]
Non-Appropriation Addendum to Golf Cart Lease — Page 7
Lessor:
Colorado Golf& Turf, Inc.
2 ?LLL ,/2Q .
Thomas F. Bauerle, President
Lessee:
City of McCall, Idaho—McCall Golf Club
- 21‘.Ylr��
Robert S. Giles, Mayor
Attest:
essieJo Wa er, Clerk
Non-Appropriation Addendum to Golf Cart Lease — Page 8