OFFICE OF THE AUDITOR PARKS AND RECREATION WELLSHIRE GOLF COURSE REVENUE AND CONTRACT COMPLIANCE AUDIT SEPTEMBER 2007 Dennis J. Gallagher Auditor
Dennis J. Gallagher Auditor City and County of Denver 201 West Colfax Ave., Dept. 705 Denver, Colorado 80202 720-913-5000, FAX 720-913-5247 www.denvergov.org/auditor September 18, 2007 Ms. Kim Bailey, Manager Department of Parks and Recreation City and County of Denver Mr. Howard Torgrove, Co-Manager Wellshire LLC 3333 South Colorado Blvd. Denver, CO 80222 Dear Ms. Bailey and Mr. Torgrove: Attached is the Auditor s Office Internal Audit Division s revenue and contract compliance audit report of the Wellshire LLC concession agreement dated January 1, 1976. The audit was for the period January 1, 2003 through December 31, 2005. The purpose of the audit was to determine whether Wellshire LLC and the City and County of Denver complied with the terms of the contract and whether internal controls in place were adequate. The audit revealed that Wellshire failed to meet capital improvement contractual obligations, as disclosed within the accompanying report. If you have any questions, please contact Kip Memmott, Director of Internal Audit, at 720-913-5029. Sincerely, DJG/kh Dennis J. Gallagher Auditor cc: Honorable John W. Hickenlooper, Mayor Honorable Members of City Council Members of Audit Committee Arlene Dykstra, Acting City Attorney Lauri Dannemiller, City Council Staff Director Beth Machann, Controller Kelly Brough, Chief of Staff Chris Henderson, Chief Operating Officer Claude Pumilia, Chief Financial Officer The prudent stewardship of Denver s finances, resources and financial records! We are also committed to improving accountability, efficiency, effectiveness and performance in city government. We will scrupulously protect the taxpayer s interests and work collaboratively with all concerned to improve our city and its government 1
TABLE OF CONTENTS Transmittal Letter 1 Table of Contents 2 Internal Auditor s Report 3 Executive Summary 4 Background, Scope, Objective, and Methodology 5 Findings, Recommendations, and Responses 7 Schedule of Amounts Due and Paid and Related Notes 9 2
Dennis J. Gallagher Auditor City and County of Denver 201 West Colfax Ave., Dept. 705 Denver, Colorado 80202 720-913-5000, FAX 720-913-5247 www.denvergov.org/auditor INTERNAL AUDITOR S REPORT We have completed a revenue and contract compliance audit of the concession agreement dated January 1, 1976 between Wellshire LLC (Wellshire) and the City and County of Denver (City). The purpose of the audit was to determine whether Wellshire and the Department of Parks and Recreation (Department) complied with various terms and conditions of the contract, City rules and regulations, and whether internal controls were adequate. This audit was included in the Auditor s Office Internal Audit Division s 2006 Annual Audit Plan and is authorized pursuant to the City and County of Denver Charter, Article V, Part 2, Section 1, General Powers and Duties of the Auditor. We conducted our audit in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance that Wellshire and the Department complied with the terms of the concession agreement. An audit includes examining, on a test basis, evidence supporting compliance with the concession agreement and the accounting and administrative internal controls in place. The audit revealed that Wellshire has not complied with a concession agreement provision requiring capital improvements. We also found Parks and Recreation has not enforced the Concessionaire s compliance with the same contract provision related to capital improvements as of the date of this report. We extend our appreciation to the personnel who assisted and cooperated with us during the audit. Internal Audit Division Date: September 18, 2007 Kip Memmott Director of Internal Audit Staff: Dick Wibbens, CPA, Audit Manager Philip Cummings, CPA, CFE, Audit Supervisor Mike Widner, Lead Auditor Manijeh Taherynia, CPA, Staff Auditor The prudent stewardship of Denver s finances, resources and financial records! We are also committed to improving accountability, efficiency, effectiveness and performance in city government. We will scrupulously protect the taxpayer s interests and work collaboratively with all concerned to improve our city and its government. 3
EXECUTIVE SUMMARY FOR THE PERIOD JANUARY 1, 2003 THROUGH DECEMBER 31, 2005 This summary highlights the revenue and contract compliance audit findings, which are more fully described in the Findings, Recommendations, and Responses section beginning on page 7. The Findings, Recommendations, and Responses section also includes the responses of Wellshire LLC and the Department of Parks and Recreation to our findings. 1. Wellshire LLC Has Not Completed Required Capital Improvements Audit work determined that the Concessionaire did not initiate or complete $1,250,000 in capital improvements as required under Section IX, Concessionaire Improvements as of the date of this report. The required due date for completion was May 31, 2007. 1. Contract Monitoring PARKS AND RECREATION Parks and Recreation failed to effectively monitor and enforce the contract provisions related to $1,250,000 in capital improvements as required by the Concession Agreement. Also, Parks and Recreation has not submitted a contract amendment to City Council which extends the date for completion to December 31, 2008. 4
BACKGROUND, SCOPE, OBJECTIVE, AND METHODOLOGY FOR THE PERIOD JANUARY 1, 2003 THROUGH DECEMBER 31, 2005 Background Wellshire LLC (Wellshire) entered into a concession agreement with the City and County of Denver. The contract began January 1, 1976 and ends May 31, 2017. The contract contains two 5-year options to extend the Concession Agreement (the first option through May 31, 2022 and the second option through May 31, 2027). In the case of full compliance with all terms of the contract, these options may be exercised at the discretion of the Concessionaire. In accordance with the license agreement, the Concessionaire has the exclusive right to operate a restaurant to provide food and beverage service at Wellshire Golf Course. Wellshire is required to pay the City the Annual Compensation according to the following schedule: June 1, 2003 - May 31, 2004 = $25,000 June 1, 2004 - May 31, 2005 = $25,000 June 1, 2005 - May 31, 2006 = $50,000 June 1, 2006 - May 31, 2007 = $50,000 June 1, 2007 - May 31, 2008 = $75,000 June 1, 2008 - May 31, 2017 = $100,000 June 1, 2017 - May 31, 2022 = $100,000 + cumulative Consumer Price Index (CPI) for 2008-2017 (Maximum = 60%) June 1, 2022 - May 31, 2027 = Annual rental rate of 2018-2022 + cumulative CPI for 2018-2022 (Maximum = 30%) The annual payments shall be due and payable in equal monthly installments on the first day of each month during the term of the Agreement. At the discretion of the Manager of Parks and Recreation, capital improvements that are approved in advance may be accepted in lieu of rental payments. According to Paragraph C.28 of Terms and Conditions, the City agrees to either reimburse Wellshire monthly by the 10 th day of the ensuing month(s) for interior utilities, water, and sewer for the Pro Shop Area, or the Concessionaire may deduct the amount from the next monthly installment of Annual Compensation and submit the bill according to the formula stipulated in the contract. Scope Our audit of the golf course concessionaire contract (PeopleSoft fund/org. 79100/7029000) was for the period January 1, 2003 through December 31, 2005. The scope of the audit focused on 5
BACKGROUND, SCOPE, OBJECTIVE, AND METHODOLOGY FOR THE PERIOD JANUARY 1, 2003 THROUGH DECEMBER 31, 2005 payments of annual compensation as well as compliance with insurance, and other contract requirements. Objective The objective of our audit was to determine whether Wellshire properly paid Parks and Recreation the correct amounts for compensation fees in accordance with the contract provisions. Additional objectives included determining whether Wellshire and Parks and Recreation complied with other terms and conditions of the contract and City rules and regulations necessary in the circumstances. Methodology To meet the audit objectives the following evidence gathering and analysis techniques included, but were not limited to: Verification of monthly installments of annual compensation paid Determination of timeliness of payments Verification of utility cost deductions Discussions with management and staff Verification of evidence of insurance and performance bonds Review of required capital improvements 6
FINDINGS, RECOMMENDATIONS, AND RESPONSES FOR THE PERIOD JANUARY 1, 2003 THROUGH DECEMBER 31, 2005 1. Wellshire LLC Has Not Completed Required Capital Improvements Our audit found that the Concessionaire has not initiated or completed any capital improvements as required under Section IX, Concessionaire Improvements as of the date of this report. This section states, From January 1, 2003 through May 31, 2007, Concessionaire shall have expended and/or will expend not less than $1,250,000 in aggregate for Concessionaire Improvements including but not limited to purchase, repairs or replacements for or of furniture, fixtures, trade fixtures or equipment, in regard to which no City approval is necessary. Parks and Recreation states there have been no capital improvements performed by the Concessionaire as of this date. It is unlikely the concessionaire will complete substantial capital improvements, if any, by the May 31, 2007 contract deadline date. Wellshire LLC s Response Wellshire LLC chose not to respond to this audit finding. 1. Contract Monitoring PARKS AND RECREATION Parks and Recreation failed to effectively monitor and enforce the contract provisions related to the Concessionaire starting and completing $1,250,000 in capital improvements as required in the contract. During the course of our audit, Parks and Recreation stated a contract amendment would be processed by certain dates. However, as of the date of this report, the Concessionaire and Parks and Recreation have not submitted a contract amendment to City Council. Recommendation Based upon our audit examination, we conclude the Concessionaire will not be in compliance with the provisions under Section IX stated above by May 31, 2007. Section 15.a.8 Termination By City of the concession license, Terms and Conditions, allows the City to terminate the concession license if the Concessionaire shall fail to complete the authorized Concessionaire Improvements within the time limits provided herein after required notice and opportunity to resolve. Therefore, we recommend Parks and Recreation give notice to the Concessionaire of intent to terminate contract if the required capital improvements are not completed by May 31, 2007 or if there is no written amendment to this contract providing the Concessionaire with the opportunity to resolve this issue of non-compliance. If the Concessionaire fails to complete the capital 7
FINDINGS, RECOMMENDATIONS, AND RESPONSES improvements or does not resolve to comply with the intent of this provision, we recommend Parks and Recreation terminate the Concession License in an expedient manner. Parks and Recreation s Response We disagree with this finding. Parks and Recreation has been aware of the upcoming Capital Improvement deadline and have been in negotiations with Wellshire LLC to amend the Concession License in a number of aspects including capital improvements. In all likelihood, that dollar amount of capital improvements will increase significantly and an extension of time will be granted for the Concessionaire to perform these improvements. We expect to have negotiations complete within the next few weeks and the amendment processed close to the current deadline for capital improvement completion. Auditor s Rebuttal The contract due date of May 31, 2007 for Wellshire LLC to complete the required capital improvements has passed and Parks and Recreation has not processed an amendment to the contract. In response to our request for a current status, Parks and Recreation produced an undated letter from the Manager of Parks and Recreation to Wellshire LLC which extended the due date for capital improvements to December 31, 2008. The contract does not have a provision which allows the Manager of Parks and Recreation to amend the capital improvements requirement by letter. We requested the underlying authority for this action and the City Attorney, acting on behalf of the Manager, stated the Mayor, through his department managers, is in charge of the enforcement of contracts and the Parks Manager has authority under the Charter over concession licenses. The City Attorney cited Charter sections 2.2.3 related to the Mayor s authority and 2.4.4(C) with respect to the Manager. The City Attorney concludes these powers carry implied authority to temporarily forbear on the enforcement of a contract provision when the executive determines it is in the best interest of the City and the fair and reasonable response to circumstances. We disagree with the fact this provision was extended by an undated letter from the Manager of Parks and Recreation and the reliance on implied authority as stated by the City Attorney. The capital improvements requirement is a significant financial commitment to the City which has not been fulfilled by the concessionaire within a specific and reasonable time frame of five years. We believe City Council has defined authority in Charter section 3.2.6(G) for approving contracts and even more specific authority in Executive Order No. 8 Contracts and Other Written Instruments. Executive Order No. 8 Memorandum A defines an amendment as a separate contract or agreement that revises an existing contract or agreement and requires the same approval process by City Council as the original contract. Section VI A. Amendments specifically states an amendment is required whenever provisions of the contract need to be changed and verbal instructions or written correspondence may not be considered as amendments to the contract. 8
FINDINGS, RECOMMENDATIONS, AND RESPONSES We believe and recommend the City s best interest would be better served by Parks and Recreation complying with the provisions cited in the Charter and Executive Order No. 8 and submitting a contract amendment to City Council. The amendment should provide full disclosure as to why Wellshire LLC has not initiated required capital improvements over the past five years and why an extension for doing so is necessary and in the best interest of the City. 9
SCHEDULE OF AMOUNTS DUE AND PAID FOR THE PERIOD JANUARY 1, 2003 THROUGH DECEMBER 31, 2005 Amounts Due Amounts Paid Revenue Category Note (1) Note (2) Difference 2003 Annual Compensation $25,000 $25,000 $ - Credit for Utility per Contract (2,701) (2,701) - Total $22,299 $22,299 $ - 2004 Annual Compensation $25,000 $25,000 $ - Credit for Utility per Contract (8,421) (8,421) - Total $16,579 $16,579 $ - 2005 Annual Compensation $39,583 $39,583 $ - Credit for Utility per Contract (10,057) (10,057) - Total $29,526 $29,526 $ - The accompanying notes are an integral part of this schedule. 10
NOTES TO SCHEDULE OF AMOUNTS DUE AND PAID 1. Amounts Due A. Annual Compensation the Concessionaire shall pay the City annual compensation as scheduled in Section VII of the Concession Agreement. For our audit period, the compensation amount for each of the calendar years 2003 and 2004 was $25,000 and for 2005 was determined to be $39,583. B. Credits for Utility The contract states the Concessionaire is entitled to a credit against monthly installments of Annual Compensation for the utility costs paid for the Pro Shop Area. 2. Amounts Paid Amounts paid include those billed and/or due during the audit period and collected in the ordinary course of business whether or not within the audit period. 11