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HomeMy WebLinkAboutReso 1982-10960 RESOLUTION NO. 10960 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND JOE WARBURTON FOR THE MANAGEMENT, SUPERVISION AND OPERATION OF THE CHULA VISTA MUNICIPAL GOLF COURSE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain agreement between THE CITY OF CHULA VISTA, a municipal corporation, and Joe Warburton for the management, supervision and operation of the Chula Vista Municipal _~olf Course .-;- .... dated the"f- 13th day of July , 19 82, a copy of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula vista. Presented by ~ ......-- Approved as to form by ~",.J.'Yy'-A ~ ~ ," _ V..&:77 ' George D. Lindberg, City Attorney Eugene A. Asmus, Assistant City Manager If-/()t//;/J Form 342 Rev. 7/82 ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, this 27th 82 19 , by the following vote, to-wit: day of July AYES: NAYES: ABSTAIN: ABSENT: Councilmen Malcolm, Moore, McCandliss, Scott, Cox Councilmen None Councilmen None Councilmen None ATT~~1J2.rif~, City Clerk' 1lC- ity of Chula Vista STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) s s. CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 10960 ,and that the same has not been amended or repealed. DATED ( seal) City Clerk CC-660 /- Revised 7/]2/82 AGREEMENT FOR THE MANAGEMENT, SUPERVISION AND OPERATION OF THE CHULA VISTA MUNICIPAL GOLF COURSE THIS AGREEMENT, made and entered into this 13th day of July ,1982, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter referred to as IICityll and JOE WARBURTON, professional golfer, hereinafter referred to as IIProfessionalll; - - - - ...- - - - - - - WIT N E SSE T H : WHEREAS, the City, in the operation and conduct of a golf course in said City, requires the services of a professional golfer to promote the golf course and provide professional management, and JOE WARBURTON is a professional golfer capable and able to render the services required by the City. NOW, THEREFORE, in consideration of the premises and upon the terms and conditions herein contained, the City and Professional agree as follows: 1. TERM OF AGREEMENT. The term of this agreement shall be five years beginning on August 1 , 1982 and ending at midnight July 31 1987 unless sooner terminated as hereinafter provided. 2. DUTIES AND RIGHTS OF THE PROFESSIONAL. The Professional will, on the effective date of this agreement enter upon the performance of the duties as golf profes- sional in the City of Chula Vista and in particular: (a) Manner of Operation. The Professional shall operate the retail concessions and manage starting times at the golf course in such a manner as to promote the recreation and enjoyment of residents of Chula Vista and the general public. (b) Professional Shop. The Professional shall have the right to sell golf balls, clubs, golf rental sets, sportswear, golf attire and other golf accessories. -1- l!-/~ 116" (c) Personnel - Collection of Greens Fees. The Professional shall provide necessary materials and personnel at his own expense and supervise their performance as golf starters. All personnel utilized as starters by the Professional are subject to approval by the Director of Parks and Recreation. Such approval shall be obtained prior to commencement of duties. The Professional, or his agent, shall act as starter and shall collect all greens fees, reservations fees, and other fees established by the City. Greens fees required shall be prescribed from time to time by the City. The Professional shall keep an accurate record of all sources of revenue, the number and class of players, the amounts collected from each class of player, and shall pre- pare a daily report, together with cash register tapes. Monies received shall be deposited daily except on weekends and a monthly income summary report filed with the Director of Finance of the City of Chula vista. The bookkeeping records installed and maintained by the Professional shall be approved as to form by the Director of Finance. The City may inspect and audit the books of accounts and records of the Professional at all times. (d) Golfing Instruction. It is agreed that in addition to his other duties hereunder the Professional shall cause instruction to be given in the game of golf. His charges shall be in keeping w~fi accepted custom and practices in the profession. - (e) Promotional Activities. Except as may be otherwise provided by the City, the Professional shall devote substantially all of his business time to operating, supervising, promoting, and managing the functions authorized by this agreement. He shall coordinate, promote and schedule such golfing events sponsored by, by way of illustration but not limitation, the City of Chula Vista, convention type organizations, and such other recognized organizations as may from time to time request scheduling of golf events. The Professional shall advertise and promote the golf course and shall be financially responsible for such promotional functions. -2- /"l /7 /; -/07tP(j (f) Equipment Repair. Professional shall have available to the pUblic a repair service for golf equipment. Repairs need not be performed at the golf course. (g) Rental and Operation of Powered Golf Carts. Professional shall have available for rental by the public powered carts and hand carts for use at the golf course. Professional shall have available a minimum of 35 powered riding carts for public use. Professional may prohibit the use of golfer owned powered riding carts, but Professional shall not prohibit the use of privately owned hand carts, whether powered or nonpowered. Professional shall not prohibit the use of powered riding carts used by the City of Chula vista for maintenance, fire, police or other noncommercial public purposes. As used herein, "hand carts" refer to walking carts for which there is no seat or place for a seat. All existing powered carts over five (5) years in age shall be replaced as follows: (1) No less than fifty percent (50%) of all powered carts over five (5) years in age utilized by the golfing public shall be replaced with new carts no later than ninety (90) days after the effective date of this agreement. (2) No less than nine (9) of the remaining powered carts over five (5) years in age utilized by the golfing public shall be replaced with new carts no later than the first anniversary of this agreement. (3) All remaining carts over five (5) years in age utilized by the golfing public shall be replaced with new carts no later than the second anniversary of this agreement. (4) All carts utilized by the golfing public subject to (1), (2) and (3) above shall not exceed five (5) years in age during the remaining term of this agreement. (h) Personnel - Salaries. The Professional shall employ any and all assistants that may be necessary to carry out the terms and provisions:of this agreement and shall pay their salaries and such other and -3- /1-- /fJf61J further sums as may be required of them for tax and other purposes. If these assistants collect or handle any money due the City of Chula Vista, they shall be subject to approval as provided herein by the Director of Parks and Recreation before being employed by the Professional. If for any reason any of said assistants shall display flagrant misconduct, he shall be dismissed at the request of the Director of Parks and Recreation. . (i) Maintenance of Pro Shop and Cart Storage Area. The Professional shall keep the Pro Shop premises and cart storage area assigned by this agreement in a clean and sanitary condition and free from rubbish at all times. The Professional shall assume complete responsibility for the maintenance and janitorial services for said premises. Pro- fessional shall be responsible for the cost of all utilities for the Pro Shop and golf cart storage area. No signs or advertising matter shall be displayed outside such premises without prior consent of the Director of Parks and Recrea- tion. (j) Consent to Alter Premises. The Professional shall not make any structural alterations or additions to the Pro Shop, cart storage area or to any equip- ment belonging to the City without first having th~ written consent of the Director of Parks and Recreation ~such change or alterations. Upon the expiration of ttie. agreement, the Professional shall put the premises in as good a condition as at the beginning of said agreement. (k) Working Conditions - Vacation. The Professional, his agents or employees in sufficient number to handle golf course activities, shall be on duty at the golf course each and every golfing day during the period of this agreement. The Professional shall not be absent from the golf course more than two days in any week without first having obtained consent of the Director.of Parks and Recrea- tion except in instances of illness or during vacation periods. Vacation requests shall be subject to the approval of the Director of Parks and Recreation. (1) Hold Harmless - Insurance. It is expressly understood and agreed that the Professional shall indemnify and hold harmless the City, its officers, employees or agents, from any claims arising from the use or supervision of the Pro Shop area, the cart storage area, the driving range and from the operation of golf carts. -4- ~-/C~O He shall further indemnify the City of any other expenses in relation to potential liability claims, such as investigation and defense arising from said use or operation. City shall assume responsibility for any claims arising from the Golf Course maintenance and operation. Professional shall provide a comprehensive insurance policy covering personal injuries, public liability and property damages, approved by the City Attorney with limits of one million dollars combined single limitation, and shall also carry a policy of Worker's Compen- sation Insurance covering any and all of his employees. Each policy shall provide that a ninety (90) day notice shall be given by the insurance company to the City before cancel- lation. Further, the Professional shall name the City as an additional insured on any insurance policies which he may carry for his own protection. Approved copies of these policies or certificates shall be filed with the Risk Manager of the City of Chula vista. The Professional and any of his assistants or employees who are authorized to collect money shall provide the City with fidelity bonds in the amount of $5,000 for each such person. (m) Transfer of Contractual Rights. It is expressly understood and agreed that the Professional may not assign or transfer any of the rights, licenses, or privileges or any part thereof of this agreement without the written consent of the City having been obtained. This agreement cannot be assigned involuntarily or by operation or process of law and should the Professional be adjudged bankrupt or become insolvent or make a general assignment for the benefit of his creditors or fail to obtain the release of any levy of attachment or execution upon his payment within ten days after such levy is made, the City may consider such to be a breach of the agreement and may cancel and terminate same. (n) Reclamation of Golf Balls. The Professional shall have the right to all golf balls reclaimed or salvaged from any portion of the premises including the ponds located at the golf course. (0) Financial Statements Required. The Professional shall keep adequate books and records, make all tax returns and pay all taxes required in connection therewith in his own name. Such books and records shall be the property of the Professional but shall be open to the inspection of the City acting by and through its City Manager or other duly authorized agent at reasonable times during business hours. / -5- /f-/IY160 Professional shall furnish City monthly income and expense statements, prepared in accordance with generally acceptable accounting principles which shall accurately reflect Profes- sional's total monthly receipts, gross profit and net income before taxes. The gross profit percentage determined in the prior year shall be used in preparing such financial statements, except that annually Professional shall be required to take a physical inventory. Payments made by the Professional to the City shall be made on the basis of the monthly financial statement as provided under Section 8. Said monthly statement shall be filed on or before the twentieth day of the following month and shall be used to determine the percentage of the Professional's gross profit owed to the City. Nothwithstanding the above, City reserves the right during the term of this agreement to require an audited financial statement prepared by a Certified Public Accountant if in the judgment of the Director of Finance such an audit is deemed necessary. If so deemed, the City Council shall designate another Certified Public Accountant who shall inspect the books of Professional and recommend whether such an audit is neces- sary. Professional shall pay any fees of said de~nated C.P.A. and a subsequent audit if conducted. _-_ 3. INDEPENDENT CONTRACTOR. Professional shall operate the described commercial activities as a independent contractor. Professional shall incur obligations related thereto in his own name and pay for all materials and merchandise and services used in the operation of such commercial activities on his own responsibility and hold the City of Chula Vista harmless therefrom. 4. PRO SHOP AND CART STORAGE AREA. Professional shall conduct the commercial activities from the Pro Shop area. The Pro Shop area shall be provided by the City of Chula Vista at a location determined by the City. The Pro Shop area shall consist of a suitable room for retail sales. The cart storage area will be provided and consist of a workshop, adequate storage space for golf clubs, golf carts and other related materials. The area contemplated for these purposes is an area of approximately 2800 square feet located below the restaurant area under Jimmy'S on the Green. -6- ~~~ 5. AREA FOR PRACTICE AND DRIVING RANGE. The City shall also provide proper land area on the golf course for a driving range. Said range will be operated by the Professional. Professional also will provide suitable practice balls and clubs for such remuneration as is usually charged at a golf practice range of this nature. It is further understood and agreed that City will repair the existing driving range fencing within sixty (60) days of the effective date of this agreement, but Professional shall be responsible for subsequent repair and replacement during the remaining term of this agreement or any extensions thereto. 6. TERMINATION ON DEFAULT - VIOLATION OF LAW. It is expressly understood and agreed that in the event the Professional violates any ordinance of the City of Chula vista or any law of the State of California constituting a crime involving moral turpitude or upon proof of disorderly conduct on the part of the Professional or other conduct deleterious to the operation of the Municipal Golf Course, the City may terminate the rights, licenses and privileges contained in said agreement. 7. REMUNERATION FOR PROFESSIONAL. As consideration for the services rendered by him as Professional and the services of all of his employees, it is agreed by the parties that the Professional shall receive the following: (a) All revenues received from rental of golf carts. (b) All revenues from golf lessons. (c) All reve nue s from sales at the Pro Shop. (d) All revenues from repair of golfing equipment. (e) All revenues from the driving rang e . ( f) All revenues from golf club and equipment storage rental. (g) All revenues for golf equipment rentals. 8. REVENUE TO CITY. All greens fees and other fees set by the City of Chula Vista and collected by Professional shall be paid over to the City as its exclusive property. -7- 1(-/tfbC Professional shall pay each month to the City of Chula Vista a sum equal to 5 1/4% of the gross profits received pursuant to Section 7 or a beginning minimum rent of Six Hundred Dollars ($600) per month, whichever is greater except that revenues from golf lessons as provided under Section 7(b) above and prizes received by Professional from tournament play shall be excluded from this obligation. All sums due to the City from the Professional shall be paid on or before the 20th of the following month. "Gross Profit" is defined for the purpose of this agreement to mean all income exclusive of green fees, lessons income and prizes from tournament play derived monthly from the Professional from his operation, less the cost of goods sold in the Pro Shop. 9. ANNUAL ADJUSTMENTS BASED ON CONSUMER PRICE INDEX It is expressly understood and agreed that Professional's minimum rent of Six Hundred Dollars ($600) per month shall be subject to adjust- ments on the second, third, fourth and fifth anniversary of the term of this agreement by the annual percentage change as reflected in the San Die(]o, California, Metropolitan Consumer Price Index as published by the United States Department of Labor, Bureau of Labor Statistics, \~ashington, D.C. or, if that index is no longer published by a similar index intended to reflect the increase in consumer prices for All Urban Consumers. For example, if the All Urban Consumers Index for the San Diego, California area shows a 10% increase during the preceding 12 months, Professional's new minimum monthly rent commencing on the thirteenth month of this agreement shall be $660 per month. All subsequent adjustments based on the All Urban Consumers Index shall be calculated on the previous month's adjusted minimum rent figure. 10. PROFESSIONAL'S RESPONSIBILITY FOR CONDITION O~ THE GOLF COURSE. -- The Professional shall be fully aware of the material conditions of the golf course and golfing facilities at all times, and as the conditions dictate, make specific recommendations to the City for corrective actions as the City deems necessary. He shall not be held responsible for work performed or lack of same by the Golf Course Maintenance Supervior, or his work force. 11. TERMINATION. Should the Professional fail to perform in accordance with the terms and conditions of this lease, City may terminate said lease upon thirty (30) days written notice. In addition, City retains the right to terminate this lease in two other instances. The first instance would be if the City should decide to take total responsibility for the maintenance and operation of the golf course with City work forces. The second instance would be if the City decides to contract out total responsibility for maintenance and operation of the golf course to a private concern. "Total responsibility" means the assumption of those kinds of duties which are presently undertaken by the Professional and the physical maintenance of the course itself. In either of these two instances, the City may terminate the lease upon one hundred and twenty (120) days written notice. -8- If' - I tJP /:10 Professional may terminate this agreement upon one hundred and twenty (120) days written notice given to the City. Written notice shall be sent by first-class mail to: THE CITY OF CHULA VISTA: City Manager The City of Chula vista 276 Fourth Avenue Chula Vista, California 92010 PROFESSIONAL: Joseph S. Warburton Chula Vista Municipal Golf Course 4475 Bonita Road Bonita, California 92002 12. DISPOSITION OF INVENTORY UPON TERMINATION. Upon termination by the City, the City shall purchase from Professional at Professional's option all nonreturnable inventory of Professional at original wholesale value and the golf carts at their depreciated value. 13. PRIOR AGREEMENTS. Upon execution of this agreement, all prior agreem~nts are null and void. 4 14. THIRD PARTIES. It is the intention of the parties to this agreement that the provisions herein are not to be construed to inure to the benefit of third parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year hereinabove set forth. OF PROFESSIONAL J {fj~ Warburton Approved as to form by ~ City~y -9- /(-/09'&:'0 EXHIBIT "A" CONTRACT PROJECT - COLF MANAGER 3 YEAR PROJECTION AUGUST, 1982 'ill JULY, 1983 AUGUST, 1983 . 'ill JULY ,1984 AUGUST, 1984 'ill JULY, 1984 Estirrated Gross Profit $ 140,000 $ 150,000 $ 160,000 Estirrated Expenses 77 , 055 77,055 77 , 055 + r1inimum Rent 7,200 7,200 7,200 Total Expenses 84,255 84,255 84,255 Net Incane before taxes. No capital for cart, interest 55,745 65,745 75,745 or depreciation * 4,140 18 Carts at $2,300 = * 4,140 2nd.year + 4,140 $41,400 ~ 5 years 1st.year + 8,280 1st.year + 8,280 Principal 1 year 8,280 $12,420 $16,560 4,140 4,140 Interest at 20% 1st.year + 8,280 2nd year + 4,140 Interest 1 year 8,280 12,420 1st.year+ 8,280 ~ 16,560 4,140 Deprecia tion ~ 5 years 4,140 2nd. year + 4,140 Depreciation 1 year 8,280 1st.year + 8,280 1st.year+ 8,280 $12,420 $16,560 'IOTAL CAPITAL EXPENSE $24,840 $37,260 $49,680 Estimated Net Income with cart, interest, Depreciation before + $30,905 + $28,269 + $26,065 taxes * 9 carts at $2,300 = $20,700 ~ 5 yrs. = Principal 1 year (( -- /0960 REVISED EXHIBIT "B" NE\~ AGREEMENT CONDITIONS BASED UPON THE lAST 5 YEARS AUDITED FIGURES* 1981 1980 1979 1978 1977 GROSS PROFIT 128,891 69,540 131,028 .118,399 106,953 City Commissions - (), 309 -6,244 : - 4,063 - 8,487 - 9,094 Golf. Lessons - 2,066 -1,230 - 1,538 - 1,261 534 " Total Gross Profit 120,516 62,006 125,427 108,651 97,325 Expenses 8;;;398 54,763 87,148 74,590 68,895 Hinimum Rent 7,200 7,200 7,200 7,200 7,200 Total Exr:enses 92,598 61,963 94,348 81,790 76,095 Net before Taxes 27,918 103 31,079 26,861 21,230 * No c~nsideration is taken for the replacement of carts during this time period as is reqw.red by the new Agreement. If -- /096[;