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HomeMy WebLinkAboutReso 1981-10732 RESOLUTION NO. 10732 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BE'lWEEN THE CITY OF CHULA VISTA AND JOE WARBURTON FOR THE MANAGEMENT, SUPER- VISION AND OPERATION OF THE CHULA VISTA MUNICIPAL GOLF COURSE ON A MONTH-TO-MONTH BASIS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the ci ty of Chula Vista does hereby resolve as follONS: NOW, THEREFORE, BE IT RESOLVED by the Ci ty 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 Golf Course on a month-to-month basis dated the 22nd day of December , 1981 , 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 ~smus, Manager ~ ....... --" ./ Assistant City George D. Lindberg, City Attorney ADOPTED AND APPROVED by the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, this 22nd day of December , 19l:l 1 , by the following vote, to-wit: AYES: Councilmen Cox, Gillow, Campbell, NcCand1iss, Scott NAYES: Councilmen None ABSENT: Councilmen None of Chula Vista ~ _ /7 _ J #_ Mayor ATTES . 'q'/}7/// Y-2JC'i&//~.a/'----- City Clerk 0 .-./ STATE m' CALIFORNIA) COUNTY OF SAN DIEGO) ss. CITY OF CHULA VISTA) I, , City Clerk of the City of Chula Vista, California, DO HEREBY CERTIFY that the above is a full, true and correct copy of Resolution No. and t.hat. the same has not been amended or repealed. DATED--- City Clerk Form No. 342 Rev. 7/81 Revised 12/21/81 AGREEMENT FOR THE MANAGEMENT, SUPERVISION AND OPERATION OF THE CHULA VISTA MUNICIPAL GOLF COURSE THIS AGREEMENT, made and entered into this 22nd day of December, 1981, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter referred to as "City" and JOE WARBURTON, professional golfer, hereinafter referred to as "Professionalll i WIT N E SSE T H : WHEREAS, the current five-year agreement with the golf professional, Joe Warburton, as approved by Resolution No. 8446 on December 14, 1976, will expire on December 31, 1981, and WHEREAS, the staff is presently undertaking a study of the feasibility and desirability of receiving proposals for the total operation of the golf course, and WHEREAS, the City Council has not had an opportunity to review such a study, and WHEREAS, it is now desired to enter into a new contract with Joe Warburton on a month-to-month basis. NOW, THEREFORE, in consideration of the terms and condi- tions as set forth herein, the City and Professional agree to enter into a new contract which shall supersede and replace any and all prior agreements: 1. TERM OF AGREEMENT. The term of this agreement for the services of Joe Warburton shall be from month to month commencing on January 1, 1982. It shall continue until terminated as hereinafter provided. 2. DUTIES AND RIGHTS OF THE PROFESSIONAL. The Professional will perform the duties of golf profes- sional in the City of Chula Vista and in particular: (a) Professional Shop. The Professional shall have the right to sell golf balls, clubs, golf rental sets, sportswear, golf attire and other golf accessories at prices currently recommended by the manufacturers of such equipment. The Professional shall operate all concessions herein referred to as an independent contractor. He shall purchase and pay for all materials and merchandise used or sold in the operation of said concessions, in his name and on his own responsibility, and shall receive and retain all income derived from their operations, as his own and for his sole use and benefit. 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. -1- R-10732 (b) 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 City Manager. The Professional, or his agent, shall act as starter and shall collect all greens fees, reserva- tions 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 prepare 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. (c) 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 and that as charges therefor his fee shall be in keeping with accepted custom and practices in the profession. (d) Promotional Activities. Except as may be otherwise provided by the City, the Professional shall devote substantially all his 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. Under the direction of the City, the Professional shall advertise and promote the golf course and shall be responsible for such promotional functions consistent with funds allocated. (e) Rental and Operation of Powered Golf Carts. The Professional shall have the exclusive right to provide, maintain, rent and operate powered golf carts on or at the golf course, and may prohibit the use of private powered carts thereon. (f) 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 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 City Manager before being employed by the Professional. If for any reason any of said assistants shall display flagrant misconduct, he may be dismissed at the request of the City Manager. b~ -2- (g) Maintenance of Pro Shop. The Professional shall keep the Pro Shop premises assigned by this agreement in a clean and sanitary condition and free from rubbish at all times and shall assume complete responsibility for janitorial services for said premises. No signs or advertising matter shall be displayed outside such premises without prior consent of the City Manager. (h) 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 unless he is representing the City of Chula Vista by performing in a golf tournament within the boundaries of Southern California without first having obtained consent of the Director of Parks and Recreation, except in in- stances of illness or during vacation periods. Vacation requests shall be subject to recommendation of the Director of Parks and Recreation and approval of the City Manager. (i) Hold Harmless - Insurance. It is expressly understood and agreed that the Profes- sional shall indemnify and hold harmless the City, its officers, employees or agents, from any claims arising from the use or supervision of the premises known as the Pro Shop and the Driving Range and from the operation of golf carts. 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 Compensation Insurance covering any and all of his employees. 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 Director of Finance 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 fidelitfy bonds in the amount of $5,000 for each such person. (j) Consent to Alter Premises. It is further understood and agreed that the Professional shall not make any structural alterations or additions to the Pro Shop or to any equipment belonging to the City without first having the written consent of the City Manager to such change or alterations. The City hereby recognizes that the Pro Shop may have to be recarpeted from time to time at City cost subject to availability of funds. Upon the expiration of the agreement, the Professional shall be expected to put the premises in as good a condition as at the beginning of said agrement, ordinary wear and tear excepted. b~ -3- (k) 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. (1) 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. 3. RESPONSIBILITY TO CITY MANAGER. During the term of this agreement, the Professional shall be directly responsible to the City Manager, or his designated representative. 4. SPACE FOR PRO SHOP. The City of Chula Vista shall furnish a room and workshop in the Club House for use by the Professional for the sale and display of golf equipment, merchandise and wearing apparel. City shall also provide for space for the storage of twenty-four (24) electric golf carts, golf clubs and other supplies and materials. 5. AREA FOR PRACTICE AND DRIVING RANGE. The City shall also provide proper land area on the golf course for a golf practice range and maintain the driving range in a manner that will in no way be harmful to ball retriever or vehicle (ball retriever to be acceptable to Supervisor of Golf Course Maintenance) so that range balls will not have to be collected manually. 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. 6. TERMINATION ON DEFAULT - VIOLATION OF LAW. It is expressly understood and agreed that in the event that default is made by the Professional in violating 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 not otherwise capable of remedy as provided under Section 10 of this agreement, 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 and the services to act as starters, it is expressly understood and agreed by the parties hereto the the Professional shall receive the following: ~~~ -4- (a) All revenues received from the lease of golf carts. (b) All revenues from golf lessons. (c) All revenues from sales at the Pro Shop. (d) All revenues from repair of golfing equipment. (e) All revenues from the driving range. All greens fees collected at the golf course shall be the exclusive property of the City subject to Section 8. 8. PRO-RATION OF GREENS FEES. As consideration to the City, Professional shall pay to the City a percentage based on his monthly gross receipts, or the City will pay to the Professional a percentage of monthly greens fees revenues based on the fOllowing schedule: Gross Profit Gross Profit % Greens Fees Due Pro (l) More Than Less Than % Gross Profit Due City (2 ) 7,916 4-1/2% (1) 7,916 8,333 4 % (1) 8,333 8,750 3-1/2% (l) 8,750 9,166 3 % (l) 9,166 9,583 2-1/2% (l) 9,583 10,000 2 % 0) 10,000 10,416 1-1/2% (1) 10,416 10,833 1 % (1) 10,833 11,250 1/2% 0) 11,250 11,666 0 (l) 11,666 12,083 1/2% (2) 12,083 12,500 1 % (2) 12,500 12,916 1-1/2% (2 ) 12,916 13,333 2 % (2 ) 13,333 13,750 2-1/2% (2) 13,750 14,166 3 % (2 ) 14,166 14,583 3-1/2% (2 ) 14,583 15,000 4 % (2 ) 15,000 4-1/2% (2 ) "Gross Profit" is defined for the purpose of this agreement to mean all income, exclusive of greens fees, fees from golf lessons and prizes from tournament play, derived monthly by the Professional from his course operation less cost of goods sold in the Pro Shop. All sums due the Professional from the City, based on the above schedule shall be payable on a monthly basis in arrears on or before the thirtieth day of the following month and all sums due the City from the Professional based on the above schedule shall be payable on a monthly basis in arrears on or before the thirtieth day of the following month. 9. PROFESSIONAL'S RESPONSIBILITY FOR CONDITION OF 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 men. .'7 !) - /t) 1;';2- -5- 10. RENEWAL AND TERMINATION. In the event that the Professional shall faithfully keep and perform all the terms, conditions and agreements contained herein, he shall have the right of first refusal of any renewal of said agreement, provided, however, said right of first refusal shall not be applicable if the City should decide to operate the Golf Course with City work forces. In the event of cancellation of this agreement, replacement of Professional by others, or assumption of the operation by City forces, the City, if the operation is assumed by the City or replacement Professional, shall purchase from Professional all non-returnable inventory of Professional at original wholesale value and his equipment at fair market value. This lease may be terminated for any reason at any time by either party on 120 days written notice. Should Professional fail to substantially perform in accordance with the terms and conditions of this lease, City may terminate said lease upon thirty (30) days written notice. Termination by Professional as provided herein must be by written notice given to the City. Written notice sent by first class mail to the City Manager, City of Chula Vista, 276 Fourth Avenue, Chu1a Vista, California 92010, or Joe Warburton, Chula Vista Municipal Golf Course, Chula Vista, California 92010 shall be sufficient for purpose of termination. 11. FINANCIAL STATEMENTS REQUIRED. Professional shall furnish City monthly income and expense statements, prepared in accordance with generally accept- able 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. Remuneration for services or payments made by the Professional to the City as provided under Section 8 shall be made on the basis of the monthly financial statement. Said monthly statement shall be filed on or before the thirtieth day of the following month and shall be used to determine the percentage of green fees the Professional is entitled to or the percentage of the Professional's gross profit owned to the City. Notwithstanding the above, City reserves the right during the term of Ulis agreement to require an audited financial state- ment 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 necessary. Professional shall pay any fees of said designated C.P.A. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year hereinabove set forth. THE C TY OF CHULA PROFESSIONAL ~; Approved as to form by , (17(,--" ~ .... Jc/'<-~,Z~?' //?<.'l ,//C/ ' , City At~rney ;(7 /I( -/t73?- -' -h-