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HomeMy WebLinkAboutReso 1976-8446t , RESOLUTION NO. 8446 Form No. 342 Rev,. 2/76 RESOLUTION OF THE CITY COUNCIL OF fiHE CITY OF CHULA VISTA, APPROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND JOSEPH S. WARBURTON FOR THE MANAGEP~IENT, 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 that that certain agreement between THE CITY OF CHULA VISTA, a municipal corporation, and JOSEPH S. WARBURTON, for the management, supervision and operation of the Chula Vista Municipal Golf Course dated the 17th day of December 19 76 which is attached hereto and incorporated herein, theasameyasfthough 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 . ~ _. Lane F • Co e~Cit Ma a y n ger Geor e D. Lindberg, City Ati rney ADOPTED AND APPROVED by the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, this 14th day of December T9~_, by AYES: Councilmen Hamilton, Egdahl, Hobel, Cox NAYES: Councilmen Hyde ABSENT: Councilmen Nnnc Mayor of the City of Chula Vi to ATTEST ,~ . 2'~Z ~~ ' ~~/ ~ G -L_ '~,,L ~_, - ~ City Clerk j STATE OF CALIFORNIA) COU1~ I'Y OF SAN DIEGO ) s s . 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California, DO HEREBY CERTIFY that the above is a full, true and correct copy of Resolution No. not been amended or repealed. DATED and that the same has City Clerk AGREEMENT FOR THE MANAGEMENT, SUPERVISION AND OPERATION OF THE CHULA VISTA MUNICIPAL GOLF COURSE THIS AGREEMENT, made and entered into this 17th day of - December , 1976, 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 "Pro- fessional"; W I T N E S S E 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. TERP4 OF AGREEMENT, The term of this agreement shall be five years beginning on January 1, 1977 and ending at midnight December 31, 1981 unless sooner terminated as hereinafter provided, 2, DUTIES AND RIGHTS OF THE PROFESSIONAL. The Professional will, on the effective date of this agree- ment enter upon the performance of the duties as golf professional 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 inde- pendent 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 respon- sibility, and shall receive and retain all income derived from their operation, 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. (b) Personnel - Collection of Greens Fees. The Professional shall provide necessary materials and personnel at his own expense and supervise their perfor- ~' mance as golf starters. A11 personnel utilized as starters by the Professional are subject to approval by the City D4anager. 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 - 1 - Revised 12-15-76 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 Pro- fessional at all times. (c) Golfing Instruction. It is agreed that in addition to his other duties here- under 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 Pro- fessional shall devote substantially all his time to operating, supervising, promoting, and managing the func- tions 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, The City agrees, subject to availa- bility of funds, to provide on or before July 1, 1978, additional storage facilities to house powered carts owned by lessee. Said facilities shall be designed, con- structed and located at the sole discretion of lessor, provided, however, that lessor shall consult with lessee regarding said aspects of construction of the storage facilities, (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 mis- conduct, he may be dismissed at the request of the City Manager. - 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 respon- sibility 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 instan- ces of illness or during vacation periods. Vacation re- quests 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 Professional 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 inves- tigation and defense arising from said use or operation. City shall assume responsibility for any claims arising from the Golf Course maintenance and operation. Profes- sional shall provide a comprehensive insurance policy covering personal injuries, public liability and property damages, approved by the City Attorney with limits of $1 million 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 pro- . vide the City with fidelity 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 agreement, ordinary wear and tear excepted. - 3 - ~k) transfer of Contractual Rights. It is expressed 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 re- lease 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 P~anager, or his designated repre- sentative, 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 dis- play 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 material and shall provide additional space for golf carts as provided under Section 2(e) of this agreement. 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 Main- e tenance) 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 practicr 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, - 4 - 7. REMUNERATION FOR PROFESSIONAL. As consideration for the services rendered by him as Pro- fessional 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 that the Professional shall receive-the following: (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 annual gross receipts, or the City will pay to the Professional a percentage of annual greens fees revenues based on the following schedule: Gross Profit Gross Profit % Greens Fees Due Pro (1) More Than Less Than % Gross Profit Due City (2) -- 95,000 4-1/2% (1) 95,000 100,001 4 % (1) 100,000 105,001 3-1/2% (1) 105,000 110,001 3 % (1) 110,000 115,001 2-1/2% (1) 115,000 120,001 2 % (1) 120,000 125,001 1-1/2% (1) 125,000 130,001 1 % (1) 130,000 135,001 1/2% (1) 135,000 140,001 0 (1) 140,000 145,001 1/2% (2) 145,000 150,001 1 % (2) 150,000 155,001 1-1/2% (2) 155,000 160,001 2 % (2) 160,000 165,001 2-1/2% (2) 165,000 170,001 3 % (2) 170,000 175,001 3-1/2% (2) 175,000 180,001 4 % (2) 180,000 -- 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 annually 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 an annual basis in arrears on or before April 1 of the following year and all sums due the City from the Professional based on the above schedule shall be payable on an annual basis in arrears on or before April 1 of the following year. 9. PROFESSIONAL'S RESPONSIBILITY FOR CONDITION OF THE GOLF COURSE. The Professional shall be fully aware of the material con- ditions 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 Supervisor, or his men. - 5 - 10. RENEWAL AND TERMINATION. In the event that the Golf Pro-Manager shall faithfully keep and perform all of the terms, conditions and agreements contained in this agreement, 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 Lessee by others or assumption of the operation by City forces, the City, if the operation is assumed by the City or the replacement Lessee, shall purchase from Lessee all non-returnable inventory of Lessee at original wholesale value and his equipment at fair market value. This lease m.ay be terminated at any time by either party upon one hundred and twenty (120) days written notice, provided that termination by Lessor shall be based upon a failure to substantially perform in accordance with the terms and conditions of this lease. Lessor shall give Lessee written notice of said non-performance, directing the Lessee to perform in accordance with the terms and conditions of this lease within sixty (60) days. Should Lessee fail to so substantially perform within said sixty (60) day period, City may terminate said lease sixty (60) days thereafter. Termination by Lessee as provided herein must be by written notice given to the City. Lessor shall also tender to Lessee the proportional part of any rent paid in advance by Lessee. 11. FINANCIAL STATEb'IENTS REQUIRED. Professional shall furnish City monthly income and expense statements, prepared in accordance with generally acceptable account- ing principles which shall accurately reflect Professional'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 Profes- sional to the City as provided under Section 8 shall be made on the basis of an annual financial statement and a balance sheet. Said annual statement shall be filed on or before April 1 of each year 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 owed to the City. Pdotwithstanding the above, City reserves the right during the term of this agreement to require an audited annual financial statement prepared by a Certified Public Accountant if in the judg- ment of the Director of Finance such an audit is deemed necessary. If so deemed, the City Council shall designate another Cer- tified 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. Ird44ITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHU A VIST PROFESSIONAL V ~ yor of~the Cit of Chula V" to J" e S. Warburton ATTEST: iG'1L7T-c:c,' `~, '` ~ -, '(.c'-~-'/'. " ~ City Clerk Approved as ~ f.o~rm by ,~-~ ~ `' ~'~ . Geor D. Lindberg, City A rney - 6 -