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CC Resolution No. 98-175- RESOLUTION NO. 98-175 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF PERSONAL SERVICES AGREEMENT BETWEEN LIFETIME TENNIS, INC. AND THE CITY OF CUPERTINO TO PROVIDE TENNIS LESSONS TO CITY SPONSORED GROUPS AT THE CUPERTINO SPORTS CENTER WHEREAS, there has been presented to the City Council a proposed Personal Services Agreement Between Lifetime Tennis, Inc. and the City of Cupertino to provide tennis lessons to City sponsored groups at the Cupertino Sports Center; and WHEREAS, the terms, conditions and provisions of the agreement have been reviewed and approved by the City Attorney and the Director of Parks and Recreation. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned agreement and authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 5th day of January, 1998 by the following vote: Vote AYES: NOES: ABSENT: ABSTAIN: Members of the City Council BurneR, Dean, James, Statton, Chang None None None ATTEST: City Clerk OVED: Mayor, City of Cupertino ACCOUNT NO. C0NTP31CT kMOUNT PURCHASE ORDER NO. AN AGREEMENT BETWEEN THE CITY OF CUPERTINO AND JEFF PISERCHIO FOR CONCESSIONAIRE AND MANAGEMENT SERVICES AT BLACKBERRY FARM GOLF COURSE This AGREEMENT is entered for the purpose of providing management services at Blackberry Farm Golf Course ("Golf Course"), a CITY owned property, on an independent contract basis. A. TERM OF CONTRACT. This Agreement will become effective on July 1, 1998 and will continue to be in effect until June 30, 2000, unless otherwise terminated under the provisions of this Agreement. B. OBLIGATIONS OF CONTRACTOR. 1. Regarding CONTRACTOR'S Management Services: Duties. CONTRACTOR agrees to (i) supervise Golf Course utilization; (ii) schedule the golf shop and office staffs: (iii) enforce policies set for the public, league and tournament use of the Golf Course, including ensuring that the Release Agreement, provided by the CITY OF CUPERTINO, is executed when required; (iv) keep an accounting of all proceeds generated by the use of the Golf Course and rental equipment; (v) maintain the rental equipment; CITY to provide materials; (vi) manage ail operations provided by the golf shop and the Golf Course; and (vii) operate the Golf Course for that number of hours authorized by the CITY. 2. Regarding CONTRACTOR'S Concessionaire Services: (a) Golf Merchandise: Duties. CONTRACTOR agrees to (i) operate the Golf Shop and manage the saie, pricing, and inventory of Golf Merchandise; (ii) keep a daily accounting of all proceeds generated from the sale of merchandise and forward such accountings on a monthly basis to the CITY. CONTRACTOR shall provide a separate cash register for recording saies; and (iii) be responsible for ail locai, state, and federal taxes with regard to the golf merchandise. (b) Drivin~ Cage: Duties. CONTRACTOR agrees to (i) operate and manage the Golf Driving Cage for public practice and instruction; (ii) keep a daily accounting of all proceeds generated from the operation of the Driving Cage and forward such accountings on a monthly basis to the CITY; (iii) make any improvements or modifications to the Driving Cage facility at CONTRACTOR'S expense. The CITY must approve any improvement or modification to the Driving Cage prior to the start of work; and (iv) operate and maintain the Driving Cage in a safe condition. (c) Snacks: Duties: CONTRACTOR agrees to (i) provide and sell pre-packaged food and canned beverage items for the convenience of the golfing public; (ii) said items shall not compete or be in conflict with food and canned beverage items sold at the Blue Pheasant Restaurant; (iii) keep a dally accounting of all proceeds generated from the sale of snacks and forward such accounfmgs on a monthly basis to the CITY; (iv) be responsible for all local, State and Federal taxes with regard to the snacks; (v) comply with all Health Department regulations regarding the sale of food and beverage items. 3. Performance of Services. CONTRACTOR will determine the method, details and means of performing the above-described services, except that such services must be performed to the satisfaction of the CITY. Any complaints about the services provided by CONTRACTOR which are received by the CITY will be communicated to CONTRACTOR. If the complaints are deemed valid by the CITY'S representative, Stephen Dowiing, Director of Parks and Recreation, and are not resolved within a reasonable period of time, CONTRACTOR'S failure to respond to such complaints and to improve the service offered may be grounds for the termination of this AGREEMENT. The concessionaire service, Golf Shop, Driving Range, facility equipment and supplies shall be maintained and operated in a safe, neat, clean and orderly manner. The CITY reserves the right to have representatives on the Golf Course premises to monitor CONTRACTOR'S various activities under this AGREEMENT. 4. Workers Compensation. CONTRACTOR agrees to provide Workers Compensation insurance for his employees and agents (if applicable) and agrees to hold harmless and indemnify the CITY for any and all claims arising out of injury, disability or death of CONTRACTOR or any of his employees or agents incurred while performing services on behalf of CONTRACTOR under this AGREEMENT. CONTRACTOR shall submit to the CITY a Certificate of Workers Compensation Insurance and of current T.B. tests for all employees retained by CONTRACTOR, to assist in the performance of this AGREEMENT, who will be instructing persons 18 years or younger. 5. Emlfloyee Withholding. CONTRACTOR agrees to be responsible for applicable withholding of taxes under State and Federal law for CONTRACTOR and any of his employees or agents. 2 6. Emolovee Status/Indeoendent Contractor. At all times CONTRACTOR shall be deemed to be an independent contractor and shall not be considered an employee of the CITY. 7. Insurance. CONTRACTOR agrees to maintain a policy of insurance in the minimum amount of One Million Dollars ($1,000,000) to cover any negligent acts committed by CONTRACTOR or his employees or agents during the performance of any services under this AGREEMENT. The insurance must have the name of the CITY listed as additional named insured. CONTRACTOR agrees to hold the CITY free and harmless from any and ail claims arising from any such negligent act or omission or willful act or omission. CONTRACTOR shall submit to the CITY a Certificate of Insurance naming the CITY as additional named insured. Such Certificate of Insurance shall be subject to the CITY'S approval. 8. Indemnification and Hold Harmless. CONTRACTOR agrees to indemnify, defend and hold harmless the CITY from any and ail claims, demands, causes of action, obligations, damages and liability of any nature whatsoever which arise as a result of this AGREEMENT unless said damage is caused solely by the negligence of the CITY, its employees or agent. 9. Payment to CITY, Records and Accounts. (a) CONTRACTOR shall adopt and maintain a system of records and accounts approved by the Director of Finance of CITY. On or before the 25th of each month during which this AGREEMENT remains in effect, CONTRACTOR shall deliver to CITY a statement showing the total amounts of money collected or received by CONTRACTOR from ail sources during the preceding calendar month. Co) Commencing July 1, 1996, CONTRACTOR shall remit to CITY the sum of fifteen percent (15%) of all gross receipts, derived from the golf merchandise, golf driving cage, and snacks concessions. (c) CITY reserves the right to require an annual financial review and unannounced audits of gross receipts to verify accounting procedures of the Golf Course operations. - C. OBLIGATIONS OF THE CITY. 1. Cooperation. The CITY agrees to cooperate with CONTRACTOR to accomplish the performance of CONTRACTOR's responsibilities under this AGREEMENT. 2. Compensation. (a) CONTRACTOR'S Management Services: For managing and operating the Golf Course and rental equipment under the terms of this AGREEMENT, the CITY will pay CONTRACTOR a fee of Sixteen Hundred Fifty-Five Dollars ($1655) every two weeks commencing July 1, 1998 and ending June 30, 1999, and Seventeen Hundred and Five Dollars ($1705) every two weeks commencing July 1, 1999, and ending June 30, 2000, for a total of 52 payments. (b) CONTRACTOR'S Concessionaire Services: As compensation for providing concessionaire services performed under the terms of this AGREEMENT, CONTRACTOR shall be entitled to keep and retain eighty-five percent (85%) of gross receipts (excluding sales tax) of monies received from the golf merchandise, golf driving cage, and snacks concessions. D. TERMINATION OF AGREEMENT. 1. Termination for Breach. Should either CONTRACTOR or the CITY default in the performance of this AGREEMENT or materially breach any of its provisions, the other party may, at its option, immediately terminate this AGREEMENT by giving written notification to the other party. 2. Termination Upon Notice. Either party may terminate this AGREEMENT at any time by giving ninety (90) days written notice to the other party. Unless otherwise terminated in accordance with the terms of this AGREEMENT, this AGREEMENT shall continue in force and effect for the period specified in Section A of this AGREEMENT. E. GENERAL PROVISIONS. 1. Notices. Any notices to be given by either party under the terms of this AGREEMENT shall be made in writing and may be delivered, either personally or by certified or registered mail with postage prepaid and return receipt requested, as follows: 4 TO CONTRACTOR: Jeff Piserchio 2634 Heritage Park Circle San Jose, CA 95132 TO CITY OF CUPERTINO: Cupertino Parks and Recreation 10300 Torre Avenue Cupertino, CA 95014 Should either party terminate this AGREEMENT prior to the term specified; or should the AGREEMENT not be renewed for another term; then the CITY shall purchase from the CONTRACTOR the existing golf merchandise and snacks on hand at the prices established by invoices. Additionally, the CITY shall reimburse the CONTRACTOR for improvements made in the golf driving range; such reimbursement shall be based upon a depreciation schedule agreed upon by both parties. 2. Entire AGREEMENT. This AGREEMENT constitutes the entire AGREEMENT of the parties and supersedes any all agreements, either oral or written, between the parties with respect to the subject matter of this AGREEMENT. Any modification of this AGREEMENT shall be effective only if in writing and signed by both parties. 3. Assignment. No portion of this AGREEMENT may be assigned or subcontracted without the express written consent of the CITY, which consent shall not be unreasonably withheld. 4. Partial Invalidity. If any provision of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired or invalidated in any way. 5. Governing Law. This AGREEMENT will be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, this AGREEMENT is dated ,1996 5 Attested by: Kim Smith City Clerk JEFF PISERCHIO, "CONTRACTOR", an individual By: Jeff Piserchio Social Security # 522-76-7220 APPROVED AS TO FORM: City Attomey 6