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08-001 Jeff PiserchioAGREEMENT CUPERTINO ./ ~~ CITY OF CLIPERTINO 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3200 560-6440-7014 FY 08-09 BY THIS AGREEMENT made and entered into on the 26th of June, 2008 by and between the CITY OF CUPERTINO (Hereinafter referred to as CITY) and (1) Jeff Piserchio, 1152 Reed Avenue, Sunnyvale 94086, 408-296-4675 (home), 408-655-7906 (cell) (Hereinafter referred to as CONTRACTOR), in consideration of their mutual covenants, the parties here to agree as follows: CONTRACTOR shall provide or furnish the following specified services and/or materials: Golf Professional EXHIBITS: The following attached exhibits hereby are made part of this Agreement: Eabibit A TERMS: The services and/or materials furnished under this Agreement shall commence on July 1, 2008 and shall be completed before June 30, 2009. COMPENSATION: For the full performance of this Agreement, CITY shall pay CONTRACTOR: 61730.78 x 26 payments =645,000. Last pay period is 6/15/08 - 6/29/09 GENERAL TERMS AND CONDITIONS: Hold Harmless. CONTRACTOR agrees to save and hold harmless the CITY, its officers, agents, and employees from any and all damage and liability of every nature, including all costs of defending any claim, caused by or arising out of the performance of this Agreement. CITY shall not be liable for acts of CONTRACTOR in performing services described herein. Insurance. Should the CITY require evidence of insurability, CONTRACTOR shall file with CITY a Certificate of Insurance before commencing any services under this Agreement. Said Certificate shall be subject to the approval of CITY'S Director of Administrative Services. Non-Discrimination. It is understood and agreed that this Agreement is not a contract of employment in the sense that the relation of master and servant exists between CITY and undersigned. At all times, CONTRACTOR shall be deemed to be an independent contractor and CONTRACTOR is not authorized to bind the CITY to any contracts or other obligations in executing this Agreement. CONTRACTOR certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of CITY. Changes. This Agreement shall not be assigned or transferred without the written consent of the CITY. No changes or variations of any kind are authorized without the written consent of the CITY. n CONTRACT COORDINATOR and representative for CITY shall be: E~EI lED NAME: Timothy H. Coles DEPARTMENT: Parks 8< Recreation This Agreement shall become effective upon its execution by CITY. In witness thereof, the parties have executed this Agreement the day and year first written above. CONTRACTOR: CITY OF CUPERTINO: By: y gy; ~~ ~~ Title: Golf o ssional Title: Recreati Coordinator SS#: APPROVALS' EXPENDITURE DISTRIBUTION DEPARTMEN EAD D E ACCOUNT NUMBER AMOUNT r , ~ ~ 7 560-6440-7 645,000.00 r/ CnY CLE DATE J J ~'~ EXHIBIT A AN AGREEMENT BETWEEN THE CITY OF CUPERTINO AND JEFF PISERCHIO FOR CONCESSIONAIRE AND LESSON SERVICES This AGREEMENT is entered for the purpose of providing services at Blackberry Farm Golf Course ("Golf Course°), aCITY-owned property, on an independent contract basis. A. TERM OF CONTRACT This Agreement will commence on July 1, 2008, and will continue to be in effect until June 30, 2009, unless otherwise terminated under the provisions of this AGREEMENT. B. OBLIGATIONS OF CONTRACTOR 1. Resaardins~ CONTRACTOR'S Front Desk Oaerations: D iss CONTRACTOR agrees to (i) work front desk operations at the golf course for a minimum of 20 hours per week as specfied by the onsite recreation coordinator. Responsibilities include, but are not limited to, collecting user fees, handling phone reservations, maintaining the tee operations according to industry standards and maintaining a clean working environment: (ii) 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. 2. Res~ardina CONTRACTOR'S Concessionaire Services: (a.) Golf Merchandise: Duties CONTRACTOR agrees to (i) operate the Golf Shop and manage the sale, 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 sales; and (iii) be responsible for all local, state, and federal taxes with regard to the golf merchandise. (b.) Drivins~ Cane: Duties CONTRACTOR aggress to (i) operate and manage the Golf Driving Cage for public practice and instruction;' (ii) keep a daily accounting for 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 aggress 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 daily account of all proceeds generated from the sale of snacks and forward such accounting 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. (d.) Goff Lessons: Duties CONTRACTOR aggress to provide golf lessons. These lessons should address individuals and groups as needed. All lessons should be taught on par with PGA industry standards. 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 the CONTRACTOR which are received by the CITY will be communicated to CONTRACTOR. If the complaints are deemed valid by the CITY's representative, the Director of Parks and Recreation, and are not resolved within a reasonable period of time, CONTRACTOR's failure to respond to such complains and to improve the service offered may be grounds for the termination of this AGREEMENT. The Concessionaire Service, Golf Shop, Driving Cage, 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 pertorrnance of this AGREEMENT, who will be instructing persons 18 years or younger. 5. Employee Withholdins~: CONTRACTOR agrees to be responsible for applicable withholding of taxes under state and federal law for CONTRACTOR and any of his employees or agents. 6. Employee Status/Independent 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 all 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 alt 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. C. 9. Payment to CITY. Records and Accounffi: (a.) CONTRACTOR shall adopt and maintain a system of records and accounts approved by the Director of Finance of CITY. On or before the 25"' 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 all sources during the preceding calendar month. (b.) Commencing July 1 2008, CONTRACTOR shall remit to CITY the sum of fifteen percent (15%) of all gross receipts, derived from the golf merchandise, golf driving cage, and snack concessions. (c.) Commencing July 1, 2008, CONTRACTOR shall remit to CITY the sum of twenty percent (20%) of all receipts from golf lessons. (d.) 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. OBLIGATIONS OF CONTRACTOR 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 Front Desk 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 One Thousand Seven Hundred Thirty Dollars and seventy six cents ($1,730.76) every two weeks commencing July 1, 2008, and ending June 30, 2009. (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 golf merchandise, golf driving cage, and snack concessions. (c.) CONTRACTOR's Golf Lesson Services: As compensation for providing Golf Lessons performed under the terms of this AGREEMENT, CONTRACTOR shall be entitled to keep and retain eighty percent (80~°) of gross receipts (excluding sales tax) of monies received from golf lessons. D. TERMINATION OF CONTRACT 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. Untess 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. N to ices: Any notices to be given by either party under the terms of this AGREEMENT shall be made in writing and may be delivered, whether personally or by certified or registered mail with postage prepaid and return receipt requested, as follows: TO CONTRACTOR: Jeff Piserchio 1152 Reed Avenue Sunnyvale, CA 94086 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 merchandise on hand at the prices established by invoices. Additionally, the CITY shall reimburse the CONTRACTOR for improvements made in the driving range cage; such reimbursement shall be based upon the depreciation schedule agreed upon by both parties. For all merchandise and driving range cage improvements the limit for reimbursement will be no more than $5000. 2. Entire AGREEMENT: This AGREEMENT constitutes the entire AGREEMENT of the parties and supersedes any and all agn3ements, written or oral, 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. Assis~nment: 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 provision will nevertheless continue in full force and effect without being impaired or invalidated in any way. 5. Governins~ Law: This AGREEMENT will be governed b y and construed in accordance with the laws of the State of California.