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90-045e - Blackberry Farm - Jeff Piserchio - Concessionaire & Golf Course manager Reso 8704 and 9116A G R E E M E N ,�Fp Notot000Eceeed $27,775.20 o.a o E ion dtb°j CITY OF CUPERTINO oa0 P.O. Box 580 Qua �.�� �Z Cupertino, CA 95015+) j} q 5 252-4505 NO. White BY THIS AGREEMENT made and entered into on the lst day of April 19 91 by and between the CITY OF CUPERTINO (Hereinafter referred to as CITY) and Name (1) Jeff Piserchio (2) Address (Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants, the parties hereto agree as follows: CONTRACTOR Shall provide or furnish the following specified services and/or materials: Blackberry Farm Golf Course Manager EXHIBITS: The following attached exhibits hereby are made part of this Agreement: Exhibit A — Services Exhibit B — Special Provisions TERMS The services and/or materials furnished under this Agreement shall commence on and shall be completed before December 31, 1991 April 3, 1991 COMPENSATION For the full performance of this Agreement, CITY shall pay CONTRACTOR: 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 per- formance 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. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. Interest of Contractor. 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. CONTRACT CO-ORDINATOR and representative for CITY shall be: NAME Michael S. O'Dowd DEPARTMENT Parks and Recreation This Agreement shall become effective upon its execution by CITY, in witness thereof, the parties have executed this Agreement the day and year Fi st wri qn above. CONTRACTO CITY PF/ C, PERTINO:� BY / By lit c C�� I Title � eMIME 117EMCTitle Recreation Supervi or Soc. Sec.# APPROVALS Y NA`E: Jeff Piserchio EXHIBIT A (services) 1. The services to be performed by CONTRACTOR: Supervise and schedule golf shop staff and office manage merchandise inventory orders and pricing, enforce policies for public, league and tournament usage, collect and account for all revenue generated, maintenance of rental equipment and manage all o erations rovided by the golf course and golf shop. 2. The times and places CONTRACTOR will perform the services: •3. The number and eligibility of persons to receive the services: N/A 4. Fee to CONTRACTOR for services: A bi-weekly payment of $1388.76, not to exceed $27,775,20 -for calendar year 1991. 10% commission on merchandise sale payable after June, September and December 1991. Jeff Piserchio EXHIBIT B (special provisions) 1. In the event that Contractor has employees who will assist in the performance of this Agreement, Contractor shall file with City a Certificate of Workman's Compensation Insurance and of current T.B. test for those instructing persons 18 years and younger. 2. In the event that less than N/A persons shall request and pay for the services prior to the agreed upon time for the commencement of services to be performed by Contractor, upon written notice to City, may cancel and withdraw from this Agreement. 3. City shall have no right of control as to the manner Contractor performs the services to be performed. NEVERTHELESS, City may, at any time, observe the manner in which such services are being performed by Contractor. 4. The Contractor shall comply with all applicable Federal, State, and local laws and ordinances including, but not limited to, unemployemnt insurance benefits, F.I.C.A. laws, the city business license ordinance, and a current T.B. test for all contractors and their employees who will be instructing persons 18 years and younger. AN AGREEMENT BETWEEN THE CUPERTINO PUBLIC FACILI'T'IES CORPORATION AND JEFF PISERCHIO FOR CONCESSIONAIRE AND MANAGEMENT SERVICES AT BLACKBERRY FARM GOLF COURSE/PICNIC GROUNDS THIS AGREEMENT is entered for the purpose of providing beer and wine service and management services at Blackberry Farm Golf Course/Picnic Grounds ("Golf Course"), a CITY owned property, on an independent contract basis. A. TERM OF CONTRACT. This Agreement will become effective on 5 /1619), 1991 and will continue to be in effect until December 31, 1991, unless otherwise terminated under the provisions of this Agreement. B. OBLIGATIONS OF CONTRACTOR. 1. Regarding CONTRACTOR'S Concessionaire QorT,4 nom . " kip"✓. (a) Beer and Wine Service. CONTRACTOR agrees to arrange for the service of beer and wine at the Golf Course food stand. (b) Hours of Operation. The service of beer and wine will be provided during normal business hours of the Golf Course. Service during special events held will be determined by mutual agreement between CONTRACTOR and CORPORATION. [CC.D1/BA] 1 (c) Duties. (i) CONTRACTOR shall be responsible for obtaining and maintaining, at CONTRACTOR'S own expense, all required beer and wine licenses and permits; (ii) CONTRACTOR will remain in compliance with all local, State and Federal laws and ordinances regarding beer and wine service, particularly laws mandated by the A.B.C. and the CI'T'Y OF CUPERTINO'S business license ordinance; (iii) CONTRACTOR will keep a daily accounting of all proceeds from the sale of beer and wine sold under this Agreement and forward such accountings with receipts to CORPORATION on a weekly basis; and (iv) CONTRACTOR will purchase -the beer and wine to be sold under this Agreement; the quantity and brand of beer and wine may from time to time be decided by CORPORATION. 2. Regarding CONTRACTOR'S Management Services: Duties. CONTRACTOR agrees to (i) supervise and schedule the golf shop and office staffs; (ii) manage -the merchandise, inventory orders and pricing; (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 golf shop and by use of -the Golf Course; (v) maintain the rental [CC.D1/BA] 2 equipment; and (vi) manage all operations provided by the golf shop and the Golf Course. 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 CORPORATION. Any complaints about the services provided by CONTRACTOR which are received by CORPORATION will be communicated to CONTRACTOR. If the complaints are deemed valid by Stephen Dowling of CORPORATION 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, .facility equipment and supplies shall be maintained and operated in a safe, neat, clean and orderly manner. CORPORATION 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 and agrees to hold harmless and indemnify CORPORATION for any and all claims arising out of injury, disability or death of CONTRACTOR or any of his [CC.D1/BA] 3 employees or agents incurred while performing services on behalf of CONTRACTOR under this Agreement. CONTRACTOR shall submit to CORPORATION 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. Employee 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. 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 CORPORATION. 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 CORPORATION listed as additional named insured. CONTRACTOR agrees to hold CORPORATION free and harmless from any and all claims arising from any such negligent act or omission or willful act or omission. CONTRACTOR [CC.D1/BA] 4 shall submit to CORPORATION a Certificate of Insurance naming CORPORATION as additional named insured. Such Certificate of Insurance shall be subject to CORPORATION'S approval. 8. Indemnification and Hold Harmless. CONTRACTOR agrees to indemnify, defend and hold harmless CORPORATION from any and all 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 CORPORATION, its employees or agent. C. OBLIGATIONS OF CORPORATION. 1. Cooperation. CORPORATION agrees to cooperate with CONTRACTOR to accomplish the performance of CONTRACTOR'S responsibilities under this Agreement. 2. Compensation. CORPORATION will pay to CONTRACTOR a flat fee in the amount of $32,926.20, payable as follows: (a) the sum of $27,775.20 will be payable twice a month commencing 4 3 91 and ending December 31, 1991. Such payments to be made in equal installments based upon the time period as set herein; and (b) -the remaining $5,151.00 will be payable in two equal installments. The first installment of $2,575.50 will be paid June 1, 1991 and the second installment of $2,575.50 will be paid on September 1, 1991. [CC.D1/BA] 5 Additionally, CORPORATION will reimburse CONTRACTOR for (i) the cost of CONTRACTOR'S liability insurance; and (ii) the cost of all beer and wine purchased for sale under this Agreement; such reimbursement will be made immediately after the receipts of -these purchases have been provided to CORPORATION. CORPORATION will also pay CONTRACTOR a 10% commission on golf shop merchandise sold. These commission payments will be made in June, September and December subsequent to the receipt by CORPORATION of the accounting setting forth the sale of said merchandise. 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 thirty (30) days written notice to the other party. Unless otherwise terminated in accordance with the terms of this Agreement, this Agreement shall continue in force [CC.D1/BA] 6 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: TO CONTRACTOR: Jeff Piserchio 189 Saratoga Avenue Santa Clara, CA 95050 TO CORPORATION: Steven Dowling The Cupertino Public Facilities Corporation P.O. Box 580 Cupertino, CA 95015 2. Entire Agreement. This Agreement constitutes -the entire Agreement of the parties and supersedes any and 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 CORPORA`1'ION, which consent shall not be unreasonably withheld. 4. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction [CC.D1/BA] 7 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 May ICo , 1991. THE CUPERTINO PUBLIC FACILITIES CORPORATION, "CORPORATION", a municipal corporation By: Attested by: H,-r-ev-�h.y _Cor_ne1.-i-u-s, Gei-ty-_Cl-e=r-k 7c7"0 rN P, JEFF PISERCHIO, "CONTR,ACTOR", an individual By: erAt-wilsercizio APPROVED AS TO FORM: City Attorney [CC.D1/BA1 8 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, 1992 and will continue to be in effect until June 30, 1994, 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 all 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 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; (iii) be responsible for all local, state, and federal taxes with regard to the golf merchandise; and (iv) purchase from the CITY all current inventory of merchandise at the Golf Shop at the prices established by invoices; for those items without an invoice, price to be mutually agreed upon. (b) Driving 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. ,,,2 /—Z. 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 Fourteen Hundred Dollars ($1400) every two weeks commencing July 1, 1992 and ending June 30, 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: 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 4 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 all 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 all sources during the preceding calendar month. (b) Commencing July 1, 1992, 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. Kl ,2�— V (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 daily accounting of all proceeds generated from the sale of snacks and forward such accountings on a monthly basis to the CITY; (iv) be responsible for all local, State and Federal taxes with regard to the golf merchandise; (v) comply with all Health Department regulations regarding the sale of food and beverage items; and (vi) return all existing inventories of snack items to Blackberry Farm picnic grounds. 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 Dowling, 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. Employee 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 ,2%-3 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. 5 %— � IN WITNESS WHEREOF, this AGREEMENT is dated 1992. CITY OF CUPERTINO APPROVED AS TO FORM: �oflr�r gy Zttorney Rev. 7/01/92 By: Attested by: Dorothy Cor elius City Clerk JEFF PISERCHIO, "CONTRACTOR", an individual i By: % Jeff PWsghio re Act 4ft. G-zo • 6!®40.7Gj • NO -r -M r- cC&6=0 -t3(01400 A% -&%4U ►L.%.* -e • PAqMEoT A9 P61t glrn�,� 10300 Torre Avenue Cupertino, CA 95014 (408) 252-4505 Agenda Item Number Summary Agenda Date July 6, 1992 SUBJECT AND ISSUE Contract with Blackberry Farm Golf Course Pro Jeff Piserchio. BACKGROUND This contract is a renewal of the existing agreement we have with Jeff Piserchio who operates the Blackberry Farm Golf Course on a contractual basis for the City of Cupertino. Mr. Piserchio will continue to operate the course on a flat fee basis with all revenues coming to the City. The only change in the agreement is that the golf merchandise will now be owned by Mr. Piserchio with 15% of gross receipts coming back to the City. Looking over the last three years of experience, this arrangement should have at least a neutral effect on City revenues and indeed over time may increase City revenues. The agreement is for a two year period. STAFF RECOMMENDATION City Council authorize a resolution executing the contract with Blackberry Farm Golf Course Pro Jeff Piserchio. SUBMITTED BY Stephen. Dowling Director of Parks and Recreatio APPROVBD FO,R SUBMISSION TO CITY COUNCIL Donald D. Br City Manager RESOLUTION NO. 8704 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF CONTRACT WITH BLACKBERRY FARM GOLF COURSE PRO JEFF PISERCHIO WHEREAS, there has been presented to the City Council an agreement between the City of Cupertino and Jeff Piserchio setting forth the terms and conditions for concessionaire and management services at Blackberry Farm Golf Course; and WHEREAS, said agreement has been reviewed and approved by the Director of Parks and Recreation and the City Attorney. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned agreement and authorizes the City Manger 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 6th day of July , 1992, by the following vote: Vote Members of the Ci___yt Council AYES: Dean, Goldman, Szabo, Sorensen NOES: None ABSENT: Koppel ABSTAIN: None ATTEST: /s/ Dorothy Cornelius City Clerk APPROVED: /s/ Lauralee Sorensen Mayor, City of Cupertino RESOLUTION NO. 9116 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING RENEWAL OF CONTRACT WITH BLACKBERRY FARM GOLF PRO JEFF PISERCHIO WHEREAS, there has been presented to the City Council a contract between the City of Cupertino and Jeff Piserchio providing for his services as golf professional at Blackberry Farm Golf Course; and WHEREAS, the terms, conditions and provisions of the contract 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 contract and authorizes the Mayor and 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 loth day of June , 1994 by the following vote: Vote Members -Qf the i Council AYES: Bautista, Burnett, Sorensen, Dean NOES: None ABSENT: Koppel ABSTAIN: None ATTEST: APPROVED: /s/ Kim Marie Smith City Clerk reso1 uti\res9116. doc /s/ Wally Dean Mayor, City of Cupertino 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, 1994 and will continue to be in effect until June 30, 1996, 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 all 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 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) Driving 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 daily accounting of all proceeds generated from the sale of snacks and forward such accountings 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 Dowling, 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. Employee 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. 0a 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 all 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 all sources during the preceding calendar month. (b) Commencing July 1, 1994, 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. 3 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 Fourteen Hundred Forty Two Dollars ($1442) every two weeks commencing July 1, 1994 and ending June 30, 1995, and Fouteen Hundred Eighty Six Dollars ($1486) every two weeks commencing July 1, 1995, and ending June 30, 1996, 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 OFAGREEMENT. 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 parry. 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: E 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 unpaired 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. 5 IN WITNESS WHEREOF, this AGREEMENT is dated 1 , 1994 APPROVED AS TO Attorney June 16, 1994 CITY OF CUPERTINO Attested by: Kin -i Smith City Clerk JEFF PISERCHIO, "CONTRACTOR", an individual , By: lJgiserchio 0