04-065 Jeff PiserchioACCOUNT NO.
CONTRACT AMOUNT _
PURCHASE ORDER NO
AN AGREEMENT BETWEEN 7~E CITY OF CUPERTINO
AND JEFF PL~ERCffiO
FOR CONCESSIONAIRE AND P~IANAGEMENT SERVICES
AT BLACKBERRY FA>Ft1VI 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, 2004 and will continue to be in effect until
June 30, 2006, unless otherwise terminated under the provisions of this Agreement.
B. OBLIGATIONS OF CONTRACTOR.
1. Regardin~CONTRACTOR'S Management Services:
Duties. CONTRACTOR agrees to (i) supervise Crolf Course utilization; (ii) schedule
the golf shop and office staffs: (iii) enforce policies ~;et 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 accountin€; of all proceeds generated by the use of the CTolf
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 acid 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 off- 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 convenie~ice 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, the 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 maybe grounds for the termination of this AGREEMENT.
The concessionaire service, Golf Shop, Driving Range, facility equipment and supplies
shall be mairrtained 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 s~rrvices 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.
6. Employee Status/Independent Cor,~tractor. 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 negligern 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 Harmle:~s. CONTRACTOR agrees to indemnify, defend
and hold harmless the CITY from any and all claim;>, 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, 2004, 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 Manasem~ent Services: For managing and operating the
Golf Course and rental equipment under the teirns of this AGREEMENT, the CITY will pay
CONTRACTOR a fee of One Thousand Nme Hundred Ninety-Five Dollars ($1,995.00) every two
weeks commencing July 1, 2004 and ending June :30, 2005, and Two Thousand Thirty-Five Dollars
($2,035.00) every two weeks commencing July 1, 2005, and ending June 30, 2004, 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 snack concessions.
D. TERNIINATION OF AGREEMENT.
1. Termination for Breach. Should eiither 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 AGREEMENC by giving written notification to the other party.
2. Termination Uaon Notice. Either p;~riy 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 AGRE=EMENT 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 ether 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: Jeffl?iserchio
2634 Heritage Park Circle
San ,lose, CA 95132
TO CITY OF CUPERTINO: Cupertino Parks and Recreation
103C-0 Torre Avenue
Cupertino, CA 95014
Should either party terminate this AGREEMETI'T 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 AGRI'sEMENT 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 AGREEMEN'T'. 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 AGREEMINT is dated --~U~ Z , ~7"
CITY OF
By~
Attested by:.
Kimberly Smit Clerk