00-056 Jeff PiserchioACC OUNT NO.
CONTRACT AMOUNT _
PUR~~HASE ORDER NO.
AN AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND JEFF PISERCHIO
FOR CONCESSIONAIRE AND N[ANAGEMENT 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 C:[TY owned property, on an independent contract
basis.
A. TERM OF CONTRACT.
This Agreement will become effective on July 1, 2000 and will continue to be in effect until
June 30, 2002, unless otherwise terminated under title 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) keel- an accounting of all proceeds generated by the
use of the Golf Course and rental equipment; (v) raintain 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 oi~ 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 ;~ separate cash register for recording sales; and
(iii) be responsible for all local, state, and federal taaces 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 acid 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
forwazd such accountings on a monthly basis to the CITY; (iv) be responsible for all local, State
and Federal taxes with regazd 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 aze received by the CITY will be communicated to CONTRACTOR. If the complaints are
deemed valid by the CITY'S representative, the Director of Pazks and Recreation, and aze 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 yeazs 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.
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6. Employee Status/Independent Colitractor. At all times CONTRACTOR shall be
deemed to be an independent contractor and shall riot 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 c,r 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 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, 2000, 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.
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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 Seventeen Hundred Ninety Dollars ($1790) every two weeks
commencing July 1, 2000 and ending June 30, 2001, and Eighteen Hundred and Forty-Four Dollars
($1844) every two weeks commencing July 1, 2001, and ending June 30, 2002, 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. 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
paty3'•
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:
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TO CONTRACTOR: Jeff I'iserchio
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 team; then the CITY shall purchase from the
CONTRACTOR the existing golf merchandise acid 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 and all agreement;, 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 iulenforceable, the remaining provisions will
nevertheless continue in full force and effect without being impaired or invalidated in any way.
5. Governing Law. This AGREEM]NT will be governed by and construed in
accordance with the laws of the State of California.
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RESOLUTION NO.00-164
A RESOLUTION OF THE CITS' COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT
BETWEEN JEFF PISERCHIO ANI) THE CITY OF CUPERTINO TO
PROVIDE CONCESSIONAIRE ANID MANAGEMENT SERVICES AT
BLACKBERRY FARM GOLF COURSE
WHEREAS, there has been presented to the City Council a proposed contract between
Jeff Piserchio and the City of Cupertino to provide concessionaire and management services at
Blackberry Farm Golf Course; 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 July, 2000, by the follovring vote:
Vote Members of the City Council
AYES: Burnett, Chang, James, Lowenthal„ Statton
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/Kimberly Smith
City Clerk
APP:E~OVED:
/s/Jol;m Statton
Mayer, City of Cupertino