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HomeMy WebLinkAboutResolution - 1309 - Agreement - John J Mcclure - Concession Rights, Meadowbrook Golf Course - 01/27/1983RESOLUTION 1309 - 1/27/83 N I' JS: cm. RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of said City a Golf Professional Agreement between the City of Lubbock and John J. McClure granting concession rights at the Meadowbrook Municipal Golf Course, which Agreement, attached herewi2nutes shall be spread upon the minutes of the Council and as spread upon the of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 27th day of January , 1983. ALAN HENRY, Mayor Pro ATTEST: Evelyn Gaffga, City Secretary -Treasurer APPROVED AS TO CONTENT: QP (� (Bob Cass, Assistant City Manager (APPROVED AS TO FORM: I — �' j&', Jo Sherwin, Assistant City Attorney RESOLUTION 1309 - 1/27/83 f�!+Y SECRETARY- T RFAbl�;",4,R GOLF PROFESSIONAL AGREEMENT THE STATE OF TEXAS § COUNTY OF LUBBOCK § This agreement entered into this day between the CITY OF LUBBOCK, hereinafter called "CITY" and JOHN J. McCLURE, herein- after called "PROFESSIONAL", to provide for services to be per- formed and compensation to be paid for the management and golf professional duties rendered at Meadowbrook Municipal Golf Course owned and operated by the City of Lubbock. WITNESSETH: WHEREAS, the PROFESSIONAL has been employed by the CITY in the capacity of golf course manager and golf professional for Meadowbrook Municipal Golf Course at an annual salary equal to $16,848.00 plus .5% (k of 1%) of total green fees and memberships collected during the immediately preceding fiscal year of the CITY, during which the PROFESSIONAL is continuously employed in said capacity; such annual increment equal to .5% Q of 1%) of total green fees and memberships collected during the immediately preceding fiscal year of the CITY to be paid one -twelfth (1/12) monthly, beginning January 1, 1983, and the total .5% (k of 1%) for the fiscal year 1985-86 shall be paid in a lump sum on January 1st following the termination of this Golf Professional Agreement. In addition to such salary the CITY has agreed to pay annually a sum, not to exceed $2,400.00 to the Professional Golfer's Association as contribution to its Pension Plan on behalf of the PROFESSIONAL and such assistant golf professional as may be designated by the PROFESSIONAL and a car allowance of $360.00 annually to be paid to the PROFESSIONAL in equal install- ments each City pay period. The CITY and the PROFESSIONAL have agreed that the salary to be paid to the PROFESSIONAL shall be paid in the same manner as other City employees, that the PRO- FESSIONAL shall be entitled to the same benefits as other City employees except and excluding cost of living raises, that the PROFESSIONAL shall be bound by the same regulations as other City employees; and that the following agreement shall not be in- terpreted so as to grant to the PROFESSIONAL any rights under this contract that are contrary to the City Charter, City Code or City Regulations, in particular, that this employment shall not be for a stated period of time. The PROFESSIONAL shall have responsibility and authority over the golf course as the manager and shall perform all duties assigned or necessary to its proper operation including, but not limited to the planning, organiza- tion, and supervision of personnel in the maintenance and operation of the course; the inspection of the course and suggestions for changes to improve playing conditions; and the inspection of maintenance and construction work. These tasks shall be performed to the satisfaction of the City Manager or his designated repre- sentative. WHEREAS, the CITY and the PROFESSIONAL desire to enter into this agreement setting out the responsibilities and division of income received from use of the golf course and its facilities and the services performed by the PROFESSIONAL as an independent contractor; NOW THEREFORE, the CITY and the PROFESSIONAL do hereby mutually agree to the following terms and conditions. 1. This agreement is separate and apart from the employment of the PROFESSIONAL by the CITY, but the compensation received thereby is considered in the payment for the services herein. 2. This agreement shall continue for a period of forty- five (45) months from January 1, 1983 until September 30, 1986, unless terminated by agreement of the parties hereto, failure of performance by either party or the termination of employment of the PROFESSIONAL before the full term of this agreement. 3. The PROFESSIONAL shall keep adequate books of accounts and records of all operations at Meadowbrook including the activities and operations conducted by the PROFESSIONAL pursuant to the rights and privileges granted in Section 4 of this agreement. All books and accounts relating only to green fees, memberships, lease of golf lockers, lease of barber shop or any other City owned concessions under the management of the PROFESSIONAL pursuant to his employment as golf course manager shall be open, at all reasonable times, to inspection by representatives of the City Manager or the Finance Director of the City and shall, at the option of the CITY, be subject to an annual audit by the internal auditor of the CITY and/or its independent auditor. The PROFESSIONAL shall furnish an annual certification by the PRO- FESSIONAL'S auditor, of the number of automotive golf cars owned by the PROFESSIONAL or used in connection with the concession rights hereinafter granted. In addition, the PROFESSIONAL shall furnish to the CITY each year financial statements prepared by an independent Certified Public Accountant; such financial statements shall include an income statement showing a comparison of revenues to expenses, a balance sheet as of the end of the fiscal year of the PROFESSIONAL, and a statement of change in the financial position from year to year in the concessions operated by the PROFESSIONAL pursuant to rights and privileges granted herein. 4. The CITY hereby grants to the PROFESSIONAL concession rights and privileges to operate food concessions, a pro shop, and a golf driving range; to provide repair and storage of golf equipment and rental of golf carts, golf cars and golf equipment; and to give golf instructions; all of which activities are to be conducted at the Meadowbrook Municipal Golf Course owned and operated by the City of Lubbock. The concession rights and privileges herein granted for the operation of food concessions shall be subject to the special conditions set forth in Exhibit "A" attached hereto and made a part hereof for the purposes specified. Any other golf related concession or service that the PROFESSIONAL may -wish -to -install at his.cost or. -he may wish to provide which is not in competition with the concessions and services from which the CITY receives income as provided in this contract shall be subject to negotiation between the CITY and the PROFESSIONAL. 5. The CITY retains and shall receive the income from green fees and memberships, lease of golf lockers and lease of the barber shop. The PROFESSIONAL shall not supervise directly the barber shop, but he shall, in his capacity as manager of the golf course, regularly inspect these leased facilities and report any violation of leases or objectionable activities to the CITY. 6. The PROFESSIONAL shall retain 100% of revenues from the concession rights and privileges granted herein subject to the obligation of the PROFESSIONAL to make such payments to the CITY as hereinafter provided. 7. For the privileges and concessions granted herein the PROFESSIONAL shall pay to the CITY the sum of $28,500.00 per year, paid in arrears in equal monthly payments on the 20th day of each month, such sum payable by the PROFESSIONAL shall be adjusted each year beginning January 1, 1984, and on each suc- ceeding January lst throughout the term of this agreement by increasing or decreasing the amount in direct proportion to the fluctuation in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index. For the purpose of computing all such adjustments, the Bureau of Labor Consumer Price Index as of January 1, 1983, shall be construed as the base period. In addition to such sum, PROFESSIONAL shall pay to CITY annually $1,000.00 for each increment of five automotive golf cars over the present fleet of ninety cars. Such $1,000.00 shall be .pro rated on a monthly basis from the time such cars are delivered to the Meadowbrook Municipal Golf Course. The 12 months period on which accounts and payments are based shall be the fiscal year of the CITY. 8. The PROFESSIONAL agrees that as soon as possible after the execution of this agreement he will purchase at his own cost a mobile concession vehicle to be used to provide food service to golfers on the golf course. 9. The PROFESSIONAL shall prepare and submit a budget for the maintenance of said golf course in accordance with the CITY'S standard budgeting procedures and shall oversee such maintenance so as to achieve the best maintenance possible with available funds and to maintain said golf course in a manner acceptable to the CITY. The Director of Parks and Recreation will inspect the golf course monthly and will provide a monthly report to the City Manager or his designated representative. Said monthly report will include a description of the general condition of the golf course listing of any problems related to the maintenance of the golf course, and recommendations for improving the condition of the golf course. It is agreed and understood that no golf course maintenance worker employed by the CITY shall be utilized in the furtherance of any of the concession activities assigned to the PROFESSIONAL during any period of time for which such worker is being compensated by the CITY to perform services for the CITY, unless an emergency situation exists and prior approval has been given by the CITY. 10. The PROFESSIONAL shall operate in a safe condition, at his own expense, any area used for his concession operations and shall hold the CITY harmless from any liability that might arise from the operation of such concessions whether contractual or arising from any accident occurring in the performance of his concession, from the use by any patron or visitor to the PRO- FESSIONAL'S concession or from any employment relationship or activity of any employee he may employ or any liability incurred or asserted by any service or trades person doing business with such concession. The PROFESSIONAL shall maintain insurance in a sum not less than $100,000.00 per person and $300,000.00 per accident naming the CITY as an insured party. The CITY shall not hold the PROFESSIONAL liable, in his capacity as a concession operator, for any liability incurred by accidents away from the concession or instruction area unless such accident occurred in the course of concession or instruction activity. 11. Upon termination of this agreement the PROFESSIONAL may remove all concession wares, goods and equipment which he owns or has on consignment along with all equipment, display cases and .fixtures which are not permanently attached to the premises. The premises shall be restored in good order acceptable to the CITY, normal wear and depreciation excepted, upon removal of such goods and equipment. 12. At the expiration of.this agreement for the services of the PROFESSIONAL, the City of Lubbock agrees to recommend to the successor that he/she purchase the inventory.of merchandise, golf equipment, fixtures, and automotive golf cars owned by the PRO- FESSIONAL, upon the following formula: A. All inventory of merchandise, golf equipment, and fix- tures shall be at invoice cost or depreciated value, whichever is less. Said depreciated value, if not agreed upon by the parties involved, shall be determined by each party securing two appraisals of the property in dispute, from two golf professionals, and the average of the four appraisals shall be the cost there- of to the successor. B. All automotive golf cars and parts inventory shall be the average of the three appraisals secured by the parties, from three golf car manufacturers represen- tatives, one of which shall be the manufacturer of the majority of the golf cars involved, and the other two representatives may be selected by the successor. C. If, at the termination of this agreement. either by expiration of the term hereof or otherwise, the CITY elects to operate on its own behalf the concessions operated by the PROFESSIONAL pursuant to the rights granted herein, the CITY will enter into good faith negotiations with the PROFESSIONAL for the purchase of inventory of merchandise, golf equipment, fixtures, automatic golf cars, or other property belonging to the PROFESSIONAL, and used in conjunction.with the rights and privileges herein granted. Such decision and settlement of the negotiation shall be determined and completed twelve (12) months prior to scheduled ter- mination of this agreement. 13. This contract may not be assigned in any way without the prior written consent of the CITY, provided however, that the PROFESSIONAL may assign or sub -lease the operation of the food concessions without consent of the CITY. Any such assignee or sub -lessee shall be bound by the special conditions set forth in Exhibit "A". 14. Written notices to be given under the terms of this contract shall be by Certified Mail, Return Receipt Requested, to each party at the following addresses: City of Lubbock Mr. John McClure Attn.: City Manager P.O. Box 1394 P.O. Box 2000 Lubbock, Texas 79408 Lubbock, Texas 79457 Notice of termination by reason of failure of performance or termination of employment of the PROFESSIONAL shall be given to the other party with the date of termination to be 30 days from date of notice. EXECUTED this 27th day of January ,198 3. ATTEST: Evelyn ga, Ci y retary- Treasurer 7 APPROVED AS TO FORM: 'Q__O�ol , "_ Jo#n Sherwin, Assistant City Attorney APPROVED AS TO CONTENT: &5? &S B—ob Cass, Assistant City anager CITY OF LUBBOCK AL NRY, ayor Pr' em J H J. Mc URE EXHIBIT "A" This instrument hereby incorporates the foregoing Golf Pro- fessional Agreement between John J. McClure, hereinafter called PROFESSIONAL, and the CITY OF LUBBOCK, hereinafter called "CITY," and makes such Golf Professional Agreement a part hereof for every purpose. The PROFESSIONAL and the CITY do hereby agree that the operation of the food concession granted to the PROFESSIONAL pursuant to the terms of said Golf Professional Agreement shall be conducted according to the following special provisions and con- ditions and that any assignment or sublease of said food concession shall bind the assignee or sublessee to such provisions and con- ditions. Special Provisions and Conditions 1. The PROFESSIONAL and any assignee or sublessee of the PROFESSIONAL of the food concession rights on the Meadowbrook Municipal Golf Course shall hereinafter be referred to as "CON- CESSIONER." 2. CONCESSIONER shall. operate said food concession in com- pliance with any and all applicable laws, ordinances, rules and regulations pertaining to the Meadowbrook Municipal Golf Course hereinafter called "GOLF COURSE" or to the operation of a food service business. 3. CONCESSIONER shall have the exclusive right to conduct, operate, and maintain of food concession within the GOLF COURSE during the term of the Golf Professional Agreement or any lesser term that may be agreed upon between the PROFESSIONAL and his assignee or sublessee. 4. The CONCESSIONER shall cook, prepare, serve and sell in a sanitary manner, foods and beverages of first quality to the patrons of the GOLF COURSE, the general public, and others; such foods and services shall be provided to such persons at prices comparable for like quality foods prevailing in the City of Lubbock; such foods and services shall be provided during hours of operation approved by the Golf Course Manager, as meeting the reasonable needs of the users of the GOLF COURSE. The CONCESSIONER shall provide the services contemplated herein in a courteous and efficient manner so as to reflect credit upon his operations and the operations of the GOLF COURSE. 5. The CONCESSIONER shall not make, permit, or suffer any additions, improvements or alterations to the GOLF COURSE or the Clubhouse located thereon which constitute any major structural change or changes without prior written consent of the CITY, and any such additions, improvements or alterations made with the consent of the CITY shall be solely at the expense of the CON- CESSIONER and unless such consent provides specifically that title to the addition or improvement so made shall vest in the CONCES- SIONER, title thereto shall, at all times, remain in the CITYand such additions or improvements shall be subject to all terms and conditions of this instrument. The CONCESSIONER agrees to hold the CITY harmless from mechanic's and materialman's liens arising from any additions, improvements or alterations effected by the CONCESSIONER. The CITY, City Manager, or other designated repre- sentative shall have the right to inspect food concession opera- tion at all reasonable times during the term of this agreement. The CONCESSIONER agrees that it will, at all times during the term of this agreement, maintain in good and serviceable condition all improvements, facilities and equipment used in connection with said food concession, ordinary wear and tear excepted, such maintenance to be the sole responsibility and obligation of the CONCESSIONER. 6. Any property of the CITY, or for which the CITY may be responsible, that is damaged or destroyed incident to the exercise of the privilege of operating a food concession shall be properly repaired or replaced by the CONCESSIONER to the satisfaction of the CITY and its authorized representative, or in lieu of such repair or replacement the CONCESSIONER shall, if so required by the CITY, pay to the CITY money in any amount deemed sufficient by the governing body of the CITY to compensate for the loss sustained by the CITY by reason of the loss of, damage to, or destruction of such property. 7. CONCESSIONER agrees to indemnify, defend and forever save the CITY, their authorized agents, representatives and em- ployees, harmless from and against any and all penalties, liability, annoyances, or loss resulting from claims or court action of any nature arising directly or indirectly out of acts or omissions of the CONCESSIONER, his agents, servants, guests, employees or other business visitors under this agreement. 8. Prior to commencing the operation of the food concession, the CONCESSIONER shall procure and carry with insurers, authorized to do business in the State of Texas and satisfactory to the CITY, and at CONCESSIONER'S expense, insurance in the form and amount sufficient as determined by the CITY, together with such other forms of insurance necessarily required by the CITY. REQUIRED INSURANCE: Public Liability insurance to include product liability which specifically covers the consumption or use of food or goods on or away from the premises in the amount of $5,000.00 for each individual and $10,000.00 for each incident; Property Damage Insurance in the amount of $5,000.00; the CON- CESSIONER shall keep the said property so insured, free of cost to the CITY, during the term of this agreement. 9. The CITY shall provide heat, electricity, gas and water utility services for the Clubhouse located on the GOLF COURSE. 10. Prior to any assignment or sublease of the food con- cession, a condition survey and inventory of the improvements, facilities and equipment located in said Clubhouse shall be made by the Golf Course Clubhouse Manager for the CITY and a represen- tative of such assignee or sublessee. Said survey shall be attached hereto and become a part hereof as fully as if originally incorporated herein. 11. CONCESSIONER agrees to obtain and pay for all licenses, permits, approvals, fees and similar authorizations or charges required under Federal, State or Local laws or regulations insofar as they are necessary to exercise the privileges extended to CONCESSIONER for the operation of a food concession on the GOLF COURSE. 12. CONCESSIONER agrees to, at all times, at his own ex- pense, keep the premises neat, clean, attractive, safe and orderly, free of waste, refuse and debris and shall provide_complete and proper arrangement for the sanitary handling and disposal of . trash, garbage and other refuse caused as a result of its activities at the GOLF COURSE. It is specifically understood and agreed between the parties hereto that the CITY will maintain the ex- terior walls, roof, heating and air conditioning equipment of the Clubhouse, all other maintenance including painting and redecora- tion shall be performed by the CONCESSIONER. 13. That on or before the expiration of the term of the Golf Professional Agreement or any assignment or sublease of the food concession rights granted therein or upon termination of such Agreement,.assignment, or sublease prior to the expiration of said term, CONCESSIONER shall vacate said Clubhouse, remove all pro- perty of the CONCESSIONER and restore the improvements, facilities and equipment included therein to as good condition on said date of expiration or termination as when received, ordinary wear and tear excepted. If, however, the food concession rights or any assignment or sublease thereof is revoked, the CONCESSIONER shall vacate the premises, remove said property and restore the improve- ments, facilities and equipment included herein as aforesaid within such times as the CITY may reasonably designate. In either event, if the CONCESSIONER shall fail or neglect to remove said property and so restore the improvements, facilities and equipment included herein, then at the option of the CITY said property shall either become the property of the CITY without compensation therefor or the CITY may cause the property to be removed, the improvements, facilities and equipment included herein to be so restored at the expense of the CONCESSIONER and no claim for damages against the CITY or its officers, agents, or employees shall be created on account of such removal and/or restoration. 14. CONCESSIONER agrees that the CITY shall have and is hereby given a lien on all property of any nature placed in or upon or used in connection with the businesses and operations herein authorized, to secure the payment of all sums of money that may be due or become due the CITY. CONCESSIONER further agrees that upon any termination hereof, that none of said property shall be removed from the premises until all accounts with the CITY are paid in full and all property belonging to the CITY shall be returned to the CITY in as good condition as when received, reasonable wear and tear excepted. 15. The CONCESSIONER agrees in the exercise of said con- cession rights to comply with and give all stipulations and repre- sentations required by the CITY and all other applicable laws, and not to discriminate against any employee or applicant for em- ployment because of race, creed, color or racial origin. 16. The CONCESSIONER warrants that he has not employed any person employed by the CITY to solicit or secure this lease upon any agreement for a commission, percentage, brokerage or contin- gent fee. 17. The failure of the CITY or the Golf Course Clubhouse Manager to insist in any one or more instances upon performance of any of the terms or conditions of this agreement shall not be construed as a waiver or relinquishment of the future performance of any such term or conditions but the CONCESSIONER'S obligation with respect to such future performance shall continue in full force and effect.