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HomeMy WebLinkAbout37-Parks & Recreation crfV OF SAN BERti .RDINo4!~EQUEST [ lR COUNCIL ACTION From: Annie F. Ramos, Director Subject: RESOLUTION AUTHORIZING AN AGREEMENT WITH BRIAN WINKING AND JAMES A. CRAMER Dept: Parks, Recreation & Community Services RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK. Date: December 20, 1989 Synopsis of Previous Council action: October 1987 - Council adopted resolution cancelling agreement for pro shoo operations. r.";:,':!. ;;::::: f"'t'I 'C:. j;:q '.:::-: ('M'~ "',,; 1::... Co) ".:":"~ ':':;'. ""Tl "'I") ...."..{ Recommended motion: Adopt the Resolution. Contact person: John Kramer Phone: 5031 2 Supporting data auached: Staff Report, Agreement. Ward: FUNDING REQUIREMENTS: Amount: N/A Source: (ACCT. NO.) (ACCT. DESCRIPTION) Finance: Council Notes: , It ""Il:~ Agenda Item No. 3 7 CITY OF SAN BERt... .RDINO - REQUEST l lR COUNCIL ACTION RESOLUTION AUTHORIZING AN AGREEMENT STAFF REPORT WITH BRIAN WINKING AND JAMES A. CRAMER RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK. The Tennis Pro Shop at Perris Hill Park has not been operated since the retirement of the previous operator on October 1, 1987. There has been no interest in its operation since its closure. The previous operator generated minimal revenue, the majority coming from lessons and not merchandise or food sales or service. The department has since engaged in direct sponsorship of tennis lessons at a much greater return for the City (30% versus 5%), making the pro shop operations potential for profitability even less. The department was recently approached with a proposal to operate the facility for merchandise and food sales, and racket restringing service. The department with the assistance of the Purchasing Department negotiated the conditions of the agreement with the parties involved. The agreement will provide a return to the City of fifteen percent (15%) of gross revenues. While total annual revenue to the City is anticipated to be minimal (estimated under $500), the operation of the pro shop to provide merchandise, refreshments or racket restringing service to the tennis patrons is highly desireable. The negotiated agreement was utilized as an advantage to the City to avoid the costs associated with the bid procedure and guaranteeing the highest possible return. The parties to the agreement have concurred with the proposed conditions. Approval is recommended. December 20, 1989 75-0264 Regarding our meeting of December 13, 1989 with representa- tives of the Purchasing Department and the Parks, Recreation and Community services Department, we have been advised and understand the conditions of the proposed lease agreement for perris Hill Tennis Pro Shop and find them acceptable. Print Name nrio~ v,); W\k,'~,) Signed ~ l~ftI'rlA Date J 2-/IY ,..., ::::~~ Print Name "'t. 'i ;'" (" t'o..lf\ e .,. City ~tle 12/ 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 RESOLUTION NO. 3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH BRIAN WINKING AND JAMES A. CRAMER 4 RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK. 5 6 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is 8 9 hereby authorized and directed to execute on behalf of said City an agreement with Brian Winking and James A. Cramer relating to the operation of a Tennis Pro Shop at Perris Hill Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization to execute the above- referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1990, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ESTRADA 23 REILLY FLORES 24 MAUDSLEY MINOR 25 POPE-LUDLAM MILLER 26 27 28 Ci.+:y Clerk DAB/ses January 3, 1990 1 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH BRIAN WINKIN AND JAMES A. CRAMER 3 RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK. 4 5 6 The foregoing resolution is hereby approved this day of , 1990. 7 8 W. R. Holcomb, Mayor City of San Bernardino 9 Approved as to 10 form and legal content: 11 JAMES F. PENMAN, City Attorney 12 /) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /j By: v~9. /j~~-...... r;. '--/ DAB/ses January 3, 1990 1 AGREEMENT 2 3 THIS AGREEMENT is entered into as of this 4 day of 1990, by and between the CITY OF SAN 5 BERNARDINO, a municipal corporation, and a Charter City referred 6 to as "City":, and James A. Cramer and Brian Winking, 3035 Casa 7 Lorna, San Bernardino, California 92404 referred to as "Licensee". 8 City and Licensee agree as follows: 9 1. Licensee shall operate the Tennis Pro Shop located at 10 Perris Hill Park, 997 Highland Avenue, San Bernardino, 11 California, commencing upon the effective date of this agreement, 12 and continuing for a period of one year thereafter, and shall pay 13 to City fifteen percent of the gross sales receipts from the 14 Tennis Pro Shop and refreshment services, monthly, on or before 15 the tenth day of the month following the calendar month for which 16 concession fees are payable. 17 2. The specifications and provisions relating to the 18 Tennis Pro Shop facility at Perris Hill Park are attached hereto 19 and incorporated herein by reference as fully as though set forth 21 20 at length. The parties hereto agree that each shall be bound by each and all of the specifications set forth herein. The right 23 22 granted herein is exclusive unless otherwise stated herein. Licensee shall: 3. Pay for and obtain all licenses and 24 permits necessary for the operations granted; comply with all 25 State, County or City laws or ordinances pertaining to the 26 operation of a concession; and generally provide refreshment and 27 services as needed. 28 DAB/ses January 3, 1990 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 4. PREMISES: 2 The premises to be licensed include the Tennis Pro Shop and 3 spectator areas of Perris Hill Tennis Courts. Licensee shall be 4 permitted to use vendors in the spectator seating areas. 5 5. OPERATING RESPONSIBILITIES: 6 In the event Licensee fails to perform the actions necessary to 7 comply with the following provisions, the City may immediately 8 exercise option under default provisions of this Agreement. 9 CLEANlINESS: Licensee shall keep the licensed A. premises and all the spectator areas clean at all times. No offensive refuse matter, any substance constituting an unnecessary, unreasonable fire hazard (or material detrimental to the public health -and safety) shall be permitted or remain thereon, and Licensee shall prevent any such matter or material from being or accumulating upon said premises, and shall immediately clean the spectator areas of all debris caused by exercising qpncession rights. B. CONDUCT: Licensee shall at all times conduct his business in a quiet and orderly manner to the satisfaction of the City. C. DISORDERLY PERSONS: Licensee shall use his best efforts to permit no intoxicated person or persons, profane or indecent language, or boisterous or loud conduct in or about the premises and will call upon the aid of peace officers to assist in maintaining peaceful conditions. Licensee shall not knowingly permit the use or possession of narcotics on the premises. DAB/ses January 3, 1990 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. EMPLOYEES: Licensee shall provide such employees as may be required to render courteous service to the public. E. MERCHANDISE: Soft drinks shall be dispensed or sold in cans or paper cups only, rather than any type of bottle. All merchandise including but not limited to sporting goods, food, drinks, beverages, confections, refreshments, etc., sold or kept for sale by Licensee shall conform to all federal, state and municipal laws, ordinances and regulations in every respect. The handling of all edible merchandise is subject to county, state and local sanitation requirements. The sale of beer, wine or other intoxicating liquors will not be permitted unless authorized under the terms and conditions of the San Bernardino Municipal Code. F. HOURS/DAYS OF OPERATION: Licensee shall keep the concession open during such hours as required by the City to adequately serve public demand. Generally, this will mean during all scheduled uses or Perris Hill Park tennis courts. Any deviation of such operation shall be subject to the prior approval of the City in writing. G. EQUIPMENT, FURNISHINGS AND EXPENDABLES: Any additional equipment and furnishings required for said concession shall be purchased and installed by the Licensee at his own expense. Licensee shall purchase all expendables at his own expense, said expendables to remain his p~rsonal property. Upon termination of this agreement, licensee shall have the right to remove his equipment and DAB/ses January 3, 1990 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 furnishings, excluding improvements, from the premises and shall be allowed a period of thirty (30) days to make such removal; and if not removed within that period, said equipment, furnishings and expendables shall be and become the property of the City. H. MAINTENANCE OF EQUIPMENT: Licensee shall provide all maintenance, repair and service required on all equipment used in the Pro Shop, whether Licensee or City owned. Insofar as sanitation and appearance of the Pro Shop are involved, the City may direct Licensee to perform necessary repairs and maintenance to Licensee-Owned equipment. No equipment provided by City shall be removed or replaced by Licensee without the prior written consent of the City and if consent is secured, such removal and/or replacement may be at the expense of the Licensee. The City may direct that certain maintenance or repairs to City-owned and installed equipment be performed where such work is necessary to protect the premises or the provide a clean, attractive and well maintained premises. The City will bear the expense, when the work performed is on premises owned and operated by the City. I. PERSONAL ATTENTION: The Pro Shop manager is the person with whom the City may deal on a daily basis regarding the subject Pro Shop. City prefers that the Pro Shop manager be the Licensee himself (if Licensee is an individual), one of the partners (if Licensee is a partnership) or an officer of the corporation (if Licensee DAB/ses January 3, 1990 4 1 2 3 4 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is a corporation). Any other person selected by Licensee as Pro Shop manager shall be skilled in management of businesses similar to the licensed Pro Shop. The Pro Shop manager shall devote sufficient time and attention to the operation of the Pro Shop and shall promote, increase and develop the business and render every possible service and convenience to the Public. 8 If the Pro Shop manager is not the Licensee, he shall be 9 fully acquainted with Licensee's operations and contract obligations, and authorized by Licensee to act in his behalf and fulfill his obligations in the day-to-day operation of the subject Pro Shop. J. SIGNS AND ADVERTISEMENTS: No signs of any kind shall be displayed unless so approved by the City, which may require removal or refurbishment of any sign previously approved. Licensee shall not permit vendors to display wares inside or outside the building or on said property unless written permission is secured from the City, and such permission shall be subject to revocation at any time. In each facility licensed hereunder, a sign shall be posted in a prominent place stating that the Pro Shop is operated under an agreement issued by the City. K. TAXES: Licensee shall pay all taxes as required by any law, statute or ordinance. The parties to this Agreement understand that this Agreement may create a possessory interest subject to property taxation. If it is determined that such interest does exist and taxes are DAB/ses January 3, 1990 5 1 2 3 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assessed thereon, Licensee agrees to pay such taxes. L. USE OF AREA: Licensee shall not interfere with the Public's enjoyment and use of the Licensed premises or surrounding Public Property for the purposes for which they 5 were intended. He shall not use the licensed premises for 6 any purpose which is not essential to the licensed 7 operations. He shall not rent, sell, lease or offer any 8 space for storing or any article or articles whatsoever 9 within or on the Licensed premises other than his own equipment without the written consent of the City. M. UTILITIES: Licensee shall pay all charges for telephone service necessary to carryon the licensed Pro Shop building operations. The telephone number shall be placed in the name of the Facility and shall not be transferable to any other location. City shall supply water, electrical and gas utility services. N. VENDING MACHINES: Licensee shall first receive written approval from the City before installing or permitting vending machines to be installed. o. Licensee shall cooperate fully with City ACCIDENTS: in the investigation of accidents occurring on the licensed premises. In the event of injury to a patron or customer, licensee shall ensure that the injured person receives prompt and qualified medical attention, and as soon as possible thereafter, he shall submit a city "non-employee accident or illness report". Licensee shall notify the City of any hazardous condition which could lead to injury. DAB/ses January 3, 1990 6 1 2 3 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P. WORK MUST BE SAFE: It shall be the Licensee's responsibility to insure that all materials, equipment and work operations are in conformity with Cal-OSHA standards and that all necessary precautions are undertaken at all 5 work areas which may constitute a hazard to property and/or 6 life. The Licensee agrees to save from harm and to protect 7 the City, its elective and appointive boards, commissions, 8 officers, agents and employees from every claim or demand 9 which may be made by reason of: 1. Any injury to persons or property sustained by the licensee or by any person, firm or corporation employed directly or indirectly by him upon or in connection with his work, however caused. 2. Any injury to person or property sustained by any person, firm or corporation, caused by any act, neglect, defaults or omission of the Licensee or of any person, firm or corpora t i on, di re ct 1 y or indirectly employed by him upon or in connection with his work whether the said injury or damage occurs upon or adjacent to the work. The Licensee at his own cost, expense and risk shall defend any and all actions, suits, or other legal proceedings that may be brought or instituted against the City on any such claim or demand, and payor satisfy the judgement that may be rendered against the City in any such action, suit or legal proceedings or result thereof. 6. RENTAL: DAB/ses January 3, 1990 7 1 The rental provided in paragraph 1 of this Agreement shall be 2 paid to the City on a quarterly basis for the operation during 3 the preceding quarter. The term Gross Sales Receipts as used in 4 paragraph 1 is defined to mean the total amount of the sale price 5 of all sales, or the total charged or received for the 6 performance of any act or service (whether such act or service is 7 done as a part of or in connection with the sale of goods, wares, 8 merchandise or not), for which a charge is made or credit is 9 allowed, including all receipts, cash, credits and property of 10 any kind or nature. The rental payment shall be addressed to: 11 12 13 Director of Finance City Hall 300 North "D" Street San Bernardino, CA 92418 In the event Licensee fails to submit his rental payment by the 14 date it is due, an additional payment of two percent (2%) of the 15 amount due will be charged for each month or fraction thereof 16 said rent remains unpaid. This charge is intended to compensate 17 City for additional accounting and administrative costs. 18 7. IMPROVEMENTS: 19 No improvements may be made by Licensee unless specifically 20 authorized by this agreement, by permit or by written approval of 21 City. In addition, City may, from time to time, make certain 22 improvements which it deems to be advantageous or necessary for 23 the protection of public property. 24 Unless specified in this agreement or in subsequent 25 authorization, improvements made at the sole cost and expense of 26 Licensee are without reduction in rentals or any other financial 27 compensation by the City. 28 DAB/ses January 3, 1990 8 1 8. LIABILITY: 2 The Licensee at Licensee's own cost and expense, shall maintain 3 throughout the term of this agreement: 4 5 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A policy or pOlicies of comprehensive liability A. insurance with a minimum limit of liability of one million 6 dollars ($1,000,000) combined single limit for bodily injury and property damage. 8 AND WHICH MEETS THE FOLLOWING REQUIREMENTS: 9 (1) No deductible clause is permitted. (2) There is to be no aggregate amount. (3) Provides coverage for "all operations of the insured conducted on City property", and contains a description of the work performed by the insured (this may require pOlicy(ies) covering premises occupied, products sold, amusement liability or automobiles used). (4) All signatures must be handwritten on any policy certificate, or endorsement: Rubber stamp signatures are not acceptable. (5) The City of San Bernardino shall be named as an additional insured as respects all operations of the insured. (6) Said policy shall contain a cancellation clause reading in substance as the following approved notice; "It is agreed that this policy shall not be cancelled or the amounts of coverage provided herein reduced until thirty (30) days after the DAB/ses January 3, 1990 9 1 City shall have evidenced by return receipt of 2 Registered Mail". 3 (7) No policy shall be acceptable unless first 4 approved by the City. 5 Worker's Compensation Insurance, when required, with B. 6 statutory limits. 7 9. DEFAULT AND CANCELLATION: 8 In the event that Licensee shall default in the performance or 9 fulfillment of any covenant or condition herein contained, 10 neglects or refuses to pay the consideration or any part thereof 11 within thirty (30) days after the same is due, then City may, at 12 its option without notice or demand upon Licensee or upon any 13 person claiming by, through or under Licensee, immediately cancel 14 and terminate this Agreement and terminate each and every right 15 of Licensee and such person, in which event the Premises shall 16 revert to City, together with any and all improvements placed 17 thereon the City may thereupon enter into and upon the leased 18 premises and repossess the same and expel Licensee and any 19 20 rights and remedies of the City, as herein set forth, are employee, agent or other representative of the Licensee. The 21 cumulative and shall in no way be deemed to limit any of the 22 other provisions of this lease or otherwise to deny to the City 23 any right or remedy at law or in equity which the City may have 24 or assert against Licensee under any law in effect at the date 25 hereof or which may hereafter be enacted or become effective; it 26 being the i~tent hereof that the rights and remedies of the City, 27 as hereinabove set forth, shall supplement and be in addition to 28 DAB/ses January 3, 1990 10 10 1 and in aid of the other provisions of this lease and of any right 2 in addition to the above considerations. This lease may be 3 terminated by mutual consent by giving a thirty (30) day written 4 notice. 5 10. ASSIGNMENT, SUBLEASE: 6 Licensee shall not assign this lease or any interest therein or 7 sublet the leased premises, or any part thereof, or any right or 8 privilege appurtenant to it, or allow any person other than 9 Licensee and his agents and employees to occupy or use the premises without the prior written consent of the City. Any 11 unauthorized assignment or sublease shall be void, and shall 12 terminate this lease at the City's option. 13 11. BUSINESS RECORDS: 14 License shall be required to maintain a method of accounting of 15 the receipts and disbursements in connection with the subject Pro 16 Shop which shall correctly and accurately reflect the gross sales 17 receipts and disbursements received or made by Licensee from the 18 operation and concession. 19 The method of accounting, including bank accounts, established 20 for the subject Pro Shop shall be separate from the accounting 21 system used for any other business operated by Licensee or for 22 23 shall include the keeping of the following documents: recording Licensee's personal financial affairs. 24 25 26 27 28 Such method 1. Regular books of accounting, such as general ledgers. 2. Journals including any supporting and underlying statements, etc. 3. State and Federal income tax returns and sales tax DAB/ses January 3, 1990 11 1 returns and checks and other documents providing 2 payment of sums shown. 3 4. Cash register tapes or receipts (Daily tapes of 4 receipts shall not be separated and shall be retained 5 on continuous rolls, so that from day to day the sales 6 can be identified). 7 Any other accounting records that the City, at its 5. 8 discretion deems necessary for proper reporting of 9 receipts. 10 All documents, books and accounting records shall be open for 11 inspection and reinspection at any reasonable time during the 12 term of the license agreement or permit and for a reasonable 13 period, not to exceed one year, thereafter. In addition, City 14 may from time to time conduct an audit and reaudit of the books 15 and business conducted by Licensee and observe the operation so 16 that accuracy of the above records can be confirmed. If the 17 report of Gross Sales made by Licensee to the City shall be found 18 to be less that the amount of Gross Sales, disclosed by such 19 audit and observation, Licensee shall pay the City within thirty 20 (30) days after billing any additional rentals disclosed by such 21 audit. If discrepancy exceeds two percent (2%) and no reasonable 22 explanation is given for such discrepancy, Licensee shall also 23 pay the cost of the audit. Licensee shall transmit a profit and 24 loss statement and a balance sheet for the licensed operations, 25 prepared in a form acceptable to the City within sixty (60) days 26 of the close of each of Licensee's fiscal or calendar years 27 28 during the term of the license agreement. The profit and loss DAB/ses January 3, 1990 12 1 statement shall set forth an expense account entitled 2 "Compensation to Officers" or an account having some similar 3 title. The amount shown opposite this item shall include all 4 salaries or other compensation for services derived from the 5 licensed operation by Licensee, members of his family, officers 6 of the Licensee's corporation, directors, shareholders, any 7 individual owning stock indirectly and other persons employed by 8 Licensee to manage the operations or supervise Licensee's 9 employees. These salaries or other compensation shall not be 10 indicated in any other expense category. 11 All information obtained in connection with City's inspections of 12 records or audits shall be received and maintained in confidence 13 and shall not be disclosed to anyone not directly connected with 14 the official business of the City. Before beginning operations, 15 Licensee shall contact the Finance Department to arrange for 16 other specific accounting records procedures. 17 12. REGULATIONS, INSPECTION AND DIRECTIVES: 18 LAW AND ORDINANCES: Licensee shall conduct his 19 business in accordance with all laws, ordinances, 20 rules and regulations applicable to such business as 21 set forth by the City, County, State and Federal 22 Government. Authorized City 23 RIGHT OF INSPECTION: 24 representatives', agents and employees shall have the 25 right to enter upon the licensed premises at any and 26 all reasonable time for the purpose of inspection and 27 observation of Licensee's operations. 28 DAB/ses January 3, 1990 13 1 Said inspections may be made by persons identified to Licensee as 2 City employees, supervisors, etc. Inspections may be made for 3 the purpose set forth below; However, the categories specified 4 below shall not be construed to limit the City's right of 5 inspection for any purpose incidental to the rights of the City: 6 A. To determine if the terms an conditions of the 7 agreement are being complied with. 8 B. To observe transactions between Licensee and patrons 9 in order to evaluate the courtesy extended to and 10 method of dealing with the public, the performance and 11 caliber of Licensee's employees, and the methods for 12 recording receipts. 13 The information obtained on these inspections will be used to 14 evaluate Licensee in order to provide a basis for an action by 15 the City for the renewal or denial of renewal of the concessions. 16 13. Licensee shall quit and surrender possession of said 17 premises to the City in as good and usable a condition, subject 18 to normal wear and tear, acceptable to the City, as the same were 19 in at the time of the first occupation thereof by Licensee. 20 14. NOTICES: 21 Notices to be given by each party to this Agreement to the other 22 party shall be in writing and deposited with the United States 23 Postal Service, postage prepaid, and addressed as follows: 24 TO THE CITY: City of San Bernardino 25 300 North "D" Street San Bernardino, CA 92418 26 TO THE LICENSEE: James A. Cramer and Brian Winking 27 3035 Casa Lorna San Bernardino, CA 92404 28 DAB/ses January 3, 1990 14 1 Nothing in this paragraph shall be construed to prohibit the 2 giving of notice by personal service. 3 IN WITNESS WHEREOF, the parties have executed this 4 agreement on the day and year first above written. 5 6 ATTEST: City of San Bernardino 7 8 9 By: W.R. Holcomb, Mayor City of San Bernardino By: City Clerk Approved as to form 10 and legal content: 12 11 JAMES F. PENMAN, City Attorney 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /' By: \ ~/'VY'V;> // IJ ") i. ~ )/JdV, Licensee By: By: DAB/ses January 3, 1990 15