HomeMy WebLinkAboutReso - CC - 074-2003RESOLUTION NO. 74-2003
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
APPROVING AGREEMENT WITH VB GOLF II, LLC, TO OPERATE
THE CITY OF BURLINGAME BURLINGAME GOLF CENTER
RESOLVED, by the City Council of the City of Burlingame:
WHEREAS, in 1999, the City entered into an agreement with VB Golf LLC to operate the
Burlingame Golf Center; and
WHEREAS, that agreement has not been a satisfactory arrangement for operation of the
Golf Center and in January 2003, the City gave notice that it intended to terminate driving range
operations at the Golf Center; and
WHEREAS, VB Golf II, LLC has arranged with VB Golf LLC to negotiate with the City
and come to a new agreement with the City for operation of the Golf Center, while removing VB
Golf LLC from the property,
NOW, THEREFORE, IT IS RESOLVED AND ORDERED:
1. The City Manager is authorized and directed to execute the Agreement for Conduct of
Golf Operations at the Burlingame Golf Center attached as Exhibit A hereto.
2. The Clerk is directed to attest to the signature of the Manager.
YOR
I, DORIS MORTENSEN, Deputy City Clerk of the City of Burlingame, do hereby certify
that the foregoing resolution was introduced at a regular meeting of the City Council held on the 7rh
day of .Tulp 20030, and was adopted thereafter by the following vote:
AYES: COUNCILMEMBERS: BAYLOCK, COFFEY, CALLICAN, JANNEY, O'NAHONY
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
CITY CLERK
AGREEMENT FOR CONDUCT
OF GOLF OPERATIONS AT
THE BURLINGAME GOLF CENTER
THIS AGREEMENT made and entered into as of this 1st day of July, 2003, by and
between the C T'i OF BURLINGAME (hereinafter "City"), a municipal corporation, and VB GOLF ii,
a limited liability corporation, (hereinafter "VB Golf').
WHEREAS, Burlingame Golf Center (hereinafter "BGC") has been constructed on City
property located at 250 Anza Blvd, Burlingame, CA 94010 as generally shown in Exhibit A;
and
WHEREAS, City is willing to allow VB Golf to assume responsibility of operation of BGC
from VB Golf LLC, the previous operator of BGC; and
WHEREAS, VB Golf is willing to perform services in accordance with the terms of this
Agreement,
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and
conditions herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINDEFINITIONS .d INTERPRET ATIFV.1C
ITIONS 1 IVI�V an1U 11 ILI\rl\L IP111V1 J
As used herein, the following words and phrases shall have the meanings set forth below:
1.01 Director
The Director of Parks and Recreation for the City of Burlingame
1.02 Driving Range Area
The area of BGC covered by synthetic grass and surrounded by netting used for hitting
golf balls.
1.03 Golf Activities
Use of the driving range area to hit practice golf balls, use of the short game area to
practice putting and chipping activities, golf lessons in the tee stalls and in the teaching station,
and the sales of golf related merchandise in the pro shop.
1.04 Manager
The City Manager for the City of Burlingame.
1.05 Premises
The portions of BGC including the Driving Range Area, Pro Shop, Teaching Station,
Tee Stalls, Short Game Area and the surrounding pathways.
1.06 Pro Shop
I he bUl 16; ng that houses the II Ont coul rater, restroorns, snack area al ld offices fur BGC.
1.07 Short Game Area
The area of BGC designated for putting and chipping activities.
1.08 Teaching Station
The building located at the east side of the driving range tee stall line used for golf
instruction.
1.09 Tee Stalls
The area with golf mats designated for hitting practice balls to the driving range area.
1.10 Tee Stall Structure
The structures that overhang two sections of tee stalls.
ARTICLE 11
SCOPE OF SERVICES
2.00 Use of Golf Center
The BGC Premises shall be used by VB Golf only for services specified in this
Agreement and for other directly related purposes for which express written approval is
granted by City and for no other purposes by VB Golf.
2.01 Term and Scope of Service
VB Golf shall have the exclusive right, license, privilege, and obligation to operate Golf
lessons and activities at BGC for the period from July 1, 2003, to June 30, 2008. Unless
earlier terminated as outlined in Section 2.10 of this agreement, this Agreement will be
automatically renewed for an additional five-year term on June 30, 2008, unless either party
gives the other party written notice to the contrary at least four (4) months in advance of the
expiration of the then -existing term. Unless earlier terminated, this Agreement will be
automatically renewed for a second additional five-year term on June 30, 2013, unless either
party gives the other party written notice to the contrary at least four (4) months in advance of
the expiration of the then -existing term. Unless earlier terminated, this Agreement will be
automatically renewed for a third additional five-year term on June 30, 2018, unless either
party gives the other party written notice to the contrary at least four (4) months in advance of
the expiration of the then -existing term. Unless earlier terminated, this Agreement will be
automatically renewed for a fourth additional five-year term on June 30, 2023, unless either
party gives the other party written notice to the contrary at least four (4) months in advance of
the expiration of the then -existing term.
If, at least four (4) months prior to the end of any term, the City elects to not renew the
agreement for the sole purpose of making more .money from a golf facility at BGC by receiving
larger annual payments for use of the facility from a private contractor, the City will offer VB
Golf the opportunity to match any bone fide offer presented to the City within thirty (30) days of
City's written notification to VB Golf of the offer. Whether or not the City's choice is based
solely on the purpose of obtaining a larger annual payment shall be entirely within the City's
sole determination, and VB Golf shall not he entitled to any arbitration, grievance, or other
remedy whatsoever should VB Golf not believe that to be the case. In addition, if VB Golf is
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given the opportunity to match an offer, VB Golf shall match the offer made on equal terms and
conditions when compared in relation to length of contract and income to the City without any
reservations or changes of any kind, but can offer financial incentives in addition to but not in
place of those made in the bona fide offer.
The scope of services required of Vis Golf under terms of this Agreement include:
A. Provide and/or maintain all labor, management oversight, merchandise,
equipment, materials, supplies, licenses and permits necessary to operate golf activities as
described in 1.02.
BGC. B. Employ and manage all personnel on the site, including all security for
C. Attend to, or coordinate the timely repair of City owned property on site.
D. Procure all materials, equipment and supplies needed to provide services
under this Agreement.
E. Attend to all other matters necessary or expedient for the efficient
performance of BGC.
F. Conduct no other operations or activities upon or at BGC other than as
expressly permitted pursuant to this Agreement.
G. Provide the following at BGC for the public's enjoyment:
(1) Use of the driving range area to hit practice golf bails. Practices in
the operation of the driving range area by VB Golf that result in practice balls being hit over the
surrounding netting intentionally or accidentally will not be permitted;
(2) Use of the short game area to practice putting and chipping
activities. VB Golf may charge for use of the chipping areas;
(3) Drinks (including water, soft drinks, beer and sports drinks) and
snacks;
(4) Public use of BGC a minimum of eleven (11) hours each day of the
year. BGC may not open for business before 7:00am any day and the driving range area will
not open before 10:00am on Tuesdays to allow for maintenance of the facility and testing of
the landfill site. If inclement weather or other natural or man-made disaster dictates closure of
BGC, VB Golf may do so upon telephone notice to the Director. Lights to the driving range
and short game areas must be turned off and the areas closed each day no later than
10:00pm. Exceptions to this Section are permissible for special events or holidays with the
written permission of the Director at least 72 hours in advance.
(5) A well maintained BGC, including the pro shop, driving range and
short game areas and all supplies, equipment, lighting, flooring associated with the continued
use and appearance of the facility.
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2.02 City's Responsibilities
City shall be obligated to perform only the following:
A. Oversee all terms and conditions of this Agreement;
B. Provide operational electrical, water, sewer and gas connections to the
facility;
C. Provide basic cable television service, computer T-1 line, trash service,
and water;
D. Maintain the poles used to hold driving range netting and driving range
lighting;
E. Maintain the ornamental fencing and the fencing separating BGC from the
Soccer Center;
F. Maintain the tee stall structures;
G. Collect fees and registrations for any group lessons offered by the City's
Parks and Recreation Department. All other fees and monies will be collected directly by VB
Golf;
H. Maintain the integrity of the clay cap of the landfill site.
2.03 Compensation
A. VB Golf agrees to pay City as follows:
For each year of the initial term, $60,000 per year, paid quarterly. For
each following term, the annual payment shall be increased by the percentage change in the
Consumer Price Index - All Urban Consumers/All Items (CPI -U, 1982-84=100) for the San
FraniCiSCO-Oak!a nid-Sanuv.Oe, CA w�etropo!itaiii Area bctvvicei Fcbr uar y 2i�iv3 ai id ti ie FcbrUar�y'
immediately preceding the end of the term. In no event however, shall the rental be less than
the rental paid for the immediately preceding year. Annual payments will remain the same
throughout the life of each term, only be subject to increases as stated above for new terms.
B, Should this Agreement he terminated pursuant to section 2.10 helow
before the end of a whole quarter, VB Golf shall pay City for the full quarter.
C. Payment to the City pursuant to this section shall be made no later than
fifteen (15) days following the last day of each quarter for which payment is being made.
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2.04 General Management of BGC
VB Golf recognizes that its operation hereunder is a service to members of the public
and citizens of the City of Burlingame. VB Golf shall conduct golf activities in a businesslike,
efficient, courteous, and accommodating manner consistent with the quality of comparably
priced golf practice facilities in the Peninsula area. City may make reasonable
recommendations and suggestions to VB Golf to maintain the quality and character of services
offered to the public. VB Golf shall discontinue or remedy any practice that City determines is
inconsistent with a City -owned facility or is inconsistent with golf industry standards.
At n o time shall VB Golf or any of its officers or e [ployees advertise or represent that it
or its activities are affiliated with, approved by, or endorsed by the City. The City's name as a
government agency shall be removed from all advertising and it shall be made clear in all
communications that only the facility is owned by the City and the City has no connection with
the quality or character of the services provided or the persons employed by VB Golf.
2.05 BGC Premises
A. Etc uipment and Improvements
1) VB Golf accepts the Premises in the condition existing when
signing this agreement.
2) City will permit VB Golf to use certain City -owned equipment for
golf activities and facility maintenance. Any such equipment used by VB Golf shall be taken
,.as is" and returned to City at the end of the term hereof. VB Golf shall make repairs to City -
owned equipment and purchase replacement equipmIuent, as necessary. Title to such
replacement equipment shall immediately vest and be vested in City at all times during and
after the term hereof. No later than August 1, 2003, the City and VB Golf shall conduct a
comprehensive inventory of all equipment and facilities at BGC as to condition and ownership.
Each year thereafter, no later than August 1 of each year, the parties shall redo the inventory.
3) VB Golf is responsible for the maintenance of BGC and equipment,
except as expressly stated in Section 2.02 above. However, VB Golf shall make no
refurbishment or alteration to the Premises, whether in whole or in part, nor construct
additional improvements upon the Premises without the prior written approval of Manager. Title
to such improvements shall immediately vest and be vested in City at all times during and after
the term hereof without charge or offset to the City.
4) VB Golf shall not execute any chattel mortgage, conditional bill of
sale, financing statement, lease or security agreement pertaining to any such improvements,
furniture, fixtures, fittings, or equipment in Premises. With prior approval of the City Council,
VB Golf may lease VB Golfs equipment to outside parties so long as this does not affect the
quality of the golf experience of the public at BGC. VB Golf shall be allowed to lease
equipment from outside vendors for the purposes of Golf Activities, maintenance or food
service so long as no liens are placed against the City's property or equipment.
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5) If VB Golf seeks and receives permission to alter the area of the
kitchen or if VB Golf does not staff the kitchen area, VB Golf, at its expense, will create a
space of 100 square feet next to the window adjacent to the soccer field for use for food
preparation and sales by the City and community groups. The Manager must approve plans
for the space to be used by the City. VB Golf possesses no right or privilege to offer food or
drink outside the Premises. VB Golf, or its food subcontractor, may prepare food at BGC for
catered events not at BGC, as long as this practice does not affect the quality of the golf
experience of the public at BGC and VB Golf pays City $50 for each such event.
B. Care in Use of Premises
1) VB Golf shall provide and maintain in its employ sufficient
personnel to perform all work as scheduled and required by this Agreement.
2) To respond to emergencies and other contingencies, VB Golf shall
provide City with the names and telephone numbers of at least two (2) qualified persons who
can be called by City representatives when emergency conditions occur during hours when VB
Golfs normal work force is not present.
3) VB Golf shall use the Premises so that they remain in a clean, safe,
wholesome, and sanitary condition, free of trash or garbage of any kind, and in compliance
with any and all applicable present and future lav✓s, general rules and regulations of any
governmental authority in force now or at anytime during the term of this Agreement relating to
sanitation, public health, safety, or welfare.
4) Except with respect to matters that are the City's responsibilities
under Section 2.02, VB Golf shall remedy without delay any defective, dangemlis, or
unsanitary conditions, or conditions that limit the golf activities. VB Golf shall correct such
situation within 30 days of written notification from City or be in default of this agreement. City
shall make allowances for repairs made in an expeditious manner that may take longer than 30
days to remedy.
5) Inspections of VB Golfs golf activities and BGC by City and VB
Golf will be scheduled quarterly and City shall have the right to make unannounced inspections
at any time. Within 60 days of the commencement of this contract, a date for the first
inspection will be scheduled. During each quarterly inspection, both parties will agree to the
next inspection date.
2.06. VB Golfs Personnel
A. Direct Employees
All of the services specified under this Agreement shall be performed by
VB Golfs direct employees or independent contractors or subcontractors to VB Golf. All
operations and activities whether or not provided by a third party shall be supervised by one or
more active, qualified, competent, and experienced employee(s) of VB Golf, not younger than
21 years of age.
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B. Behavior
VB Golf's personnel, while on duty to perform the operations authorized
hereunder in this Agreement, shall at all times conduct themselves in a businesslike manner --
without rudeness, discourtesy or use of profanity.
C. Service Standard
VB Golf shall at all times maintain a high standard of services to the public
and to the satisfaction of Manager who shall be the sole judge of the adequacy thereof, in
relation to the City's and golf industry standard. Upon written notice by Manager that the
conduct of any of VB Golf's personnel at BGC is detrimental to the best interests of the public
or City, VB Golf shall take appropriate action and furnish evidence satisfactory to Manager of
the timely correction of such deficiency.
D. BGC Contact
The person responsible for administration of this Agreement for VB Golf
shall be Chris Aliaga. This assignment shall not be changed without written consent of the
Manager.
2.07 Staffing
A. VB Golf shall staff its operation with personnel to conduct all operations
authorized hereunder, in sufficient number to meet public demand for prompt, courteous, and
efficient service. VB Golf shall adjust the number of its assigned personnel as may be
appropriate to properly and safely serve the requirements of public and City.
2.08 Permits and Licenses
A. VB Golf shall cause to be maintained in full force and effect throughout the
term of this Agreement any and all applicable permits and business licenses which may be
required by any law, including administrative regulations and local ordinances, for the conduct
of VB Golfs business hereunder. Prion" to the commencement of this Agreement, VB Golf shall
furnish City with copies of all such permits and licenses.
B. Prior to commencement of this Agreement, VB Golf shall provide City with
the following:
(1) Most recent financial statements, including assets, demonstrating VB
Golfs financial capacity to operate BGC;
(2) Experience of VB Golf in operating a golf practice facility;
(3) A irrevocable letter of credit in the amount of two then -current quarterly
payments due from VB Golf;
(4) Waiver of rights and release of all interest in BGC and its Agreement
with the City from VB Golf, LLC., including any and all claims VB Golf, LLC may have for
severance payments, or inventory or equipment purchases, acquisition, installation,
depreciation, or otherwise.
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C. VB Golf has permission to use the BGC Logo for promotional purposes.
2.09 Insurance
VB Golf shall procure and maintain for the duration of this Agreement, insurance against
claims for injuries to persons or damages to property which may arise from or in connection
with the performance of the Agreement by VB Golf, its agents, representatives, employees or
subcontractors. City shall retain the right at any time to review the coverage, form, and
amount of the insurance required hereby. If in the opinion of City's Risk Management official,
the insurance provisions in these requirements do not provide adequate protection for City and
for the public, City may require VB Golf to obtain insurance sufficient in coverage, form and
amount to provide adequate protection. City's requirements shall be reasonable but shall be
imposed to assure protection from and against the kind and extent of risks that exist at the time
a change in insurance is required.
A. Coverage shall be at least as broad as:
1) Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001).
2) Workers' Compensation insurance as required by the State of
California and Employer's Liability Insurance.
3) Insurance Services Office form number CA 0001 (Ed. 11871
Covering Automobile Liability, code 1 (any auto).
4) Employer's Liability Insurance
B. VB Golf shall maintain limits no less than:
1) General Liability: $2,000,000 per occurrence for bodily injury,
personal injury, property damage, food services and product liability. if Commercial Genera!
Liability Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this location or the general aggregate limit shall be
twice the required occurrence limit.
2) Employer's Liability: y: $1,000,000 per accident for bodily injury or
disease.
3) Workers' Compensation: Statutory. In addition, VB Golf shall
require each of its agents, licensees, subcontractors, or suppliers to provide such workers
compensation coverage to their employees coming on the Premises of BGC in connection with
this Agreement.
property damage.
4) Automobile Liability: $2,000,000 per accident for bodily injury and
IL
C. Any deductibles or self-insured retention must be declared to and
approved by City. At the option of City, either; the insurer shall reduce or eliminate such
deductibles or self-insured retention as respects City, its Council Members, officials,
employees, agents and volunteers, or VB Golf shall procure a bond guaranteeing payment of
losses related to investigations, claim administration and defense expenses.
D. All public liability insurance policies required by this Agreement are to
contain, or be endorsed to contain, the following provisions:
2) For any claims related to the performance of VB Golfs duties and
responsibilities under this Agreement, VB Golfs liability insurance coverage shall be primary
insurance as respects City, its Council Members, officials, employees, agents and volunteers.
Any insurance or self-insurance maintained by City, its Council Members, officials, employees,
agents or volunteers shall be excess of VB Golfs insurance and shall not contribute with it.
3) Any failure to comply with reporting or other provisions of the
policies including breaches of warranties shall not affect coverage provided to City, its Council
Members, officials, employees, agents or volunteers.
4) VB Golfs insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurers liability.
5) Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits until after City has been given thirty (30) days prior written notice by
i rfified mail, return receipt requested. However, ten (10) days advance written notice of
cancellation is permitted for non-payment of premium.
E. Insurance is to be placed with insurers with a current A. H. Best's rating of
no less than A -VII. City may waive or alter this requirement, or accept self-insurance in lieu of
any required policy of insurance if, in the sole opinion of City, the interests of City and the
general public are adequately protected.
F. Prior to commencing work under this Agreement, VB Golf shall furnish
City with certificates evidencing coverage required above. Certified copies of required
endorsements must be attached to the provided certificates. All certificates are to be received
and approved by City before work under this Agreement commences. City reserves the right
to require that VB Golf provide complete, certified copies of any policy of insurance offered in
compliance with these specifications. As an alternative to insurance certificates, VB Golfs
insurer may voluntarily provide complete, certified copies of all required insurance policies,
including endorsements, affecting the coverage required by these specifications.
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1) City, its Council Members,
officials, employees, agents and
volunteers
are to
be covered as insureds with respect
to: liability arising out of activities
performed
by or
on behalf of VB Golf; products and
completed operations of VB Golf;
Premises
owned,
occupied or used by VB Golf; or automobiles owned, leased, hired or
borrowed
by VB
Golf. The coverage shall contain no
special limitations on the scope of
protection
afforded to City, its Council Members, officials, employees, agents or volunteers.
2) For any claims related to the performance of VB Golfs duties and
responsibilities under this Agreement, VB Golfs liability insurance coverage shall be primary
insurance as respects City, its Council Members, officials, employees, agents and volunteers.
Any insurance or self-insurance maintained by City, its Council Members, officials, employees,
agents or volunteers shall be excess of VB Golfs insurance and shall not contribute with it.
3) Any failure to comply with reporting or other provisions of the
policies including breaches of warranties shall not affect coverage provided to City, its Council
Members, officials, employees, agents or volunteers.
4) VB Golfs insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurers liability.
5) Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits until after City has been given thirty (30) days prior written notice by
i rfified mail, return receipt requested. However, ten (10) days advance written notice of
cancellation is permitted for non-payment of premium.
E. Insurance is to be placed with insurers with a current A. H. Best's rating of
no less than A -VII. City may waive or alter this requirement, or accept self-insurance in lieu of
any required policy of insurance if, in the sole opinion of City, the interests of City and the
general public are adequately protected.
F. Prior to commencing work under this Agreement, VB Golf shall furnish
City with certificates evidencing coverage required above. Certified copies of required
endorsements must be attached to the provided certificates. All certificates are to be received
and approved by City before work under this Agreement commences. City reserves the right
to require that VB Golf provide complete, certified copies of any policy of insurance offered in
compliance with these specifications. As an alternative to insurance certificates, VB Golfs
insurer may voluntarily provide complete, certified copies of all required insurance policies,
including endorsements, affecting the coverage required by these specifications.
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G. VB Golf shall require each of its subcontractors to obtain and maintain
insurance which is equivalent to or more comprehensive than the insurance required by this
Section.
K City is under no obligation to provide and VB Golf shall not assume that
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the City will provide any Insurance or indemnity of any kind regarding BGC. VB uo.f is solely
responsible for obtaining insurance to cover any and all property that VB Golf may place,
operate, or use at BGC; to obtain insurance coverage for any concerns that VB Golf may have
about loss of use of BGC from whatever cause; and to purchase insurance to replace or repair
any fixtures or facilities that may be damaged at BGC. City will have no liability whatsoever to
VB Golf for a less of use of BGC orb s.ness .n.... -pt,n, ;nvciv,ng BGC from any ^ause
whatsoever, except for an interruption caused by the City's sole, gross negligence as
determined by Dispute Resolution, as outlined in Section 3.20 of this agreement, or a Superior
Court, if Dispute Resolution is unsuccessful.
2.10 Termination of Agreement
A. Except as otherwise provided, if VB Golf defaults in the performance of
any promise, term, condition, or covenant required of it herein, and fails to cure such default, or
fails to take reasonable action, within thirty (30) calendar days following notice thereof from
Manager, this A^yreem�er', shall terminate.
B. Manager may immediately terminate this Agreement, without serving such
notice of default to VB Golf, upon the happening of any of the following events:
1) The failure of VB Golf to maintain in full force and effect all forms of
insurance required hereunder.
2) The failure of VB Golf to cause to remain in full force and effect any
permit or license required hereunder.
3) Any attempt to effect the sale transfer, or assignment by \/R Gnlf of
any right, license, privilege or duty granted to or imposed upon it hereunder, without the prior
approval of the City Council.
4) Upon closure of BGC due to a major breach of service including,
but not limited to health or safety violations.
Agreement.
5) Filing of a bankruptcy petition by VB Golf.
6) Failure to operate BGC for public use for the hours required by this
7) Violation of Section 2.12/B)
8) Violation of Section 2.03(C).
C. If Manager terminates this Agreement under conditions listed in 2.10, City
M=y take over VB Golfs golf activities and provide them in any manner deemed appropriate by
Manager for City's benefit and the public's best interests, by City employees or contractors,
without any liability therefor to VB Golf.
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2.11 Nonassignability
Without the prior consent of the City Council, VB Golf shall have no right, authority, or
power whatsoever to sell, assign, or transfer any right, license, privilege, or duty granted to or
imposed upon it hereunder. Such right, license, privilege, and duty are granted and imposed
solely and personally to and upon VB Golf and any such sale, assignment, or transfer may
result in immediate termination hereof.
2.12 Conflict of Interest
A. V Golf IVia,U e is that neither It nor any of S officers, partners or
employees have a financial interest, as defined in section 87103 of the Government Code, in
the subject -matter of this Agreement, other than the right to receive payment from City for the
services performed.
B. Neither VB Golf, nor any of its officers, employees, agents or
subcontractors, shall offer any gift, entitlement or consideration to any officer, employee or
contractor of City, unless such gift, entitlement or consideration is available to the general
public or is part of a written, public agreement between City and VB Golf.
ARTICLE III
GENERAL CONDITIONS
3.01 Time of the Essence
Time is of the essence in the performance of this Agreement.
3.02 Independent Contractor
AD is understood and agreed that VB Golf (including V B Golfs employees)
is an independent contractor and that no relationship of employer-employee exists between
the parties hereto. VB Golfs assigned personnel shall not be entitled to any benefits payable
to employees of City. As an independent contractor, VB Golf hereby indemnifies and holds
City harmless from any and all claims that may be made against City based upon any
contention by any third party that an employer-employee relationship exists by reason of this
Agreement.
B. It is further understood and agreed by the parties hereto that VB Golf, in
the performance of its obligation hereunder, is not subject to the control or direction of City as
to the designation of tasks to be performed, the results to be accomplished by the services
hereunder agreed to be rendered and performed, and not the means, methods, or sequence
used by VB Golf for accomplishing the results except as specified in this Agreement.
C. If, in the performance of this Agreement, any third persons are employed
or contracted by VB Golf, such person(s) shall be entirely and exclusively under the direction,
supervision, and control of VB Golf. All terms of employment, including hours, wages, working
conditions, discipline, hiring, and discharging, or any other terms of employment or
requirements of law, shall be determined by VB Golf alone.
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D. It is further understood and agreed that as an independent contractor and
not an employee of City, neither VB Golf nor VB Golf's assigned personnel shall have any
entitlement as a City employee, right to act on behalf of City in any capacity whatsoever as
agent, nor to bind City to any obligation whatsoever.
E. It is further understood and agreed that VB Golf must issue local, state
and federal forms for income and employment tax purposes, for all of VB Golf's assigned
personnel under the terms and conditions of this Agreement.
3.03 Indemnification of City
VB Golf shall indemnify, defend, and hold harmless City, its Council Members, officials,
agents, employees, representatives and volunteers from any and all claims, losses, liabilities,
or damages, demands and actions, including payment of reasonable attorneys' fees arising out
of or resulting from the performance of this Agreement, caused in whole or in part by any
negligent or willful act or omission of VB Golf, its officers, agents, subcontractors, employees,
representatives, or anyone directly or indirectly acting on behalf of VB Golf, regardless of
whether caused in part by a party indemnified hereunder.
3.04 Release of Liability
A. City shall not be liable for, and is hereby released from, any and all liability
to VB Golf, VB Golfs insurance carrier, or to any person claiming under or through VB Golf for
any loss or damage whatsoever to the property or effects of VB Golf resulting from the
discharge of water, or other substance, from pipes, sprinklers, conduits, containers,
appurtenances thereof or fixtures thereto, or from any damage resulting from the discharge or
failure of electric current, regardless of cause or origin, except that which is caused by the act
of negligence of or failure to properly construct improvements by City, its Council Members,
officials, employees, representatives or agents.
B. Further, VB Golf shall be responsible for the safety and security of
property, equipment, supplies, merchandise, and commodities used or offered for sale by VB
Golf at BGC. City shall have no liability or responsibility whatsoever, and VB Golf shall make
no claim against City with respect to such matters, except for acts caused by the City's gross
negligence.
3.05 Taxes
VB Golf shall, at its sole cost and expense, pay any and all taxes for which it is
responsible, or which may be assessed against it. The following notice is provided pursuant to
California Revenue & Taxation Code § 107.6: The Premises are owned by the City and the
City is exempt from real property taxes. However, this Agreement may create a possessory
interest by VB Golf subject to property taxation, and VB Golf may be subject to the payment of
property taxes levied on that interest by the State of California or the County of San Mateo.
VB Golf shall be responsible for the payment of any such property taxes.
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3.06 Signs
VB Golf shall place no sign, emblem or advertising of any kind or character, at or on
premises of BGC without the written approval of Manager. All signs shall be subject to the
limitations and restrictions on signage for the applicable zoning district as provided by the
Burlingame Municipal Code. No special dispensation shall be granted because the signage
may be located on a City facility.
3.07 Notices
Any notice, deiiai 1 d, request, consent, or approval, that either party may ^vr IS required
to give the other, shall be in writing and shall be either personally delivered or sent by prepaid
first class mail addressed as follows:
To VB Golf.-
2401
olf:2401 East 3`d Avenue
Foster City, CA 94404
To City:
Parks & Recreation Director
City of Burlingame
850 Burlingame Avenue
Burlingame, CA 94010
3.08 BGC Promotion
City Manager
City of Burlingame
850 Burlingame Avenue
Burlingame, CA 94010
A. VB Golf agrees to the following promotions:
1 City of Burlingame residents shall have a right to purchase range
balls at a minimum 20% discount, when purchasing value cards of $50 or more at BGC. $50
and $100 value cards must be available for sale to the public at BGC. The Burlingame
resident discount on value cards must be a minimum 20% greater than other discounts or
promotional specials offered by VB Golf. VB Golf must require individuals to show proof of
Burlingame residency to receive the resident discount and VB Golf will make and save a
photocopy of the proof of residency. If VB Golf elects to offer value cards valid at more than
one golf facility, the rate for Burlingame residents must be at least as great as that offered to
any other I..dlvidualS or groups.
2 City shall have the right to use the driving range for up to four City
events each year at no cost to the City for range balls or use of the short game area.
3 City shall have the right to conduct up to three fund-raising events
each year, in which all proceeds, less direct costs (VB Golf labor, cost of food), shall be the
property of City. Cost of range balls shall not be considered a cost.
4 City shall have right to organize and advertise for group recreation
golf classes to be taught by VB Golf. Registrations and revenues for recreation group lessons
will be collected by the City and split with VB Golf collecting 75% of the classes resident fees.
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5 VB Golf will offer the use of the Golf Center and practice balls at no
cost to the students of Burlingame and Millbrae Schools for golf teams or field trips.
6 VB Golf will honor all existing BGC value card balances and
outstanding gift certificates at the commencement of this Agreement. In exchange, City will
credit VB Golf back $10,000 each year for the first two years of this Agreement.
3.09 Notice of Claims and Suit
A. City and VB Golf shall each give the other prompt and timely written notice
of any personal injury or accident claim for an amount in excess of ONE THOUSAND
DOLLARS ($1,000.00) and of any lawsuit coming to its knowledge, which in any way directly
or indirectly, contingently or otherwise, might reasonably affect the parties' relationship under
this Agreement.
B. Such notice shall be deemed prompt and timely if given within fifteen (15)
calendar days following the date of receipt of such claim by an officer, official, agent, or
employee of either party, and, if given within five (5) calendar days following the date of service
of process upon either party with respect to any such lawsuit.
3.10 Employee Parking
VB Golf understands that no priority to use of parking spaces will be allowed to VB
Golf, its employees or contractors.
3.11 Applicable Law
This Agreement shall be interpreted and enforced in accordance with the laws of the
State of California, and shall be deemed to have been made, and shall be performed, in the
State of California. Venue for any litigation arising from this Agreement shall be in the
Municipal and Superior Courts of either San Mateo or Santa Clara County.
3.12 Nondiscrimination Clause
VB Golf shall not disci mlinate in the provision, of services ucCause Of color, [race, Creed,
national origin, religion, sex, sexual orientation, age or physical or mental handicap in
accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. Section 2000d), the
American with Disabilities Act (42 U.S.C. Section 12131 et seq.), and all other applicable
laws and regulations requiring "no discrimination".
3.13 Equal Employment Opportunity Requirements
VB Golf warrants that it is an equal opportunity employer and shall comply with
applicable regulations governing equal employment opportunity. VB Golf does not and shall
not discriminate against persons employed or seeking employment on the basis of age, sex,
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color, race, marital status, sexual orientation, ancestry, physical or mental disability, national
origin, religion or medical condition, unless based upon a bona fide occupational qualification
pursuant to the California Fair Employment & Housing Act. In performing services under this
Agreement, VB Golf shall not discriminate against any person on the basis of age, sex, color,
race, marital status, sexual orientation, ancestry, physical or mental disability, national origin,
religion or medical condition, unless based upon a bona fide safety limitation founded on
manufacturer, Consumer Product Safety, and Department of Justice guidelines. VB Golf shall
ensure that its subcontractors and employees conform to the requirements of this Section.
3.14 Compliance
VB Golf shall comply with all applicable federal, state, and county statutes, ordinances,
regulations, directives, and laws and this contract shall be deemed to be executed within the
State of California and construed with and governed by the laws of the State of California.
3.15 Transfer upon Termination
Upon termination of this Agreement, VB Golf shall cooperate with the City in the transfer
of BGC to a follow-on operator, lessee, or the City, as applicable.
3.16 Entire Agreement
This Agreement constitutes the entire Agreement between the parties and all other
representations or statements heretofore made, verbal or written, are merged herein. This
Agreement may be amended only in writing, and executed by duly authorized representatives
of the parties hereto.
3.17 Nonwaiver of Rights
No waiver of default by either party of any of the ter' ls, covel;a" Ls, =Iu colIVILIVIIS
hereof to be performed, kept, and observed by the other party shall be construed as, or shall
operate as, a waiver -of -any subsequent default of any of the terms, covenants, or conditions,
herein contained, to be performed, kept, and observed by the other party.
3.18 Force Majeure
City shall not be deemed in violation of this Agreement if it is prevented from performing
any of its obligations hereunder by reason of strike, boycott, labor dispute, embargo, or
shortage of energy or materials. Neither City nor VB Golf shall be deemed in violation of this
Agreement if either is prevented from performing any of its obligations hereunder by reason of
acts of God, acts of a public enemy, acts of superior governmental authority, weather
conditions, riot, rebellion, sabotage, or any other circumstances for which it is not responsible
or which are not reasonably within its control.
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3.19 Headings
The headings of the articles and sections of this Agreement are inserted only as a
matter of convenience and for reference and do not define or limit the scope or intent of any
provisions of this Agreement, and shall not be construed to affect in any manner the terms and
provisions hereof or the interpretation or construction thereof.
3.20 Dispute Resolution
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regarding either party's performance with respect to matters hereunder subject to the approval,
satisfaction, or discretion of City or Manager, the decision of Manager shall be final.
B. Except for decisions of the Manager to terminate the Agreement pursuant
Section 2. 10, VB Golf may request that the Manager's decision be submitted to arbitration if
the request is made in writing to the Manager no later than ten (10) days following the date of
the decision. The parties shall meet in arbitration within sixty (60) days of such a request.
The arbitrator shall be agreed to by the parties; if the parties are unable to agree to an
arbitrator, the parties shall request a list of five (5) persons experienced in business arbitration
from the San Mateo County Bar Association. Each party shall alternately strike a name until
only one name remains. The order of striking shall be determined by lot.
The costs of the arbitrator shall be borne equally by both parties. Neither
party shall be deemed the prevailing party. Either party may reject the arbitrator's decision and
bring suit in San Mateo Superior Court on the matter but no later than sixty (60) days following
the date of the arbitrator's decision.
3.21 Renegotiation of Agreement
"Ter party may request the renegotiation of this agreelIIent at al y time due to the
need or desire to make capital improvement projects to the facility. Unless both parties agree
to renegotiate, the existing Agreement shall remain in full force.
3,22 Records orodiurtion
A. Upon written notification by City, VB Golf shall make all of its records
concerning sale and usage of resident cards involving BGC available to City at the business
office of VB Golf.
B. Upon written notification by City, VB Golf shall make all of its financial
records regarding BGC available to City at the business office of VB Golf including, but not
limited to, general ledger, original entry journals, canceled checks, invoices, bank statements,
federal and state payroll and income tax filings and financial statements. VB Golf shall provide
such access to its records for purposes of investigating and verifying VB Golfs compliance
with the terms of this Agreement and State and Federal law and for no other purpose.
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3.23 Retention of Records.
VB Golf shall retain all its books and records of account for the term hereof for not less
than five (5) calendar years following the last day of such term. Such books and records of
account shall show all VB Golfs Gross Receipts, discounts, promotional credits, commissions
and other income derived from its Operations pursuant to this Agreement, all deductions
therefrom, supporting documents and all other information required by this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
81 Id y6ar first above wntton.
CITY OF BURLINGAME:
QI
ATTEST:
0
City Manager
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
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