HomeMy WebLinkAbout025975 ORD - 09/28/2004Page 1 of 2
AN ORDINANCE
AUTHORIZING THE CITY MANAGER, OR DESIGNEE, TO EXECUTE A
FIVE YEAR CONCESSION SERVICES LEASE AND USE AGREEMENT
WITH LESLEA J. TITLOW DBA THE TEE BOX AT BOTH THE GABE
LOZANO SR. GOLF CENTER AND THE OSO BEACH MUNICIPAL GOLF
COURSE IN CONSIDERATION OF LESLEA J. TITLOW DBA THE TEE
BOX PAYING 17% OF MONTHLY GROSS SALES OR $1,750 PER
MONTH, WHICHEVER IS GREATER, AT THE GABE LOZANO SR. GOLF
CENTER; AND 17% OF MONTHLY GROSS SALES OR $1,250 PER
MONTH, WHICHEVER IS GREATER, AT THE OSO BEACH MUNICIPAL
GOLF COURSE; PROVIDING FOR SEVERANCE; AND PROVIDING FOR
PUBLICATION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI,
TEXAS, THAT:
SECTION 1. The City Manager, or his designee, is authorized to execute a five year
concession services Lease and Use Agreement with Leslea J. Titlow dba The Tee Box
in consideration of paying 17% of Monthly Gross Sales or $1,750 per month, whichever
is greater, at the Gabe Lozano Sr. Golf Center; and 17% of Monthly Gross Sales or
$1,250 per month, whichever is greater, at the Oso Beach Municipal Golf Course. The
Lease and Use Agreement is attached as Exhibit A and a copy is on file with the City
Secretary.
SECTION 2. Under Article IX, Section 3 of the City Charter, the Lease and Use
Agreement begins on the 61s~ day after City Council adoption of this ordinance on
second and final reading and will have a term of five (5) years; and the second and final
reading of this ordinance is at least twenty eight (28) days after the first reading. Each
reading was done at a regular meeting of the City Council.
SECTION 3. The City Council intends that every section, paragraph, subdivision,
clause, phrase, word or provision of this ordinance shall be given full force and effect for
its purpose. Therefore, if any section, paragraph, subdivision, clause, phrase, word or
provision of this ordinance is held invalid or unconstitutional by final judgment of a court
of competent jurisdiction, that judgment shall not affect any other section, paragraph,
subdivision, clause, phrase, word or provision of this ordinance.
SECTION 4. Publication shall be made in the official publication of the City of Corpus
Christi as required by the City Charter of the City of Corpus Christi.
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· :i9/5
Page 2 of 2
The foregoing ordinance was read for the first time and passed to its second reading
this the ~J ~r day of ~'~J~ ,2004, by the following vote:
Samuel L. Neal, Jr. 0,.~,~,.~
Brent Chesney
Javier D. Colmenero
Melody Cooper
Henry Garrett
on
William Kelly
Rex A. Kinnison
Jesse Noyola
Mark Scott
The foregoing ord. inanc_~, was read for the second time and passed finally on this the A~
day of ..~.b..,~J~.-ct_~ ,2004, by the following vote:
Samuel L. Neal, Jr. ~ William Kelly
Brent Chesney b ~,-~-. Rex A. Kinnison ~'~
Javier D. Colmenero ~t..c) ~ Jesse Noyola ~'~.~.
Melody Cooper ~ Mark Scott
Henry Garrett ~.~/_.
PASSED AND APPROVED on the ~day ofc~? ~, 2004.
A'I-I'EST:
Armando Chapa
City Secretary
Mayor, The City of Corpus Chdsti
urtis
Chief, Administrative Law Section
Senior Assistant City Attorney
For City Attorney
H:~LEG~D~R~D~y~eD Curtis~MY~CS~3 ~4~EASE ~RD~826~4DC Leas~ Le~ea~T~w~dba Tee~]~G~C~urses Concess io~5yr. Ord.doc
Page 1 of 8
FIVE YEAR LEASE WITH
LESLEA J. TITLOW, DBA THE TEE BOX,
TO PROVIDE CONCESSION SERVICES
AT GABE LOZANO SR. GOLF CENTER AND
AT OSO BEACH MUNICIPAL GOLF COURSE
THE STATE OF TEXAS §
COUNTY OF NUECES §
KNOW BY ALL THESE PRESENTS:
This Lease (this "Lease") is entered into between the City of Corpus Chdsti, a Texas
municipal corporation ("City"), and Leslea J. Titlow, dba The Tee Box, of Nueces
County, Texas (the "Concessionaire").
In consideration of the covenants, agreements and conditions herein contained, the
City and Concessionaire agree as follows:
1. Term. The City leases the Premises described on the attached and incorporated
Exhibit "A' (Premises) to Concessionaire for five years beginning the 61st day after final
City Council approval, which is , unless sooner terminated.
Concessionaire may holdover, on a month to month basis, not to exceed one year, on
the same terms and conditions.
2. Concession Rights. In consideration of the rent paid by the Concessionaire,
and of the covenants herein, City grants Concessionaire the exclusive right to use the
Premises, including the basic utilities at Gabe Lozano Sr. Golf Center and the Oso
Beach Municipal Golf Course to make direct sales to the public of food, drinks, and
beer.
Concessionaire may use vending machines to sell beverages, snacks, tobacco and
other memhandise customarily handled by a concessionaire. Concessionaire may use
a mobile concession on the golf course grounds with prior wdtten approval from the
Director of Park & Recreation or designee ("Park Director").
Park Director expressly retains the right to:
(4)
Make final decisions on matters that may adse, not specifically covered in this
Lease, including the interpretation hereof.
(2) Sell space for either temporary or permanent signs.
Page 2 of 8
(3)
Approve the form, pdce, and pdce increase of products and services to be
sold and/or provided by Concessionaire. Disposable containers (paper or
plastic) suitable for consumption of the products on Premises immediately
after the sale are required and must meet Park Director's approval. Glass
bottles are not permitted. Concessionaire must not reuse a container after
initial sale or use.
3. Location. Except for the supervision of the Park Director, Concessionaire has
exclusive control over the Premises subject to the terms, conditions, and covenants of
this Lease.
4. Basic Utilities. Included as part of the monthly rental payment to City, City will
provide: basic electrical services for lights, refrigerators, air conditioning, etc.; water
service; wastewater service; and garbage pickup. Concessionaire will be responsible
for additional electrical costs due to the installation of heavy-utility equipment or
adjustments to payments to the City.
5. Concessionaire Responsibilities. The Concessionaire will be responsible to
the City as follows:
Concessionaire must furnish, install, service and maintain in good working
order all equipment, including cooking, dispensing, and cooling equipment,
and supplies required to propedy execute this Lease. Vending machines
remain the exclusive property of the Concessionaire.
(2)
Concessionaire will operate the concession in accordance with all federal,
state, and local laws and all relevant rules and regulations that may be
promulgated by City Manager of the City of Corpus Chdsti, Texas or his
designee ("City Manager").
(3)
Insurance. Concessionaire must secure and maintain at Concessionaire's
expense dudng the term of this Lease, a Commercial General Liability
insurance policy with the limits and requirements shown on the attached and
incorporated Exhibit "B'. The Certificate of Insurance must be sent to the
Park Director and a copy to City's Risk Manager and must provide 30 days
wdtten notice of cancellation, intent to not renew or matedal change of any
coverage required herein. Concessionaire shall provide copies of all
insurance policies to the Risk Manager upon City Manager's written request.
(4)
The food and ddnk will be dispensed by attendants fumished by the
Concessionaire at Concessionaire's expense. All employees who are
involved in the serving of alcoholic beverages must be certified through a
TABC approved program. Concessionaire's minor cleanup duties
Page 3 of 8
will consist of keeping tables clean, cleaning up spilled food and drink,
frequent cleaning of windows, floors, walls, and ceiling fans (if installed) and
removal of trash from the Premises and the outside area_
(5)
Concessionaire will furnish all related supplies and condiments. Tables and
chairs in the service area are provided by the City.
(6)
Concessionaire will provide suitable signs at the facility advising the public
that Concessionaire is serving as an independent contractor.
(7)
The Concessionaire will immediately report, upon discovery, any vandalism or
malfunction of facilities to the Park Director (880-3461) or Head Golf Pm
(883-3696), and any problems relating to unlawful activity to the Police
Department (882-1911) if non-emergency or 911 for emergency response.
(8)
Concessionaire will establish good public relations and promote this
concession service to all citizens of Corpus Christi and its visitors. Hours of
operation will coincide with the Pro Shop hours or as approved by the Park
Director.
(9)
Park Director will approve the quality, quantity, and price schedule of all
concession merchandise. Selling pdce will exclude all applicable state and
local sales tax. All commissions or percentages paid to the City must be on
basis of gross sales, less sales tax and alcoholic beverage tax.
(10)
Concessionaire will sell vadous sundry items (i.e., aspidn, non-prescription
cold tablets, insect repellant, etc.). A list of such items being offered for sale
and their pdce must be approved by the Park Director pdor to sale.
6. Monthly Payments; Late Payment Fee. Commencing with the effective date of
this Lease, Concessionaire must, by the 10~ day of each month, pay to the City at the
Office of Collections the following: seventeen percent (17%) of Concessionaire's
monthly Gross Receipts, or $1,750.00 per month, whichever is greater, for the Gabe
Lozano Sr. Golf Center concession; and seventeen (17%) of Concessionaire's monthly
Gross Receipts, or $1,250.00 per month, whichever is greater, for the Oso Beach
Municipal Golf Course concession. These payments are for the life of this Lease,
calculated on a monthly basis. For any payment not paid by the 10~ day of the month,
Concessionaire shall pay, by the 10~ day of the following month, to the City at the Office
of Collections a late payment fee equal to five (5%) per cent of the late payment.
"Gross Receipts" mean Concessionaire's total revenue for concession merchandise
sold at the Premises excluding applicable sales tax and alcoholic beverage tax_
Concessionaire must file with the Park Director on or before the 10~h day of each month
a monthly report of Gross Receipts, the report form being designed and supplied by the
Director of Finance or designee ("Director of Finance"), as the same may be amended
H:~. EC-q31R~OIg aR~Doyie\o82604D~.LEA$ E.LESLEA. T~Iow.d ba.T~eBox. Gc~f.C~ursa. s. Conces sion.5~.d~
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from time to time. Concessionaire must submit to the Park Director a copy of all
quarterly sales and use tax reports. The Director of Finance will approve
Concessionaire's system of accounting for the Gross Receipts.
7. Books of Account. The Concessionaire must keep true and accurate records in
a format acceptable to the Director of Finance. The Park Director or Director of Finance
may audit Concessionaire's records of Gross Receipts and all pertinent records at a
reasonable time to determine their accuracy and Concessionaire's compliance with the
Lease terms.
If a monthly report of Gross Receipts understates Gross Receipts by 10% of the true
Gross Receipts, that monthly report is deemed to be knowingly and falsely furnished by
Concessionaire and is grounds for the City to immediately terminate this Lease.
8. Retention of Records. Concessionaire will retain permanent books, ledgers,
journal accounts, and backup documentation for five years after the termination or
expiration of this Lease and any holdover pedods. Concessionaire must comply with all
federal, state, or local accounting rules.
Upon the Park Director's written request, the Concessionaire will prepare a report of
its operations under the Lease in a format acceptable to Park Director, and submit the
report to Park Director within 60 days of his wdtten request thereof.
9. Audits. If an audit establishes that Concessionaire owes City more money,
Concessionaire must pay the additional money within 30 days after Park Director's
wdtten demand thereof. If the audit establishes that Concessionaire has under reported
Gross Receipts by 2% or more, Concessionaire must pay all costs of the audit.
10. Other Food. Any allowances or adjustments for allowing other food or ddnks
on the Premises must have pdor approval from Concessionaire.
11. General Provisions.
(1) Concessionaire will not on the grounds of disability, sex, race, color, or
national origin, discriminate or permit discrimination against any person or group of
persons in any manner. The City Manager hereby reserves the dght to take action as
the United States Government may direct to enforce this covenant.
(2) The Concessionaire will refrain from any unlawful employment practices and
comply with all lawfully adopted regulations related thereto.
(3) Concessionaire will furnish service on a fair, equal, and nondiscriminatory
basis to all users thereof, and will charge fair, reasonable, and nondiscriminatory pdces
for each unit of service.
Page 5 of 8
(4) Cancellation; Termination. Park Director retains the dght at any time to
cancel this Lease without cause upon sixty (60) days written notice to Concessionaire.
Park Director may terminate this Lease with cause upon thirty (30) days written notice to
Concessionaire. The Concessionaire may terminate this Lease without cause if the
Concessionaire provides the Park Director sixty (60) days advance written notice.
Notices must be given in writing by sending by first class mail. postage prepaid, to the
following:
TO CITY:
TO CONCESSIONAIRE:
Director of Park and Recreation
P.O. Box 9277
Corpus Chdsti, Texas 78469-9277
(361) 880-3461
(361) 880-3864 fax
Leslea J. Titlow dba The Tee Box
7122 Brookedge Lane
Corpus Chdsti, Texas 78414
(361) 994-1893 or (361) 443-9704
(361) 994-9112 fax
or at any other address that each party may designate to the other in writing.
(5) Concessionaire may not alter the Premises without pdor wdtten consent of
the Park Director. All alterations made by the Concessionaire become the property of
the City in fee simple, without any further action or process of law upon termination of
the Lease.
(6) In any legal action undertaken by any party hereto to collect for any damages
growing out of or compensation due under this Lease. the prevailing party must be
reimbursed for all court costs and expenses and reasonable attomey's fees of not less
than ten percent (10%) of the total amount of the judgment.
(7) Indemnity. To the extent permitted by Texas Law,
Concessionaire, its officers, members, partners, employees, agents,
and #censees ("lndemnitors") hereby fully indemnify, save and hold
harmless the City of Corpus Christi, its officers, employees, agents,
licensees, and invitees ("lndemnitees") against any and aH liability,
damage, loss, claims, demands and actions of any nature whatsoever
on account of personal injuries (including, without limitation on the
foregoing, worker's compensation and death claims), or property loss
or damage of any kind whatsoever, which arise out of or are in any
manner connected with, or caused by, or are claimed to arise out of or
be in any manner connected with, or caused by either proximately or
remotely, wholly or in part, an act or omission, negligence or
misconduct by Indemnitors or Indemnitees or any of Indemnitor's of
Indemnitee's agents, servants, employees, contractors, patrons,
guests, licensees, or invitees entering upon the Premises pursuant to
this Lease, or any of the hazards commonly associated with the
H:~-EG-DIR~O~g a R'~D~yfe~O82604 DC,L EAS E.LESL EA.T~ow. dba TeeBox. C~lf. Cou rsas. Conces sio~ 5y~ doc
Page 6 of 8
operation of a food and beverage concession; or the violation by
Indemnitees, Concessionaire, or any of its agents, servants,
employees, contractors, patrons, guests, licensees, or invitees of any
law, ordinance, or governmental order of any kind, or improvements
located on the Premises herein or out of the use or occupancy of the
improvements to the Premises or the Premises itself by Indemnitees,
Concessionaire, its agents, servants, employees, contractors,
patrons, guests licensees, or invitees.
The terms of indemnification are effective even though said injury
or damage may result from the sole negligence, contributory
negligence, or concurrent negligence of Indemnitees or any of them.
Concessionaire must at its own expanse, investigate all those claims
and demands, attend to their settlement, or other disposition, defend
all actions based thereon with counsel satisfactory to Indemnitees
and pay all charges of attorneys and all other costs and expenses of
any kind from any of said liability, damage, loss, claims, demands, or
actions.
(8) Concessionaire must complete an incident/accident report for each
incident/injury that occurs on the Premises. Concessionaire must provide City with copy
of all incident/accident reports as they are completed.
(9) Concessionaire must submit a completed Disclosure of Interest Form as part
of this Lease.
(10) Concessionaire agrees to pay the costs of newspaper publication of this
Lease and related ordinance as required by the City Charter.
(11) Concessionaire covenants to pay payroll taxes, Medicare taxes, FICA taxes,
unemployment taxes, and all other related taxes according to Circular E Employer's Tax
Guide, publication 15, as it may be amended. Concessionaire must provide proof of
payment of these taxes to Park Director within thirty (30) days after payment is due
upon Park Director's written request therefor. Failure to pay or provide proof of
payment will be grounds for immediate termination of this Lease and a penalty fee may
be added.
Page 7 of 8
SIGNED this day of ,2004.
A'I-rEST:
CITY OF CORPUS CHRISTI, TEXAS
Armando Chapa
City Secretary
George K. Noe
City Manager
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF NUECES §
KNOW ALL BY THESE PRESENTS:
This instrument was acknowledged before me on ,2004,
by George K_ Noe, City Manager of the City of Corpus Chdsti, a Texas home-rule
municipal corporation, on behalf of the corporation.
(seal)
Notary Public, State of Texas
APPROVED AS TO LEGAL FORM 26 August, 2004
Doyle Curtis
Chief, Administration Law
Senior Assistant City Attomey
For City Attorney
Page 8 of 8
CONCESSIONAIRE: LESLEA J. TITLOW, dba
THE TEE BOX
Title:
ACKNOWLEDGMENT
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES §
This instrument was acknowledged before me on ~O .,~ ~ ,2004,
by L~I~,. "~,~r(ou.~ who is the ~)~.,~z.~ (title) of
the organization name, a Texas nonprofit (delete word if not nonprof'~) corporation on
behalf of the corporation.
(seal)
· ~ N. G[-OR(~[. ii Texas
Notary ublic, State of e~xas
· EXHIBIT A-1
· EXHIBIT A-2
r
EXHIBIT B
INSURANCE REQUIREMENTS
Section I. CONCESSIONAIRE'S LIABILITY INSURANCE
Concessionaire must not commence work under this permit until all insurance required herein
has been obtained and such insurance has been approved by the City. Concessionaire must
not allow any subcontractor to commence work until all similar insurance required of the
subcontractor has been obtained.
Concessionaire must furnish to the City's Risk Manager, two (2) copies of Certificates of
Insurance, showing the following minimum coverage by an insurance company(s) acceptable to
the City's Risk Manager. The City must be named as an additional Insured for the General
liability policy and a blanket waiver of subrogation is required on all applicable policies.
TYPE OF INSURANCE
30 day written notice of cancellation, material
change, non-renewal or termination and al0-
day written notice of cancellation for non
payment of premium Is required on all
certificates
Commercial General Liability Including:
5.
6.
7.
Commercial Form
Premises - Operations
Products/Completed Operations
Hazard
Contractual Liability
Broad Form Property Damage
Independent Contractors
Personal Injury
LIQUOR LIABILITY
AUTOMOBILE LIABILITY-OWNED, NON-
OWNED OR RENTED
WORKERS' COMPENSATION
EMPLOYERS' LIABILITY
MINIMUM INSURANCE COVERAGE
Bodily Injury and Property Damage
$1,000,000 COMBINED SINGLE LIMIT
$1,000,000 COMBINED SINGLE LIMIT
At a minimum, State required minimum limits
of $20,000 per person / $40,000 per
occurrence for Bodily Injury and $15,000 for
Property Damage
WHICH COMPLIES WITH THE TEXAS
WORKERS' COMPENSATION ACT AND
SECTION II OF THIS EXHIBIT
$500,000
In the event of accidents of any kind, the Concessionaire must fumish the Risk Manager with
copies of all reports of any accidents within 10 days of the accident.
Golf Course Concessionaire Ins req; 8-27-04 ep Risk Mgmt
Sec'don II. ADDITIONAL REQUIREMENTS
Concessionaire must obtain workers' compensation coverage through a licensed
insurance company. The contract for coverage must be written on a policy and
endorsements approved by the Texas Department of Insurance. The coverage
provided must be in an amount sufficient to assure that all workers' compensatJon
obligations incurred by Concessionaire will be promptly met.
B. Certificate of Insurance:
The City of Corpus Christi must be named as an additional Insured on the
General Liability coverage, and a blanket waiver of subrogation is required on all
applicable policies.
If your insurance company uses the standard ACORD form, the cancellation
clause (bottom dght) must be amended by adding the wording "changed or'
between "be" and "canceled", and deleting the words, "endeavor to", and deleting
the wording after "left".
* The name of ~e project must be listed under "Description of Operations"
At a minimum, a 30-day written notice of cancellation, matedal change, non-
renewal or termination and a 10-day written notice of cancellation for non-
payment of premium is required.
If the Certificate of Insurance does not show on its face the existence of the coverage
required by items I.B (1)-(7), an authorized representative of the insurance company
must include a letter specifically stating whether items I.B. (1)-(7) are included or
excluded.
Golf Course Concessionaire ins req; 8-27-04 ep P, Jsk Mgrnt
PUBLISHER'S AFFIDAVIT
State of Texas
County of Nueces
SS:
CITY OF CORPUS CHRISTI
Ad # 4996035
PO #
Before me, the undersigned, a Notary Public, this day personally came Diana
[tinoiosa, who being first duly sworn, according to law, says that she is Credit
Manager of the Corpus Christi Caller Times, a daily newspaper published at
Corpus Christi ~n said City and State, generally circulated in Aransas, Bee,
Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak,
Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the
publication of, NOTICE OF PASSAGE OF ORDINANCE ON which the annexed
is a true copy, was inserted in the Corpus Christi Caller-Times and on the World
Wide Web on the Caller-Times Interactive on the 5TH day(s) of SEPTEMBER,
2004.
? 9.oo
TW'(J. 12 } Time(s}
Credit Manager
Subscribed and sworn to me on the date of
SEPTEMBER 06. 2004.
Notary Public, Nueces County, Texas
ROSA MARIA FLORES
Print or Type Name of Notary Public
My commission expires on 04/23/05.
~ F~RST READING
Manager or hie
Statc of Texas
County of Nueces
SS:
PUBLISHER'S AFFIDAVIT
CITY OF CORPUS CHRISTI
Ad# 5019380
PO #
Before me, the undersigned, a Notal-y Public, this day personally came Diana
Hlnoiosa, who being first duly sworn, according to law, says that she is Credit
Manager of the Corpus Christi Caller-Times, a daily newspaper published at
Corpus Christi in said City and State, generally circulated in Aransas, Bee,
Brooks, Duval, Jim Hogg, dim Wells, Karnes, Kenedy, Kleberg, Live Oak,
Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the
pubhcation of, NOTICE OF PASSAGE OF ORDINANCE NO. which the annexed
is a true copy, was inserted in the Corpus Chnsti Caller-Times and on the World
Wide Web on the Caller-Times Interactive on the 3RD day(s) of OCTOBER,
2004.
$116.00
TWO (2) Time(s)
Credit Manager
Subscribed and sworn to me on the date of
OCTOBER 04, 2004.
Notary PubI~c, Nueces County, rexau
ROSA MARIA FLORES
Print or Type Name of Notary Public
My commmsion expires on 04/23/0S.
Ihe Oio Beach