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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. H:~_EG-DIR~DoyleD Cur[~s~YDOCS~003.04~LEASE ORD~O82604DC Lease.Leslea Tith:~w dba.TeeBox Gol[.Courses Concess ion5yr. Ord.doc · :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~ Page 4 of 8 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