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HomeMy WebLinkAboutO-2000-2430 e . ORDINANCE NO. 2ooo-~,*5() AN ORDINANCE APPROVING AND AUTHORIZING AN EMPLOYMENT AND LEASE AGREEMENT BETWEEN THE CITY OF LA PORTE AND ALEX OSMOND, FOR THE CITY OF LA PORTE BAY FOREST GOLF COURSE; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, in substantially the form as shown in the document which is attached hereto and incorporated herein by this reference. The City Manager is hereby authorized to execute such document and all related documents on behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal of the City to all such documents. section 2. The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the Ci ty for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. section 3. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. e ORDINANCE NO. 2000- ^Atbt> e PAGE 2 PASSED AND APPROVED, this 28th day of August, 2000. ATTEST: ~dv t11f1l1J) a tha A. Gillett, City Secretary By: - :lAS ~ Norman Mayor e . STATE OF TEXAS { { COUNTY OF HARRIS { EMPLOYMENT AND LEASE AGREEMENT THIS EMPLOYMENT AGREEMENT, entered into effective the 1st day of October, 2000, by and between the CITY OF LA PORTE, a municipal corporation, of Harris County, Texas, sometimes hereinafter designated as "Employer" or the "City", and ALEX OSMOND, sometimes hereinafter designated as the "Professional" or the "Lessee", or "Independent Contractor". WHEREAS, City has constructed, and will own and operate the City of La Porte Bay Forest Golf Course, hereinafter referred to as the "Golf Course"; WHEREAS, the City is desirous of entering into a written Employment and Lease Agreement with Professional, all upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. TERM OF AGREEMENT: City hereby employs Professional for the term beginning on October 1, 2000 and terminating on September 30, 2005 with a two (2) year option by Employee to renew (on the same terms and conditions), and on a month to month basis thereafter, until terminated by either party hereto, upon thirty (30) days written notice to the other party. Employee hereby accepts such employment. 2. LEASE OF FACILITIES: The Professional hereby leases from City and City hereby leases to Professional, upon the terms and conditions herein contained, for the period of employment of Professional described in Paragraph 1 above, the facilities and the e e golf course clubhouse described on Exhibit "A", attached hereto and fully incorporated by reference herein; and golf range facility, described on Exhibit "B", attached hereto and fully incorporated by reference herein. Rental shall be paid by Professional to City for said facilities in the amount of $1.00 per year or for any part of a year, commencing on October 1, 2000 with additional installments for rental due and payable to City by Professional on or before each annual anniversary date of this contract. 3_ DUTIES OF THE PROFESSIONAL: A. The Professional shall devote his time, attention and energies to the performance of duties as golf professional at the Golf Course during the term of this Agreement. He shall conduct himself at all times and in all matters in accordance with the standards accepted for golf professionals established by the PGA, and in accordance with the rules contained in the City of La Porte Personnel Policy Manual. B_ The Professional shall conduct all golf tournaments and shall initiate and promote golf activities for patrons of the Golf Course. C_ The Professional shall cooperate with Golf Course patrons and render professional advice, opinions, assistance and services as required. D. The Professional shall maintain a credit rating with suppliers and manufacturers and others so as not to discredit the reputation or name of the City_ Except in the event of a dispute involving goods or services provided by suppliers or manufacturers, invoices shall be paid within sixty (60) days of due date by 2 e e Professional. E. The Professional shall supervise, direct and train a staff of employees, of both Professional and City, including Assistant Professionals, so as to perform duties and meet requirements for sales, rentals, and services which are, in the opinion of the City and the Professional, necessary. F. The Professional shall operate and maintain a golf shop for repairs, handling, storage, sales, leasing, and services related to golf equipment (excluding private power golf car repair) . The City shall provide necessary fire and burglar alarm systems for areas on the golf course clubhouse premises. Professional, and his employees shall secure said premises at all times. Professional shall be responsible for carrying insurance as he deems necessary to cover equipment and merchandise utilized by Professional and his employees in the operation and maintenance of the golf pro shop, including insurance on merchandise and equipment utilized by Professional and his employees _ It is understood by Professional that the City shall not be maintaining any insurance coverage on merchandise or equipment of Professional. G. The Professional will supervise and work closely with the Greens Superintendent. H. The Professional agrees to be available to attend meetings of the La Porte City Council, and other meetings as directed by the City Manager (or his duly designated representative) as may be necessary to discuss areas within the realm of Professional's duties. I. The Professional agrees to provide management 3 e e responsibility and authority to all contracts the city enters into for the Golf Course and clubhouse improvement as directed by the City Manager. J. The Professional agrees to provide upkeep, cleaning, and maintenance of restroom facilities in a manner generally accepted by the public. 4. DUTIES OF CITY: A. The City agrees to employ, subject to the supervision of Professional, golf course personnel as my be necessary for the proper maintenance and operation of the Golf Course. Provided that said personnel shall be employed only if sufficient funds are provided for by the City Council in its most recent adopted budget on behalf of the City_ Food and beverage service will be contracted by City to a third party, and Professional shall manage the contract on behalf of the City. Professional shall be responsible for the employment and payment from his own funds, of Professional's pro shop employees, and will carryon behalf of Professional's pro shop, employees worker's compensation insurance and such other insurance as is provided by law that an employer pay on behalf of his employees. B_ The City will provide Professional the usual and customary employment benefits, except "pay for performance" benefits, as are received by all full time City employees, in accordance with the edition of the City of La Porte Personnel Policy Manual most recently adopted by the City Council of the City of La Porte. 5. COMPENSATION: In addition to other remuneration herein 4 e e indicated to be received by the Professional, under Paragraph 6, Concessions, the Professional shall be paid for his services the following annual sums for each annual period commencing October 1, 2000, payable in bi-weekly installments: Year 1 through 4: Year 5: Option Years: $45,000 $48,000 $48,000 During the term of this Agreement, the Professional shall be under the supervision and directly responsible to the City Manager or his duly designated representative, and said salary increases shall depend upon a satisfactory rating from the City Manager. As "Additional Compensation", City shall pay Professional the following gross percentages, exclusive of sales tax, or any other tax applicable to said gross percentages, on revenues received by City after the first 40,000 rounds of annual play, such sums to be payable by City to Professional wi thin thirty (30) days of the close of each fiscal year of City during this Agreement: Green Fees After 40,000 Rounds 7% Cart Rentals After 40,000 Rounds 15% The relationship between City and Professional shall be that of Employer-Employee, and shall not be construed to be a partnership relationship in any respect. There shall be deducted from all compensation (except for Additional Compensation as above defined) paid by the City to the Professional such sums, including but without limitation, social security, income tax withholding, health insurance, Texas Municipal Retirement, and any other taxes or state insurance, as Employer is by law obligated to deduct. Except as expressly varied by the 5 . e terms of this Employment Agreement, the employment of Professional by City, shall be subject to all of the terms and conditions of the current edition of the City of La Porte Personnel Policy Manual_ 6. CONCESSIONS: In addition to performing the duties required under Paragraph 3 hereof, the Professional shall be given the exclusive privilege, and shall be required, during the term hereof, to operate the following concessions on the Golf Course premises: A. Sale of Merchandise: The Professional shall have the exclusive right as an Independent Contractor to sell golf-related merchandise (exclusive of food and beverages, which concession has been contracted to another party), and to receive all the proceeds therefrom, on the Golf Course property with the obligation upon the Professional to maintain a proper stock to adequately serve the patrons. It is understood by Professional that the City shall not be carrying business interruption insurance on said golf-related merchandise for sale. The Professional shall set and post business hours for the golf shop according to the season_ The Professional shall have the sole right to recover lost golf balls from the golf course property. B. Golf Instruction: The Professional and his staff shall have the exclusive right as the Independent Contractors to contract for golf lessons at the location of the Golf Course. Charges for such lessons shall be fixed by and received by the Professional. Records shall be kept by the Professional of the number of lessons given and charges .received by the Professional_ C. Golf Club Services: The Professional, as an Independent 6 . e Contractor, at his option, may offer to service, clean and repair golf clubs for patrons of the Golf Course. Any revenues therefrom shall be the sole property of the Professional. If Professional decides not to offer said service, he shall so notify the City in writing, which shall then have the right to offer this concession to a third party. D_ Power Golf Cars and Golf Carts: The Professional and/or his assistant shall be responsible for the leasing of power golf cars to patrons of the Golf Course, and the handling of bags on and off said cars. The power golf cars are owned and maintained by City. The decision to allow cars on the course shall be determined by the Greens Superintendent after consultation with the Professional. The revenues for power golf cars shall be solely the property of the City, subject to the Professional's right, however, to additional compensation as provided in Paragraph 4. E. Golf Range: Professional shall be responsible for the operation of the golf range, and shall have the exclusive right to rent practice balls in the area provided by the Golf Course for that purpose and to receive all revenues therefrom_ The Professional will provide ball dispensing machines, range balls, retrieval and washing equipment. Ci ty will be responsible for grass cutting and maintenance of the range. F. Cash Register: Employee shall maintain a separate cash register for Employee's golf shop, driving range, and private lessons _ All green fees, power cars, and cart rentals, and any other revenues from the Golf Course, shall be rung up and maintained in a separate cash register to be furnished by City. 7 e e Professional shall follow accounting procedures established by the City's Director of Finance to account for all green fees, power car and cart rentals, and any other revenues from the Golf Course. Professional understands as part of the City's accounting practice, inter-departmental audits may be conducted by the City's Director of Finance, or said Director's designated representative, at his discretion. G. Reporting: Professional shall furnish the City Manager wi th a copy of Professional's sales tax returns and Schedule "c" tax return on Professional's operations. 7. TERMINATION: This Agreement will terminate in any of the manners provided in the City of La Porte Personnel Policy Manual, or upon the happening of any of the following events: A. Upon its normal termination if not renewed. B. Upon the death of the Professional. C. Upon the physical disability of the Professional. Said disability shall be such as will incapacitate the Professional for an aggregate of six months during the working period of this Agreement. After such period the City can elect to terminate this Agreement within 60 days after notice is delivered to the Professional. D. Upon written notice by the City of termination for good and sufficient cause. Such good and sufficient cause shall include, but not be limited to, the following: a. Dishonesty detrimental to the best interests of the City. b. Continuing inattention or negligence of duties. 8 e e c. Suspension from the PGA for more than 30 days. d. Illegal or immoral conduct. In the event of termination of this Agreement, the Professional shall be paid his compensation to and including the month of death or, in the event of disability, shall be paid to the 1st day of the month in which termination occurs. In the event of termination by death, disability, or by the City other than for good and sufficient cause prior to the normal termination date, the Professional or his representative may elect to have the City purchase all logo-type merchandise purchased within the previous one (1) year, at Professional's cost less depreciation as set forth under standard accounting practices, and to pay the same to the Professional or his representative within 30 days of the date of the notice of such election. The Professional shall be responsible for all outstanding debts of the Professional. 8. OTHER EMPLOYMENT: Professional shall not, during the term hereof, be interested directly or indirectly, in any manner, as partner, officer, director, stockholder, advisor, employee or in any other capacity in any business that provides goods or services to La Porte Bay Forest Golf Course. 9. VACATION AND SICK LEAVE: Employee's vacation, sick leave, and other benefits as an employee of the City, shall be as set forth in the current edition of the City of La Porte Personnel Policy Manual, except as modified by this Agreement. 10. NON-ASSIGNABILITY: The parties hereto agree that Employee's services are personal and that this Employment and Lease 9 e e Agreement shall not be assignable by Employer but shall be binding upon the heirs, administrators, and executors of Employee. Neither the Employee, nor his wife, nor his heirs have any right to sell, transfer or assign the right to receive payments hereunder and any such attempted assignment or transfer shall, at the option of Employer, terminate this Agreement. 11 . NOTICES: All notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be deemed to have been given upon deposit thereof for mailing at any general or branch United States Post Office enclosed in a registered or certified postpaid envelope and addressed as follows: TO THE CITY: CITY OF LA PORTE P.O. Box 1115 La Porte, TX 77572 Attn: City Manager TO THE PROFESSIONAL: Alex Osmond 1038 Oak Leaf La Porte, TX 77571 The parties hereto may designate a different place at which notice shall be given, provided, however, that any such notice or change of address shall be effective only upon receipt. 12. ENTIRE UNDERSTANDING: This Agreement supersedes any other prior agreements and sets forth the entire understanding of the parties hereto with respect to the subject matter thereof and no other representations, warranties or agreements whatsoever have been made to Employee not herein contained. This Agreement shall not be modified, amended or terminated except by another instrument in writing executed by the parties hereto. 10 e e 13. SEVERABILITY: In case one or more of the provisions contained in this Agreement (or any portion of any such provisions) shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement (or any portion of any such provisions), but this Agreement shall be construed as if such invalid, illegal or unenforceable provision (or portion thereof) had never been contained herein. The failure by either party, at any time, to require performance by the other party of any of the provisions hereof, shall not be deemed a waiver of any kind, nor in any way affect the aggrieved party's rights thereafter to enforce the same. 14. GOVERNING LAW: This Agreement and all rights, obligations and liabilities arising hereunder shall be construed and enforced in accordance with the laws of the State of Texas. Venue of any action hereunder shall be in Harris County, Texas. 15. ATTORNEYS FEES: In the event it becomes necessary to commence any proceeding or actions to enforce the provisions of this Employment and Lease Agreement, the Court before whom the same shall be tried, may award to the prevailing party all costs and expenses thereof, including but not limited to, reasonable attorney's fees, the usual, customary and lawfully recoverable Court costs, and all other expenses in connection therewith. 16. INDEMNITY: Employee agrees to save and hold harmless City from any loss, claim, or liability, including expenses of litigation and reasonable attorney's fees, which the City may incur, by reason of any act, negligence, or omission, of Employee, 11 . e in connection with this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Employment and Lease Agreement the date first above written. "EMPLOYER" CITY ,OF LA PORTE {' By: ~ T: \.\~ Rob r T. Herrera City Manager "PROFESSIONAL" and "LESSEE" ~~//t2 ATTEST: ~ . , d:IiJ~ JI~IJ~ Ma ~a Gillett City Secretary Knox W. ASKins City Attorney APu 12