HomeMy WebLinkAboutContract 31681-A5 CITY SECRETARY
CONTRACT NO. ZVo
THIRD MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF FORT WORTH AND
2TENNIS.NET, L.L.C.
STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF TAR-RANT
This THIRD MEMORANDUM OF UNDERSTANDING ("Third M.O.U.") is made and entered
into by and between THE CITY OF FORT WORTH ("CITY"), a home-rule municipal corporation of
the State of Texas, acting by and through its duly authorized Assistant City Manager, and
2TENNIS.NET, L.L.C. ("CONTRACTOR"), a Texas limited liability company, acting by and
through its duly authorized President
WHEREAS, on April 5, 2005, the Fort Worth City Council approved M&C C-20641,
which authorized execution of an agreement with CONTRACTOR for management of
operations at the McLeland Tennis Center; and
WHEREAS, pursuant to this authority, the CITY entered into a Management Contract
with CONTRACTOR, the same being City of Fort Worth City Secretary Contract No. 31681,
(the "CONTRACT"); and
WHEREAS, following expiration of the final renewal option of the CONTRACT, the
CITY and 2TENNIS.NET, L.L.C. entered in to two Memoranda of Understanding, the same being
City of Fort Worth City Secretary Contract Nos. 31681-A3 and 31681-A4, to allow the parties to
continue their operating relationship until such time as a new long-term contract with an
operating vendor could be negotiated and put into effect; and
WHEREAS, the Second Memorandum of Understanding expires September 30, 2011,
and a new, long-term contract has not been finalized; and
WHEREAS, the parties wish to enter into this Third M.O.U. so that their current
operating relationship can continue while the City continues to pursue efforts to secure a new,
long-term contract.
Cite of Fort Worth Third MOU McLeland Tennis Center -
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NOW THEREFORE, for and in consideration of the mutual covenants, promises and
agreements contained herein, the CITY and CONTRACTOR do hereby covenant and agree as
follows:
1. Term of Third M.O.U.
1.01 This Third M.O.U. shall govern the obligations and duties of the parties
with respect to operation and management of the McLeland Tennis Center ("Center")
for a period beginning October 1, 2011, and ending June 30, 2012 (the "Term"),
unless terminated earlier in accordance with Section 1.02.
1.02 Either party may terminate this Third M.O.U., with or without cause, by
providing the other party at least thirty (30) days' advance written notice of the intent
to terminate.
2. Right to Audit
2.01 CONTRACTOR agrees that the CITY shall, until the expiration of three
(3) years after final payment under this Third M.O.U., have access to and the right to
examine any directly pertinent books, documents, papers, and records of the
CONTRACTOR involving transactions relating to this Third M.O.U., the Second
Memorandum of Understanding, the First Memorandum of Understanding, City
Secretary Contract No. 31681, or all of these. Such records include, but are not
limited to, those associated with revenues and expenses of pro shop operations and
any special events conducted. CONTRACTOR agrees that the CITY shall have
access during normal working hours to all necessary CONTRACTOR facilities and
shall be provided adequate and appropriate workspace in order to conduct audits in
compliance with the provisions of this section. The CITY shall give CONTRACTOR
reasonable advance notice of intended audits.
2.02 CONTRACTOR shall require all of its subcontractors to include in their
subcontracts a grant of audit rights in favor of City in substantially the same form as
above.
3. Applicability of Other Terms of City Secretary Contract No. 31681
The CITY and CONTRACTOR agree to continue to operate under and be bound by
all terms and provisions of City Secretary Contract No. 31681 during the Term of this
- Second M.O.U. save and except "SECTION 3. TERM." A copy of City Secretary
Contract No. 31681 is attached hereto as Exhibit A and incorporated herein for all
purposes as though it were set forth at length.
City of Fort Worth Third MOU—McLeland Tennis Center
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IN WITNESS WHEREOF, the parties hereto have executed this agreement this ko day of
Jc�nucuy , 2012
CITY OF FORT WORTH 2tennis.net,L.L.C. (CONTRACTOR)
By: t,t By;
Susan 41Ads Thomas Buell
Assistant City Manager President
AT T: 45 t IFOPI 6629 Crooked Stick Dr.
��*11 oo°°oo0000 Fort Worth, Texas76132
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��CitSecretary d� x�
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APPROVED rj"TO FORM ��
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Denis cElroy
Assistant City A ey
Original contract - M&C: C-20641
City of Fort Worth Third MOU McLeland Tennis Center
Page 3 of 3
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CITY SECRETARY
CONTRACT NO. 1
MANAGEMENT CONTRACT
MCLELAND TENNIS CENTER
1600 WEST SEMINARY DRIVE
FORT WORTH,TEXAS
THIS CONTRACT is made and entered into between the City of Fort Worth, a home-rule
municipal corporation situated in Tarrant, Denton and Wise Counties, Texas (hereinafter referred to as
"City"), acting herein by and through Libby Watson, its duly authorized Assistant City Manager, and 2
tennis.net, Inc., a Texas corporation doing business in Texas, through Thomas Buell, its duly authorized
President,whose principal place of business is located at 6629 Crooked Stick Dr.,Fort Wortb,TX 76132
(hereinafter referred to as"Contractor").
That for and in consideration of the mutual covenants and agreements herein contained,and other
good valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereto do hereby covenant and agree as follows:
SECTION 1.
SERVICES OF CONTRACTOR
City hereby grants to Contractor, as an independent contractor, the right to operate and manage
the municipal tennis facility known as the McLeland Tennis Center(hereinafter referred to as "Center")
located at 1600 West Seminary Drive,Fort Worth,Tarrant County,Texas and Contractor hereby agrees to
manage and operate the Center in accordance with terms of this agreement.
SECTION 2.
CHARACTER AND MINIMUM EXTENT OF CONTRACTOR'S SERVICE
(1) (a) Contractor shall operate the Center as a public municipal tennis facility open
for daily play by the members of the general public, seven days a week during
at least the minimum hours stated in(e)below.
(b) The Contractor shall provide adequate staff to efficiently service customers at
the center during hours of operation.
(c) At the Contractor's discretion, Contractor may close the Center any, or part of,
all eight(8)City holidays: New Year's Day(January 1), Martin Luther King,
Jr. Day (Third Monday in January), Thanksgiving Day (Fourth Thursday in
November)and Friday after Thanksgiving,and Christmas Day(December 25).
Memorial Day (Fourth Monday in May), Labor Day (First Monday in
September).
(d) The Contractor may close or partially close, the center for inclement weather
(snow, ice, or courts to wet for play) or similar other causes. In addition,
Contractor may elect to close the facility during the first week of Contract Year
I to facilitate Contractor's transition into the facility. Contractor shall notify the
City of any court and/or facility closures due to weather or any unforeseen
circumstances.
(e) Contractor acknowledges that the current operating hours of the center are
8:30 a.m to 12:30 p.m. and 5:00 p.m. to 10:00 p.m. Monday through Friday,
and 8:00 a.m. to 5:00 p.m. on Saturday and Sunday. The Contractor may
change the hours at their discretion to maximize the use of the Center,
however, in no event shall the Contractor reduce the standard operating hours
of the Center to less than sixty (60) hours per week without prior written
consent of the Director of Parks and Community Services.
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(2) (a) Contractor shall provide at least one Tennis Professional(s) for the Center 20
hours per week during the entire term of this contract to instruct individual and
group lessons. Tennis Professional(s) shall be on duty and available a
minimum of 40 hours per week during the hours the center is open for
business. The Tennis Professional(s) shall have current membership in the
United States Tennis Association(USTA) and certification through the United
States Professional Tennis Association(USPTA). The Contractor himself may
act hereunder as the Tennis Professional.
(b) Contractor shall provide at least one fee based session of group tennis lessons
for the beginner and advanced beginners levels for children and adults during
the spring,summer and fall seasons.
(c) Contractor shall provide at least one fee based tennis clinic for the public each
spring, summer and fall, and at least one free tennis clinic during the summer
for City of Fort Worth recreation centers and Youth Sports Program.
(d) Contractors shall provide a minimum of 2 outdoor courts for the City of Fort
Worth Summer Day Camp tennis program, which runs from the first week of
June to the second week of August. In addition, the contractor shall make any
equipment available (used tennis balls and secondary tennis racquets) upon
request from the city.
(3) (a) Contractor shall conduct a minimum of five (5) tennis leagues per year, with
each league being of six(6)to eight(8)weeks in duration,if registration
perrnits. Contractor shall advertise all information pertaining to leagues and
clinics through the Fort Worth Tennis Association and local USTA chapter.
(b) Leagues shall consist of Men's and Women's(singles,doubles,mixed doubles)
and Junior Team Tennis.
(c) The levels of play in each league shall be:
I. Adult: Advanced Beginner(National Tennis Rating
Program[NTRP]2.5-3.0),Intermediate(NTRP 3.0-3.5),
Advanced Intermediate(NTRP 3.5 4.0),and Advanced
(NTRP 4.0 and up).
II. Junior team tennis provided by age divisions.
(d) If,at the time when leagues are being formed,good faith efforts are made by
Contractor to recruit, without success, for a particular type or level of play,
Contractor has the discretion to choose to not offer that type or level of league
play at that time.
(4) Contractor shall conduct a minimum of four (4) local tennis tournaments,
including a City tournament annually, in conjunction with the Fort Worth
Tennis Association. The divisions for tournaments shall be Men's Women's,
Junior Girl's and Junior Boy's.AN divisions must be represented at tournament
level at some time during the year,in at least one tournament event. Contractor
shall advertise all information pertaining to tournaments through the Fort
Worth Tennis Association and local USTA chapter. The contractor shall also
work to see that the events are publicized in the local media.
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(5) Contractor shall provide, manage and operate a Pro Shop at the Center. At a
minimum,the Pro Shop shall carry the following items on a regular(in stock at
all times) basis: tennis rackets, and tennis accessories (including tennis balls,
grip tape, head tape, vibration dampers, wrist and head bands, and other
miscellaneous items). The Pro Shop shall also provide tennis racket stringing
and repair. Contractor shall have the exclusive right to sell or rent tennis-
related equipment at the Center.
(6) Contractor shall have the exclusive right to all food and drink concessions at
the Center.Contractor shall provide food service or snack service at the Center.
Contractor shall either provide a food service area consisting of foods prepared
at the center, or at a minimum, a snack service consisting of an assortment of
soft drinks in vending machines (including caffeine-free, diet, .cola, non-cola,
and non-carbonated) and an assortment of snack foods (including cookies,
crackers, chips,nuts, cakes, and candy bars) in stock at all times. No chewing
gum shall be provided. Contractor shall not sell or provide any alcoholic
beverages at the Center nor at any time permit the possession or consumption
of alcoholic beverages on the premises.
(7) Contractor may,at their discretion,provide for additional or other lessons(both
group and private), clinics, leagues, tournaments, services and merchandise,
consistent with the provisions of this agreement.
(8) Contractor is authorized to enforce any applicable ordinances, rules and
regulations for tennis operations, which are not superseded by the terms of the
contract.
(9) To ensure the availability of the indoor tennis courts for use by public, the
public may reserve indoor tennis courts for use up to six(6) days in advance.
Subject to advance reservation of the indoor tennis courts by the public,
Contractor, his agents, representatives, servants and employees (including the
Tennis Professional)may reserve an indoor tennis court up to twenty-four(24)
hours in advance for program and/or lessons.
SECTION 3. TERM
(1) Except as provided for in subparagraph (b) below, this contract shall be for a
three(3)year term,beginning on April 15,2005 and ending on April 14, 2008.
The contract may be renewed for two (2) consecutive one (1) year renewal
options after the primary term, by mutual agreement between the City and the
Contractor. As used herein, the term "Contract Year" shall mean a period
beginning on April 1 of each year and ending on March 31 of the same year,
excepting the first week of Contract Year 1 to facilitate transition of new
contractor.
(2) During the first thirty-six (36) months of this contract, either party may
terminate this contract for any reason by giving the other party at least six (6)
months advance written notice of the intent to terminate.
SECTION 4. PAYMENTS TO CITY
(1) For the first year of the contract,20%of the Contractor's annual net revenue or
a minimum amount of$500.00 or whatever amount is less, shall be paid by
Contractor on the last month of the contract year as rental for the Center.
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(2) Annual guaranteed minimum amounts by Contractor as rental for the Center
for subsequent years are as follows:
Contract Ye az Guaranteed Annual Minimum
2 $1,000
3 $1,000
(3) The guaranteed annual minimum rental in years 2 through 5 as provided in(2),
above, shall be paid in twelve equal monthly installments, in advance on or
before the tenth (100) of each month. In the event that any payment is not
made as specified herein, a late payment charge of twelve percent (12%)
annually shall be charged and calculated from the date payment was required to
be made.Payments should be remitted to the Athletic Coordinator of the City
of Fort Worth located at 600 Congress Street,Fort Worth,Texas 76107.
SECTION 5. PAYMENTS TO CONTRACTOR
(1) The City shall pay to the contractor, a maximum of $4,000 for court fees,
utilized by the Fort Worth Independent School District (FW.ISD) for daily
practice. Contractor will remit an itemized invoice to City on a monthly basis
indicating FWISD daily practice times and dates. Only practice play by the
FWISD is shall be applicable and reimbursed to the Contractor. FWISD
tournaments or other special events shall be charged to the FWISD Athletic
Office. Invoices for tournaments or other special events shall be remitted to the
FWISD at 1501 University Drive,Fort Worth,TX 76107.
SECTION 6. INSURANCE AND RESPONSIBILITY
(1) During the term of this contract, Contractor shall maintain in full force and
effect, at his own cost and expense, the following minimum insurance
coverage:
I. Worker's Compensation Insurance-Contractor shall maintain and shall
require any and all subcontractors to maintain worker's compensation
insurance in the minimum statutory amounts for all "employees" of
Contractor or any subcontractor employed on the premises.
Employer's liability shall be maintained at the following limits:
$100,000 each accident /occurrence, $100,000 disease per each
employee and$500,000 disease policy limit.
II, Commercial General Liability Insurance-Contractor shall maintain
commercial general liability insurance with no exclusions in the
policy in at least the minimum amount of$1,000,000 per occurrence
with an annual aggregate limit of not less than$250,000.
III. Automobile Liability Insurance-Contractor shall maintain automobile
liability insurance in at least the minimum amount of$100,000 on a
combined single limit or $250,000 property damage and $500,000
bodily injury per person per occurrence. A commercial business
policy shall provide coverage on"Any Auto", defined as autos owned,
hired and non-owned.
(2) Contractor will be responsible for any property damage to the facility up to a
limit of$250,000. The City of Fort Worth shall retain responsibility for Fire
and Extended Coverage Insurance on the Center itself and all fixtures,
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equipment and other contents of the Center owned by the City. Contractor
shall be responsible for any contents of the Center not owned by the City and
should obtain Fire and Extended Coverage Insurance therefore.
(3) Contractor shall be responsible for any and all intentional or negligent acts or
omissions of Contractor,his employees,agents,contractors, and
subcontractors.
(4) Additional Insurance Requirements
1. The City,its officers, employees and servants shall be endorsed as an additional insured
on all insurance policies excepting employer's liability insurance coverage under
Contractor's workers'compensation insurance policy.
2. Certificates of insurance shall be delivered to the City of Fort Worth, Parks and
Community Services Department, 1000 Throckmorton Street, Fort Worth, TX 76102,
contemporaneously with the execution of the contract.
3. Any failure on part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirements specified herein.
4. Each insurance policy shall be endorsed to provide the City a minimum thirty days
notice of cancellation,non-renewal,and/or material change in policy terms or coverage.
A ten days notice shall be acceptable in the event of non-payment of premium.
5. Insurers must be authorized to do business in the State of Texas and have a current A.M.
Best rating of A:VII or equivalent measure of financial strength and solvency.
6. Deductible limits, or self-funded retention limits, on each policy must not exceed
$10,000.00 per occurrence unless otherwise approved by the City.
7. Other than worker's compensation insurance, in lieu of traditional insurance, City may
consider alternative coverage or risk treatment measures through insurance pools or risk
retention groups.The City must approve in writing any alternative coverage.
8. Workers' compensation insurance policy(ies) covering employees at the Tennis Center
shall be endorsed with a waiver of subrogation providing rights of recovery in favor of
the City.
9. City shall not be responsible for the direct payment of insurance premium costs for
insurance.
10. All insurance policies shall each be endorsed to provide that such insurance is primary
protection and any self-funded or commercial coverage maintained by City shall not be
called upon to contribute to loss recovery.
11. During the term of the contract, all known loss occurrence which could give rise to a
liability claim or lawsuit or which could result in a property loss shall be reported to the
Parks and Community Services Department.
12. Upon the request of City, complete copies of all insurance policies required by these
contract documents will be provided to the City.
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SECTION 7. INDEMNIFICATION
CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY,
ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS
AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND
EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE
FOR PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR
LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS)
AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE
TO,ARISE OUT OF OR BE OCCASIONED BY(i) CONTRACTOR'S BREACH
OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)
ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT
OF CONTRACTOR, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES,
CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS,
RELATED TO THE MANAGEMENT OF THE MCLELAND TENNIS CENTER
OR THE PERFORMANCE OF THIS,AGREEMENT; EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY
TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE
CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE
CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OF BOTH CONTRACTOR AND CITY, RESPONSIBILITY, IF
ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL
BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL
IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS.
SECTION 8. UTILITIES
The City shall be responsible for all water,sewer,electricity,gas, waste disposal utility,
and ice machine rental expenses.Contractor shall be responsible for all communications
utility expenses, including local and long distance telephone charges. Contractor shall
make reasonable efforts to minimize the use of utilities by insuring light and water are
shut off during non-use periods. Contractor will provide at their own expense,
computerized point of sale cash register and any other computers utilized for back office
staffing. Contractors will provide, at their own expense, an alarm service for the
Center.
SECTION 9. COURT FEES
The Director of the Parks and Community Services Department must approve court use
fees, in writing, in advance. Contractor may set any other fees, including lessons,
tournament,and league fees,merchandise, food and beverages.
SECTION 10, TAXES
Contractor shall be responsible for all taxes associated with the operation and
management of the Center, including, without limitation,any income, sales,use or other
taxes, and any and all permits, licenses and fees associated with the operation and
management of the Center.
SECTION 11, MAINTENANCE;ALTERATION TO PREMISES
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(1) Contractor shall be responsible for trash, litter, vegetation, standing water, and for all
day-to-day maintenance of the tennis courts and the interior building structure. The
Contractor shall keep the facility clean in accordance with the Parks and Community
Services Department's facility cleanliness standards. The Contractor shall be
responsible for repairs to the tennis courts and the necessary replacement of nets and
wind screens (up to $2,500.00 per year) due to ordinary wear and tear. City shall be
responsible for actual physical condition of the tennis courts, for maintaining the
outdoor grounds of the Center including lawns, landscaping and lighting, replacing
vandalized nets and windscreens,and for court resurfacing.
(2) Contractor shall not make or cause to be made any alterations, additions or
improvements, or install or cause to be installed any trade fixtures, shades or awnings,
or make any changes or additions to the Center without prior written consent of the
Park and Community Services Director.
(3) All physical alterations and improvements to the facility made by Contractor upon
approval from the Parks and Community Services Director shall remain the property of
City,after the term of the contract has expired. Such alterations and improvements shall
not be removed from the property prior to the end of the term without the prior written
consent of the Parks and Community Services Director.Upon expiration of this contract,
Contractor shall remove all decorations and non-permanent additional fixtures as
directed by the Parks and Community Services Director. Contractor shall restore the
property to the same condition as it was in at the commencement of the contract,
ordinary wear and tear excluded. All decorations and non-permanent fixtures not
removed shall,upon expiration of the contract term,become the property of the City.
(4) City agrees to provide Contractor a clean, litter-free building at time of possession. City
will re-key all locks at the facility prior to contractor taking possession.
(5) City agrees to make a"good faith" effort to resurface a minimum two (2) courts each
fiscal year through the City's annual budget process, dependent on the appropriation of
funds for said project by the City Council. It is understood and agreed, however, that
City does not guarantee that any courts will be resurfaced and cannot guarantee that the
City Council will appropriate the funds for such resurfacing each fiscal year.
SECTION 12. FORCE MAJEURE
It is expressly understood and agreed by the parties to this Agreement that if the
performance of any obligations hereunder is delayed by reason of war,civil commotion,
acts of God, inclement weather,governmental restrictions, regulations,or interferences,
fires, strikes, lockouts, national disasters, riots, material or labor restrictions,
transportation problems, or any other circumstances which are reasonably beyond the
control of the party obligated or permitted under the terms of this Agreement to do or
perform the same,regardless of whether any such circumstance is similar to any of those
enumerated or not, the party so obligated or permitt ed shall be excused from doing or
performing the same during such period of delay, so that the time period applicable to
such design or construction requirement shall be extended for a period of time equal to
the period such party was delayed.
SECTION 13, RECORDS AND AUDITS
Contractor shall keep full, complete and proper books, records and accounts of gross
receipts, both for cash and on credit, of each separate activity, and shall provide a
written monthly summary report to the Athletic Coordinator on a monthly basis. Said
books, records and accounts, including any sales tax reports that Contractor may be
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required to furnish to any government or governmental agency, shall at all reasonable
times be available for inspection by the City and its authorized representatives and
agents. Contractor agrees to maintain financial records pertaining to the operation and
management of the center for a period of three (3) years after the conclusion of any
Contract Year.
SECTION 14. NON-DISCRIMINATION/EQUAL OPPORTUNITY
Contractor shall not discriminate on the basis of race, color, creed, religion, sex, age,
military status, handicapped status, sexual orientation or national origin in the
performance of this contract. Contractor shall be subject to the City's affirmative action
policy to the extent that such policy pertains to tennis facility operations. Contractor
shall also be subject to the Disadvantaged Business Enterprise(DBE)policy of the City
of Fort Worth, including any amendments thereto, and shall require compliance with
said DBE policy by any subcontractor performing hereunder.
Contractor shall comply with all local, state and federal laws, rules and regulations
pertaining to non-discriminate and equal opportunity in the areas of employment,
subcontracting and use of City of Fort Worth facilities.
SECTION 15. AMERICANS WITH DISABILITIES ACT
In accordance with the provisions of the Americans With Disabilities Act of 1990
(ADA), Contractor warrants that he and any and all of his subcontractors will not
unlawfully discriminate on the basis of disability in the provision of services to the
general public, nor in the availability, terms and/or conditions of employment for
applicants for employment with, or employees of the Contractor or any of his
subcontractors. Contractors warrants he will fully comply with ADA's provisions and
any other applicable federal, state and local laws concerning disability and will defend,
indemnify and hold City harmless against any claims or allegations asserted by third
parties or subcontractor's alleged failure to comply with the above-referenced laws
concerning disability discrimination in the performance of this contract.
SECTION 16. ASSIGNMENT
Contractor shall not assign,subcontract,sublet or transfer any or all of his rights or
responsibilities under this contract without the prior written consent of the City,and any
attempted assignment,subcontract,sublease or transfer of all or any part hereof without
such prior written consent shall be void.
SECTION 17. INDEPENDENT CONTRACTOR
Contractor shall operate under this contract as an independent contractor as to all rights
and privileges contained in this contract, and not as an agent, representative, servant or
employee of the City. Subject to the terms of this Contract, Contractor shall have the
right to control the details of performance hereunder. City and Contractor agree that the
doctrine of respondent superior shall not apply as between City and Contractor, and that
Contractor shall be solely responsible for any and all acts or omission of himself, his
agents,servants,employees, contractors or subcontractors; and that nothing herein shall
be construed as creating a partnership or joint enterprise between City and Contractor.In
the event of a dispute,any doubt as to the construction of this contract shall be resolved
so as to maintain Contractor's status as an independent contractor.
SECTION 18. NATURE OF CONTRACT
8
It is expressly understood and agreed that this Agreement is a contract for the operation
and management of the Center, and not a lease or conveyance of any interest in the
property.
SECTION 19. SIGNS
Contractor shall not place, or cause or permit to be placed any sign or advertisement
upon the premises or upon any property of the City without the prior written consent of
the City's Athletic Superintendent.
SECTION 20. CONDITION OF CENTER;WARRANTIES EXCLUDED
Contractor hereby represents that he has inspected the Center and improvements
thereon, that he finds same suitable for all activities and operations agreed to
contemplated hereunder, and that he takes the Center and all improvements thereon in
an"as is"condition. City'hereby expressly excludes any and all warranties in regard to
the Center, including without limitation, any warranty of title, or fitness for any
particular purpose.
SECTION 21. COMPLIANCE WITH LAWS
Contractor covenants and agrees that it shall not engage in any unlawful use of the
Premises. Contractor further agrees that it shall not permit its officers,agents,servants,
employees, contractors, subcontractors, patrons, licensees or invitees to engage in any
unlawful use of the Premises and Contractor immediately shall remove from the
Premises any person engaging in such unlawful activities. Unlawful use of the Premises
by Contractor itself shall constitute an immediate breach of this Lease. Contractor
agrees to comply with all federal, state and local laws; all ordinances, rules and
regulations of City; all rules and regulations established by the Director of Parks and
Community Services; and all rules and regulations adopted by the City Council
pertaining to the conduct required at the Center,as such laws, ordinances, rules and
regulations exist or may hereafter be amended or adopted. If City notifies Contractor or
any of its officers, agents, employees, contractors, subcontractors, licensees or invitees
of any violation of such laws, ordinances, rules or regulations, Contractor shall
immediately desist from and correct the violation.
SECTION 22. BREACH,TERMINATION AND REMEDIES
(1) Condition of Default. The following conditions will constitute a breach of this contract
and default hereunder:
(a) Failure of Contractor to make annual rental payments or monthly gross revenue
payments,or to fulfill any other monetary obligation of Contractof to City, which failure
is not cured within thirty(30)days.
(b) Failure of either party to perform any of its other non-monetary obligations under this
contract when due or called for,and the party in default fails to cure such non-monetary
default within thirty (30) days after written notice from non-defaulting party of such
non-monetary default.
(2) Termination: Remedies. If any of the conditions identified in subsection (a), above,
should occur and the party in default does not cure the default within the time periods as
set out therein,the non-defaulting party may elect to terminate this contract immediately
and seek all other remedies provided under law and equity. Waiver of any breach does
not constitute any continuing waiver or a waiver of any subsequent breach of this
contract.
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SECTON 23. NO LIENS ON PROPERTY
(a) Contractor shall take no action that creates a lien on the property. In the event any such
purported lien is created or attempted to be created,the Contractor shall take any and all
necessary steps to remove said lien within ten(10)days of its creation.
(b) Creation of any lien or purported lien on the premises,or any other City property by the
Contractor, which is not removed within the time period set forth in Section 23 will be
considered a breach of contract.
SECTION 24. NON-APPROPRIATION
If for any reason,at any time during any term of this Agreement,the City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement,the
City may terminate this Agreement to be effective on the later of(i)thirty(30)days
following delivery by the City to Contractor of written notice of the City's intention to
terminate,or(ii)the last date for which funding has been appropriated by the City Council
for the purposes set forth in this Agreement.
SECTION 25. SURRENDER OF PREMISES
Contractor shall peaceably and immediately give up and surrender to City the premises
and every part thereof at the termination of this contract.
SECTION 26. LICENSES,PERMITS AND FEES
Contractor agrees to obtain and pay for all licenses,permits,certificates,inspections,
and all other fees required by law or otherwise necessary to perform the services
prescribed for Contractor to perform hereunder.
SECTION 27. SUCCESSORS AND ASSIGNS
All terms,covenants and agreements contained in this contract shall be binding upon
and insure to the benefit of the successors and assign of the respective parties hereto.
SECTION 28. APPLICABLE LAW;VENUE
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be
construed in accordance with the laws of the State of Texas.
SECTION 29. NOTICES
(1) All notices,demands,requests or replies provided for or permitted in this contract shall
be in writing and may be delivered by one of the two following methods:
(a) By personal delivery with receipt acknowledged in writing;or
(b) By deposit with United States postal service as certified or registered mail,return receipt
requested,postage prepaid to addresses stated below.
10
Notice deposited with the United States Postal Service in the manner described above
shall be deemed effective three business days after deposit with Postal Service.Notice
by personal delivery shall be deemed effective at the time of personal delivery.
(2) For purposes of notice,demand,request,reply or payment the addresses of the parries
shall be:
City: David Parise,Athletic Superintendent
600 Congress Street
Fort Worth,Texas 76107
and
City of Fort Worth
Attn:Parks and Community Services Director
1000 Throckmorton Street
Fort Worth,Texas 76102
With copy to:City Attorney at same address
Contractor: 2 temus.net,Inc.
CIO Thomas Buell,President
6629 Crooked Stick Drive
Fort Worth,TX 76132
Each party shall have the right to designate a different address within the United States of America by
the giving of notice in conformity with this section.
SECTION 30. SECTION HEADINGS
The section headings contained in this contract are for convenience in reference onlyand are not
intended to define or limit the scope of any provision of this contract.
Governmental Powers: It is understood that by execution of this Agreement,the City does not waive or
surrender any of it governmental powers.
IN WITNXfw the parties hereby have executed this contract in multiple originals on this
date,the 2005.
C ITY FORT WORT 2tennis.net,Inc.
G
Libby WatsVn Thomas Buell,President
Assistant City Manager
T� � O D AS T RM LEGALITY:
City Secretary Assistant ity A rney
STATE OF TEXAS
COUNTY OF TARRANT
ow IF contr Ct AuthorzatioII Gate
STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day
personally appeared Libby Watson,known to me to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same as the act and deed of
the City of Fort Worth,and as the Assistant City Manager thereof,for purposes and consideration therein
expressed and the capacity therein stated
GIVEN UNDER MY HAND SEAL OF OFFICE this �Mrday Of 2005.
k Notary Public in and for
ROSELLABAHNEB r'Y
MY COMMISSION EXPMS the State of Texas
March 31,2D09
STATE OF TEXAS
COUNTY OF TARRANT
BEFORE undersi ed a ority, a Notary Public in and for the State of T as, on this
day personally appeare known to me to be the person w me is bsc ' d to
the foregoing instrume and ac ow edged to me that the same was the act of , and
that he executed the same as the act'of said 2tennis.net, Inc. for the p oses an consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND SEAL OF OFFICE this day o 5.
of ir.in and for
the State Of Texas
IleJEAN COLEMAN
NO=FtWSTATEOFTE H
COMMISSION 1A►IaE1;
F69RUARY 19.2007
END
In
12 R. -3 y I I i.,
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved As Amended on 4/5/2005
DATE: Tuesday,April 05, 2005
LOG NAME: 8081 MCLELAND REFERENCE NO.: C-20641
SUBJECT:
Authorization to Execute Contract with 2Tennis.Net Corporation for Management of Operations at
McLeland Tennis Center
RECOMMENDATION:
It is recommended that the City Council:
1) Authorize the City Manager to execute a contract with 2tennis.net Corporation for management of the
operations McLeland Tennis Center; and
2) That the term of the contract be for three years, with options to renew for two additional one year periods
by mutual written consent of both parties.
DISCUSSION:
At the expiration of the previous contract on December 31, 2004, the Parks and Community Services
Department staff assumed operational control of the McLeland Tennis Center. During this interim period,
court lights have been repaired, courts resurfaced and a new alarm system installed.
In January 2005, a Request for Proposal (RFP) was issued to prospective bidders to provide the
management and operation of the McLeland Tennis Center. The RFP was placed in the Commerical
Recorder and was advertised from January 3, 2005 to January 27, 2005; two proposals were received. A
Committee consisting of the City staff, the Youth Sports Council Executive Director and the Fort Worth
Independent School District, Associate Athletic Director, evaluated the proposals. Using the criteria
outlined in the RFP staff determined that 2tennis.net Corporation best met the needs of the City to manage
the tennis operations at McLeland Tennis Center.
The terms of the contract provide for the contractor to assume all personnel costs related to the day-today
operations and retain all revenues generated at the facility. A written request and approval must be
obtained from the Parks and Community Services Department Director prior to an increase in court fees. In
addition, the contractor would pay the City$500 or 20% of the annual net revenue, whichever is less, for the
first year and $1,000 per year for the second and third years.
The terms of the contract also require the contractor to provide insurance coverage, keep adequate books
and records, provide tennis lessons, clinics, leagues, summer day camp instruction and tournaments. The
City will be responsible for utilities, replacement and maintenance of nets and windscreens and the external
grounds of the McLeland Tennis Center. The City is also responsible for player credits by the Fort Worth
Independent School District, of up to$4,000 per year.
The McLeland Tennis Center is located in Council District 9 and serves the entire City.
Logname: 8081MCLELAND Pagel of 2
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated, of
the General Fund. The Parks and Community Services Department will be responsible for the collection of
funds due to the City under this contract.
TO Fund/Account/Centers FROM Fund/Account/Centers
GG01 460855 0809081 $500-00 GG01 539120 0808041 $4,000.00
Submitted for City Manager's Office by: Libby Watson (6140)
Originating Department Head: Randle Harwood (871-5704)
Additional Informatlon Conti Mark Woolsey (871-5714)
Logname: 8081 MCLELAND Page 2 of 2