HomeMy WebLinkAboutContract 48111 S
��C IVLp , CITY SECRETARY Q i
CONTRACT NO. O
AUG 23 2016 MANAGEMENT AGREEMENT FOR
C1IY0FFORTWoRTy MCLELAND TENNIS CENTER
CITYSFok�RY
THIS MANAGEMENT AGREEMENT FOR MCLELAND TENNIS CENTER
("Agreement") is made and entered into b_v and between the City of Fort Worth, a home-rule municipal
corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City
Manager, and Lifetime Tennis, Inc. a Texas corporation ("Contractor"), acting by and through Matt
Hanlin, its President.
WHEREAS, the City owns certain dedicated parkland known as Rosemont Park, 1400 West
Seminary Drive, Fort Worth, Texas 76115 ("Park"),
WHEREAS, a portion of the Park has been set aside for the operation of a municipal tennis
facility known as the McLeland Tennis Center, 1600 West Seminary Drive, Fort Worth, Texas 76115,
WHEREAS, City desires to provide tennis services for the convenience and enjoyment of the
Public,
WHEREAS. Contractor is engaged in professional tennis management services and is prepared,
equipped, and qualified to undertake such operations, and provide all services required hereunder at the
McLeland Tennis Center.
WHEREAS, the parties wish to execute an agreement that defines the rights and responsibilities
of each with respect to the management and operation of the McLeland Tennis Center, and
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
SECTION 1.
USE OF THE CENTER
1.1 City hereby grants to Contractor the exclusive right to operate and manage the McLeland Tennis
Center, 1600 West Seminary Drive, Fort Worth, Texas 76115 ("Center"), and Contractor hereby agrees to
manage and operate the Center in accordance with the terms and conditions of this Agreement.
1.2 The Center means any area where Contractor's tennis complex management and operation
activities are carried out with regard to this Agreement. The Center shall include any and all buildings,
improvements (including, but not limited to, all indoor and outdoor tennis courts) and landscaping on the
property designated as the Center, as generally depicted on the site map in Exhibit A, which is attached
hereto and incorporated herein for all purposes.
1.3 The Center shall be used only and exclusively for tennis operations and for such other related
purposes for which express approval is granted by the Director of the City's Park and Recreation
Department or that person's authorized designee ("Director").
SECTION 2.
TERM
2.1 This Agreement shall be binding on the final date of execution by the parties and effective for a
primary term of five (5)years, beginning on Septembe 1 2016 and ending on August 31, 2021 ("Primary
OFFICIAL RECORD
Management Agreement for McLeland Tennis Center CITY SECRE'T'ARY I 1 31
FT. WORTH, TX
Term"), unless terminated earlier as provided herein.
2.2 Unless previously terminated, the City and Contractor, by mutual written consent, may elect to
extend this Agreement for two (2) successive five-year periods (each a "Renewal Term"). The parties
shall make a good faith effort to notify each other of their intent to renew this Agreement at least one year
prior to the expiration of the then-current term. If the first Renewal Term is not exercised, there shall be
no second Renewal Term. City reserves the right to negotiate or renegotiate any term of this Agreement
prior to exercising any renewal.
2.3 Nothing contained in this Agreement shall prevent the City from competitively bidding the right
to operate and manage the Center in the future.
2.4 As used in this Agreement, the terms "contract year," "year," and "annual" shall refer to a period
beginning on September 1 and ending on August 31 of the following calendar year.
SECTION 3.
CHARACTER AND MINIMUM EXTENT OF SERVICES
3.1 General Operations Requirements
(a) Contractor shall operate the Center as a public municipal tennis facility open to members
of the general public for daily play and available during at least the minimum hours required
under subsection (e) below.
(b) Contractor shall provide adequate staff to efficiently service customers at the Center
during hours of operation.
(c) At Contractor's discretion, Contractor may close the Center during all or any part of the
following eight (8) City-observed holidays: New Year's Day, Martin Luther King, Jr. Day,
Independence Day, Memorial Day, Labor Day. Thanksgiving Day, the Friday after Thanksgiving
Day, and Christmas Day.
(d) Contractor may close or partially close the Center for inclement weather (snow, ice, or
courts too wet for play) or other similar causes. Contractor shall notify the City, in writing, of
any court or Center closures due to weather or any unforeseen circumstances.
(e) Except as otherwise provided in this paragraph, Contractor shall open the Center to the
public for play seven (7) days per week for a minimum of ninety-seven (97) hours per week.
Contractor shall operate the Center from 8:00 a.m. to 10:00 p.m. Monday through Saturday, and
8:00 a.m. to 9:00 p.m. on Sundays. Subject to the ninety-seven (97) hour minimum, Contractor
may change the hours at its discretion to maximize the use of the Center. The Director may, in
his or her sole discretion, provide written authorization for the Contractor to open the Center to
the public for less than ninety-seven (97) hours per week.
(f) Members of the public may reserve tennis courts up to seven (7) days in advance of use.
Unless a tournament has been scheduled in advance of court reservations, Contractor, its agents,
representatives, servants, and employees may reserve outdoor and indoor tennis courts for
programs and lessons up to three (3) months in advance of use or within a timeframe otherwise
set forth by the Contractor. Contractor has the option to make available priority reservation passes
at a nominal fee for patrons.
Management Agreement for Mel-eland Tennis Center 2 of 31
(g) Contractor shall create and maintain a City of Fort Worth website for the Center
dedicated to promoting the Center and any services and activities provided therein. Contractor
will provide uniform resource locator ("URL") links to the City's website, and City will provide
one or more URL links for Contractor's website on City's website.
(h) A general manager shall be on site full-time and shall provide for the customer service
needs of the Center patrons and the Pro Shop. The general manager will ensure excellence in
customer service and provide proof of initial customer service training for Pro Shop staff. It is
expected that customer service and meeting the needs and challenges of the tennis community
will be a prime focus of the general manager.
(1) Contractor shall, in writing, inform the Director of the full name and specific assignment
of each of its key personnel used in the performance of this Agreement. Contractor shall
thereafter notify the Director, in writing, within 48 hours following any such key personnel
changes.
0) The parties acknowledge and understand that the parking associated with the Center is
intended to serve the entire Park; therefore, all parking is on a first come, first served basis and
shall not be reserved specifically for Center use, unless otherwise allowed by the Director in
writing.
3.2 Instructors; Lessons
(a) Contractor shall provide at least one Tennis Professional to offer individual instructions
and group lessons at the Center. Such Tennis Professional shall be on duty and available a
minimum of forty (40) hours per week during the Center's regular hours of operation. Each such
Tennis Professional must have a current membership in the United States Tennis Association and
certification through the United States Professional Tennis Association. An employee or officer
of Contractor may serve as the Tennis Professional, provided that all other requirements under
this paragraph are met.
(b) Contractor shall provide at least one session of fee-based group tennis lessons during the
spring, summer, and fall seasons for each of the following categories: Beginner Player - Child,
Advanced Player- Child; Beginner Player- Adult; and Advanced Player—Adult.
(c) To the extent requested by the Director, in writing, Contractor shall provide (1) at least
one fee-based tennis clinic for the public each spring, summer, and fall; (ii) at least one free
tennis clinic during the summer for City of Fort Worth recreation or community centers; and (iii)
at least one free tennis clinic during the summer for the City of Fort Worth Youth Athletics
Program.
(d) From the first week of June through the second week of August each year, if requested in
writing by the Director, Contractor shall reserve at least two (2) outdoor courts Monday through
Friday for use all day by the City of Fort Worth Summer Day Camp tennis program at no cost to
the City. In addition, upon request from the City, the Contractor shall make available equipment
for use by the program (used tennis balls and secondary tennis racquets).
3.3 League Play
(a) Contractor shall conduct annual tennis leagues in accordance with the requirements of
this subsection.
Management Agreement for McLeland Tennis Center 3 of 31
(b) Contractor shall advertise and make good faith efforts to recruit players for six (6)
leagues, consisting of one in each of the following categories - Men's Singles, Men's Doubles,
Women's Singles, Women's Doubles, Mixed Doubles, and .Junior Team Tennis.
(c) The levels of play in each league shall be:
1. Adult
1. Advanced Beginner(National Tennis Rating Program ('`NTRP") 2.5-3.0)
2. Intermediate (NTRP 3.0-3.5)
3. Advanced Intermediate (NTRP 3.5-4.0)
4. Advanced (NTRP 4.0 and up)
ii. Junior team tennis provided by age divisions.
(d) If Contractor's good faith efforts are unsuccessful in recruiting players for a particular
type or level of league play, Contractor may, after conferring with the Director, choose not to
offer that type or level of league play at that time.
(e) The duration of each league will be contingent on the number of participants.
3.4 Tournaments
(a) Contractor shall make the Center available for a minimum of four (4) local tennis
tournaments annually.
(b) To the extent possible, each division set forth in Section 33(c) must be represented in at
least one tournament event each year. Contractor shall advertise all information pertaining to
tournaments through its website. Contractor shall also advertise all information pertaining to
tournaments through the Fort Worth Tennis Association and local United States Tennis
Association's chapter and shall also work to ensure that the events are publicized in the local
media.
(c) Unless otherwise permitted by the Director, in writing, Contractor shall ensure that all
tournaments pay all applicable fees, including, but not limited to, court fees and tournament fees.
3.5 Pro Shop
(a) Contractor shall operate and manage a Pro Shop at the Center in a quality manner,
comparable to similar facilities and services in the City of Fort Worth and its environs, offering
tennis equipment and accessories for sale or rent. At a minimum, the Pro Shop shall keep the
following items in stock at all times: tennis rackets, tennis balls, grip tape, head tape, vibration
dampers, and wrist bands. The Pro Shop shall also provide tennis racket stringing and repair and
rental of ball machines. Contractor shall have the exclusive right to sell or rent tennis-related
equipment at the Center. The Pro Shop shall remain open during the regular business hours of the
Center. City reserves the right to prohibit the sale or rental of any item of merchandise that is
deemed objectionable or beyond the scope of this Agreement, as determined by the Director in
the Director's sole discretion.
(b) Contractor shall, at all times, post rates and prices for all items offered for sale and all
services offered at the Center.
Manasement Aareement far McLeland Tennis C'cnter 4 43 1
3.6 Concessions
(a) 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, but not limited
to, caffeine-free, diet, cola, non-cola, and non-carbonated) and an assortment of snack foods
(including, but not limited to, cookies, crackers, chips, nuts, cakes, and candy bars) in stock at all
times. No items in glass containers may be offered for sale at the Center. Chewing gum
may not be offered for sale at the Center. Contractor shall not sell, provide, or permit
possession or consumption of any alcoholic beverages at the Center or the Park at any time.
(b) All such products sold or kept for sale by Contractor shall be quality, wholesome and
pure, and shall conform to the applicable Federal, State, and local food laws, ordinances, and
regulations in all respects.
3.7 Additional Services
(a) Contractor may, at its discretion, provide for additional lessons, clinics, leagues,
tournaments, services, and merchandise consistent with the provisions of this Agreement.
(b) Contractor is authorized to enforce any applicable ordinances, rules, and regulations for
tennis operations that are not superseded by the terms of this Agreement.
(c) Contractor shall advertise and promote the Center to foster a favorable business
environment, stimulate patronage, and support City efforts to maximize use of the Center. Such
advertising and promotion shall include, without limitation, all tennis leagues, clinics, lessons,
tournaments, and other programming at the Center. Specifically, and without limitation,
Contractor shall link its website with the City of Fort Worth's website. Contractor shall also
advertise other tennis services on behalf of the Fort Worth Tennis Association and local United
States Tennis Association's chapter. Any advertising or promotional materials posted at the
Center must be on non-permanent signage in the form of removable banners, unless otherwise
agreed to by the Director in writing.
(e) Contractor shall be responsible for providing and maintaining all start-up equipment,
supplies, furnishings, upgrades, and Pro Shop inventory necessary to carry out the terms of this
Agreement.
3.8 Community Outreach
(a) At the beginning of each contract year throughout the Term of this Agreement,
Contractor shall provide the Director with an annual written plan for performing community
outreach to enhance participation in the sport of tennis and drive customers and patrons to the
Center. The plan is subject to review and approval by the Director and may include, without
limitation, the following:
i. Partnering with local independent school districts, local corporations, United
States Tennis Association, Fort Worth Tennis Association, and local
neighborhood associations to create greater exposure for the Center and the game
of tennis, including, but not limited to, hosting social events and tournaments,
Management Agreement for McLeland Tennis Center 5 o1'31
improving court accessibility, offering scholarship programs, providing
equipment, and summer camps.
ii. Home School Ages 6-11. For those homeschoolers looking to fulfill a physical
education requirement.
ill. Mommy and Me: Mother and infant. The parent guides the child through certain
coordination game with the coach helping them.
iv. Hitting the Books: For the local, underprivileged children of Fort Worth, which
may include a free tennis class, free food, and free books.
V. Junior Social Night: A social event for young players. Contractor may have
games, prizes, and food for a low cost or sometimes free in order to grow the
junior social scene at the Centel,.
vi. Buddy-Up Program: A nationally recognized program for Down-Syndrome
effected children.
SECTION 4.
RENTAL PAYMENTS TO CITY
4.1 Contractor shall pay the City rent in the amount of Twenty-Five Thousand Dollars and No
Cents ($25,000.00) per year as set forth below:
(a) For the 2016-2017 contract year, Contractor shall pay rent in the following three
installments:
i. Six Thousand Two Hundred Fifty Dollars and No Cents ($6,250.00) on or
before December 10, 2016.
ii. Six Thousand Two Hundred Fifty Dollars and No Cents ($6,250.00) on or
before March 10, 2017.
iii. Twelve Thousand Five Hundred Dollars and No Cents ($12,500.00) on or
before June 10, 2017.
(b) Beginning September 1, 2017, the annual rent shall be paid in advance in four equal
quarterly installments of Six Thousand Two Hundred Fifty Dollars and No Cents ($6,250.00)
each, with such payments due and payable on or before the tenth (10`f') day of March, June,
September, and December.
4.2 In addition to the rental payments set forth herein, Contractor shall pay the City an annual capital
improvement fee ("CIF"), which shall be Five Thousand Dollar and No Cents ($5,000.00) for the first
contract year and shall increase by One Thousand Dollars and No Cents ($1,000.00) for each
subsequent year of this Agreement, including any Renewal Terms as set forth below:
(a) For the 2016-2017 contract year, Contractor shall either (1) pay to the City the full
$5,000.00, or (ii) expend or cause to be expended at least $5,000.00 on permanent capital
improvements to the Center. Contractor may satisfy the requirements of the foregoing (i) and (ii)
by any combination of (i) and (ii) (i.e., Contractor may pay part of the amount pursuant to
Management Agreement for McLeland Tennis Center 6 of 31
subsection (1) and expend or cause to be expended the remaining amount pursuant to subsection
(ii)). If Contractor decides to pay the full amount per subsection (i), then such payment shall be
due to the City on or before March 10, 2017. if Contractor decides to undertake capital
improvements under subsection (ii), then all such capital improvements shall be constructed on or
before March 10, 2017. To prove the expenditures required under subsection (ii), Contractor
shall submit to the Director a final construction spending report along with receipts documenting
such expenditures on or before April 10, 2017. If any amounts remain due to the City, then such
amounts shall be due and payable within 30 calendar days after receiving written notice from the
City. Expenditures by the Contractor will be applied to offset the $5,000.00 on dollar-per-dollar
basis.
(b) Beginning in the 2017-2018 contract vear (September 1, 2017). Contractor shall pay to
City the annual CIF in full on or before September 10"' of each contract year.
(c) All C1Fs will be used by the City to purchase capital equipment and improvements for
the Center. The Capital equipment and improvements purchased with the CIF shall be the
property of the City and shall not be considered real or personal property of Contractor. It is the
intent of the City to set aside and expend the CIF as set forth herein; however, nothing contained
in this Agreement shall be construed as prohibiting future City Councils from allocating,
appropriating, administrating, or expending the CIF as it may deem appropriate.
4.3 By way of example only, rental and CIF payments (or equivalent capital improvements for the
2016-2017 contract year)for the first five years of this Agreement will be:
Year 1: $25,000 + $5,000 C.I.F. _ $30,000
Year 2: $25,000 + $6,000 C.I.F. _$31,000
Year 3: $25,000 + $7,000 C.I.F. _ $32,000
Year 4: $25,000 + $8,000 C.I.F. _ $33,000
Year 5: $25,000 + $9,000 C.I.F. _ $34,000
4.4 All payments due under this Agreement shall be made payable to the City of Fort Worth and
remitted to the office of the Director at the following address:
City of Fort Worth
c/o Athletics Coordinator
600 Congress Street
Fort Worth, Texas 76107
4.5 Any payment not made by the due date shall bear interest at an annual simple interest rate of
twelve percent(12%) from the due date through and including the date paid.
SECTION 5.
CENTER-RELATED FEES
5.1 Court use fees must be approved, in writing, on an annual basis by the Director. Contractor has
discretion to set all other Center-related fees, including, but not limited to, fees for lessons, tournament
participation, league participation, merchandise, food, and beverage. Contractor shall submit a schedule
of all fees for the upcoming contract year, including proposed court-use fees, on or before August 1 of
each year. Notwithstanding anything to the contrary, Contractor shall not be permitted to increase the
Management Agreement for McLeland Tennis Centcr 7 of 31
current 2016 Center-related fees and prices, including, but not limited, to, court fees, lessons, tournament
fees, league fees, merchandise, and food and beverage, until the beginning of the second contract year
(September 1, 2017).
5.2 The parties acknowledge that the Center is utilized by the Fort Worth Independent School District
("FWISD") for daily tennis practice during the FWISD's annual tennis season. Contractor agrees to waive
practice and tournament court fees for the FWiSD in an amount equal to Four Thousand Dollars
($4,000.00) per contract year.
SECTION 6.
CENTER ADVISORY COMMITTEE
6.1 On or before October 1, 2016, Contractor shall establish a six-member Center advisory
committee comprised of one representative from each of the following organizations: (1) Fort Worth
Tennis Association, (2) Fort Worth Independent School District, (3) Ft. Worth Park and Recreation Sports
Advisory Council, incorporated, (4) Rosemont Neighborhood Association or a different neighborhood
association near the Center, (5) at large appointee of the Director, and (6) Center patron. When
established, the committee will serve as a liaison between the Center's patrons, local neighborhoods, and
City and will (1) recommend Center enhancements, (ii) report facility issues; (iii) suggest program
improvements and league and rule modifications; and (iv) provide feedback to the City regarding overall
operations at the Center. The committee should meet on a bi-monthly basis or more frequently as needed;
however, failure of the committee to meet shall not be deemed a default under this Agreement.
SECTION 7.
INSURANCE AND RESPONSIBILITY
7.1 During the term of this Agreement, Contractor shall procure and maintain at all times, in full
force and effect, a policy or policies of insurance that provide the specific coverages set forth in this
section as well as any and all other public risks related to Contractor's performance of its obligations
under this Agreement. Contractor shall specifically obtain the following types of insurance at the
following limits:
(a) Workers' Compensation Insurance. Contractor shall maintain, and shall require any
and all subcontractors to maintain, workers' compensation insurance in the minimum statutory
amounts for all "employees" of Contractor or any subcontractor employed at the Center or the
Park. Employer's liability shall be maintained at the following limits:
i. $1,000,000.00 each accident/occurrence
ii. $1,000,000.00 disease per each employee
iii. $1,000,000.00 disease policy limit
(b) Commercial General Liability Insurance. Contractor shall maintain commercial
general liability insurance with no exclusions in the policy in at least the minimum amount of:
i. $1,000,000.00 per occurrence
ii $2,000,000.00 annual aggregate limit
(c) Automobile Liability Insurance. Contractor shall maintain automobile liability
insurance in at least the minimum amount of:
i. $1,000,000.00 on a combined single limit
Management Agreement for McLeland Tennis Center 8 o1`31
Or
ii. $250,000.00 property damage per occurrence
acrd
iii. $500,000.00 bodily injury per person per occurrence
A commercial business policy shall provide coverage on "Any Auto," defined as autos owned,
hired, and non-owned.
(d) Commercial Property Insurance. Contractor shall maintain commercial property
insurance covering the Center itself in at least the minimum amount of-
i. $500,000.00 per occurrence
7.2 Requirements Applicable to all Insurance
(a) The City, its officers, employees, representatives, agents, and servants shall be endorsed
as an additional insured on all insurance policies with the exception of workers'
compensation.
(b) Certificates of insurance shall be delivered to the Risk Management Division, 1000
Throckmorton Street, Fort Worth, Texas 76102, with a copy to the City of Fort Worth,
Park and Recreation Department, 4200 S. Freeway, Fort Worth,Texas 76115.
(c) Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days'
notice of cancellation, non-renewal, or material change in policy terms or coverage,
provided, however, that ten (10) days' notice shall be acceptable for cancellation due to
non-payment of premium.
(d) 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.
(e) Deductible limits or self-funded retention limits on each policy may not exceed
$10,000.00 per occurrence unless otherwise approved by the City's Risk Manager or that
individual's designee ("Risk Manager").
(f) In lieu of traditional insurance, City may consider alternative coverage or risk treatment
measures through insurance pools or risk retention groups for all required insurance
coverages other than workers' compensation. Any alternative coverage must be
approved in writing by the Risk Manager.
(g) Workers' compensation insurance policies covering employees at the Center and Park
shall be endorsed with a waiver of subrogation providing rights of recovery in favor of
the City.
(h) City shall not be responsible for the payment of the premium costs for any insurance that
the Contractor is required to obtain under this Agreement.
(i) Each insurance policy required under this Agreement shall be endorsed to provide that
such insurance is primary protection and that any self-funded or commercial coverage
maintained by City shall not be called on to contribute to loss recovery.
Management Agreement for McLeland Tennis Center 9 of'31
(j) Upon the request of City, Contractor shall ensure that City is provided with complete
copies of all insurance policies required under this Agreement.
(k) Unless otherwise stated, all required insurance shall be written on an "occurrence basis."
If coverage is underwritten on a "claims made" basis, the retroactive date shall be
coincident with or prior to the date of this Agreement, and the certificate of insurance
shall state that the coverage is"claims made" and indicate the retroactive date.
(1) Contractor's liability shall not be limited to the specified amounts of insurance required
herein.
(►n) Any failure on part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirements specified herein.
7.3 City retains responsibility for Fire and Extended Coverage Insurance on the Center itself and all
fixtures, equipment, and other contents of the Center owned by the City.
7.4 Contractor shall be responsible for any contents of the Center not owned by the City and for
obtaining and paying for any insurance coverage therefor.
7.5 Without limiting any other liability of Contractor, Contractor shall be responsible for any and all
acts or omissions of Contractor, its agents, employees, contractors, and subcontractors.
7.6 Throughout the Primary Tenn of this Agreement and any Renewal Term, Contractor shall report
to the Risk Manager and the Director in a timely manner any loss occurrence that could give rise to a
liability claim or lawsuit or that could result in a property loss.
SECTION 8.
LIABILITY AND INDEMNIFICATION
8.1 CITY SHALL NOT BE LIABLE FOR, AND IS HEREBY RELEASED FROM, ANY
LOSS, DAMAGE, OR INJURY OF ANY KIND OR CHARACTER TO ANY PERSON OR
PROPERTY ARISING FROM CONTRACTOR'S USE OF THE CENTER, OR CAUSED BY
ANY DEFECT IN ANY BUILDING, STRUCTURE, IMPROVEMENT, OR EQUIPMENT IN
THE CENTER OR CAUSED BY OR ARISING PROM ANY ACT OR OMISSION OF
CONTRACTOR, OR OF ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS,
EMPLOYEES, LICENSEES, OR INVITEES, OR BY OR FROM ANY ACCIDENT, FIRE, OR
OTHER CASUALTY IN THE CENTER OR BROUGHT ABOUT BY CONTRACTOR'S
FAILURE TO MAINTAIN THE CENTER IN A SAFE CONDITION. FURTHER,
CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR THE SAFETY AND SECURITY OF
PROPERTY, EQUIPMENT, SUPPLIES, MERCHANDISE, AND COMMODITIES USED OR
OFFERED FOR SALE BY CONTRACTOR AT THE CENTER. CITY SHALL HAVE NO
RESPONSIBILITY WHATSOEVER, AND CONTRACTOR SHALL MAKE NO CLAIM
AGAINST THE CITY WITH RESPECT TO SUCH MATTERS.
82 CONTRACTOR AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, AND
HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, SERVANTS,
AND EMPLOYEES FROM AND 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, BUT NOT LIMITED TO, ALLEGED
DAMAGE OR LOSS TO BUSINESS AND ANY RESULTING LOST PROFITS) AND
Managemcnt Agreement for McLeland Tennis Center 10 of 3I
PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, 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 ACT OR OMISSION OF
CONTRACTOR, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, SEPARATE
CONTRACTORS, OR SUBCONTRACTORS, RELATED TO THE MANAGEMENT OR
OPERATION OF THE CENTER OR THE PERFORMANCE OF THIS AGREEMENT. THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY
LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY, ITS OFFICERS,
AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND
CONCURRENT LIABILITY 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 ANY IMMUNITY OR DEFENSE THE CITY MAY BE ENTITLED TO CLAIM UNDER
TEXAS OR OTHER APPLICABLE LAW.
8.3 IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR
HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF
THE INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, SUCH LEGAL
LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND
SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM
EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE
REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE
INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT.
8.4 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE
CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, CONTRACTOR, ON
NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT
CONTRACTOR'S EXPENSE, BY OR THROUGH ATTORNEYS SATISFACTORY TO CITY.
8.5 Contractor agrees to notify City promptly upon the receipt of any claim or lawsuit brought in
connection with any injury, death, or damages on the Center. Contractor agrees to make its officers,
agents, and employees available to City, at all reasonable times for any statements and case preparation
necessary for the defense of any claims or litigation for which City may be responsible hereunder.
Contractor shall place language in its contract with contractors that contractors shall notify City as
required by Agreement in this subsection.
8.6 Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier
termination of this Agreement.
SECTION 9.
UTILITIES AND SERVICES
9.1 The City shall be responsible for the following utility-related expenses: water, sewer, electricity,
gas, and waste disposal utility. Contractor shall make reasonable efforts to minimize the use of utilities
by ensuring that lights, appliances, and water are shut off during periods of non-use.
92 The City shall be responsible for the rental expenses for the existing ice machine at the Center.
9.3 Contractor shall be responsible for all utility expenses related to communications, including, but
not limited to, local and long distance telephone service, cable or satellite television and radio services,
and internet or similar communications service.
Management Agreement for Mcl,eland Tennis Center l l of 31
9.4 Contractor shall provide, at its own sole expense, computerized point-of-sale cash registers and
any other computers utilized for back office staffing.
9.5 Contractor will provide, at its own sole expense, a security system, which shall include at a
minimum, an alarm and monitoring system, for the Center. Contractor shall provide City with any codes
and keys necessary to disarm the security system.
SECTION 10.
TAXES AND FEES
10.1 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.
10.2 Contractor agrees to obtain and pay for all licenses, permits, certificates, and inspections required
by law or otherwise necessary to perform the services prescribed for Contractor to perform hereunder.
SECTION 11.
MAINTENANCE, ALTERATION, IMPROVEMENTS,AND INSPECTIONS
11.1 Contractor has or will secure, at its own expense, all materials, supplies, machinery, equipment,
tools, superintendence, labor personnel, insurance, and other accessories and services necessary to
provide for all Routine Maintenance and Repairs to the Center. For purposes of this Agreement, "Routine
Maintenance and Repairs" means those maintenance or repairs that are integral to the core functioning
and operation of the Center and that occur in the normal course of operation and includes, without
limitation, the following:
(a) Maintaining and operating the Center and immediately surrounding grounds in a clean,
safe, wholesome, and sanitary condition, free of trash, garbage, or obstructions of any kind in
accordance with the Park and Recreation Department's facility cleanliness standards, a copy of
which is attached to this Agreement as Exhibit B and incorporated herein for all purposes.
(b) All janitorial and custodial services for the Center.
(c) Any grounds keeping services beyond that which is ordinarily provided by the City. For
purposes of this Agreement, the City will provide ordinary services at a Level III — Moderate
Level maintenance per its Park Classification Plan — Maintenance Standard Classification
System. The City will provide a copy of such plan upon request.
(d) A complete and proper arrangement for the adequate sanitary handling and disposal away
from the Center of all trash, dry and wet garbage, and other refuse resulting from, or in any way
associated with, Contractor's use of the Center.
(e) Basic repairs and maintenance to the tennis courts, including periodic repainting and
restriping due to ordinary wear and tear.
11.2 City shall be responsible for all Major Maintenance and Repairs to the Center. If the Contractor
notifies the City, in writing, of an issue requiring Maior Maintenance and Repair, then the City shall make
a good faith effort to correct such issue within ten (10) business day or, if the maintenance or repair
requires longer, as determined by the Director in his sole discretion, then the City shall have a reasonable
time to make such maintenance or repairs. "Major Maintenance and Repairs" means those maintenance
Management Agreement for McLeland Tennis Center 12 of 31
or repairs that are integral to the core functioning and operation of the Center and that occur either
infrequently or that are scheduled on a non-routine basis, which may include, without limitation, the
following:
(a) Tennis court resurfacing and structural condition of the tennis courts.
(b) Building maintenance and repairs, such as roofing, foundation, exterior walls, tile,
flooring, fire suppression systems, HVAC, elevators, electrical, and the like.
(c) Maintenance and replacement of any tennis nets and windscreens to the extent that the
City has sufficient CIF funds available. If the City does not have the necessary CIF funds to
replace or maintain the nets and windscreens, then Contractor shall be responsible for maintaining
and replacing the same, at its sole cost and expense.
11.3 If there is a dispute as to what constitutes Routine Maintenance and Repairs or Major
Maintenance and Repairs under this Agreement, then the decision of the Director shall control.
11.4 City shall also be responsible for maintaining the outdoor grounds of the Center, including the
lawns, landscaping, and lighting.
11.5 Director agrees to request funding to resurface two (2) tennis courts per fiscal year in the Park
and Recreation Department's annual budget proposal. However, Contractor understands and agrees that
the City Manager's Office or the City Council may eliminate or deny such funding request and that the
tennis courts will only be resurfaced if funds are appropriated for that fiscal year. City does not guarantee
that any courts will be resurfaced and is under no obligation to resurface any courts if funds are riot
appropriated by the City Council.
11.6 Contractor may provide for and manage alterations, additions or improvements to the Center with
the prior written approval of the Director. City and Contractor agree that Contractor will perform all
alterations, additions, and improvements (i) in accordance with a set of plans and specifications pre-
approved by the Director; (ii) in accordance with all applicable laws, ordinances, rules, regulations, and
specifications of all federal, state, county, city, and other governmental agencies now or hereafter in
effect; (iii) in a good and workman like manner; and (iv) in accordance with industry standards of care,
skill, and diligence.
(a) Approval by the City of any plans and specifications relating to any alterations, additions,
or improvements shall not constitute or be deemed (1) to be a release by the City of the
responsibility or liability of Contractor and its subcontractors, for the accuracy or the competency
of the plans and specifications, including, but not limited to, any related investigations, surveys,
designs, working drawings and other specifications or documents, or (2) an assumption of any
responsibility or liability by the City for any act, error or omission in the conduct or preparation
of any investigation, surveys, designs, working drawings and other specifications or documents
by Contractor or its subcontractors. City shall own the plans and specifications.
(b) Contractor may authorize a third party contractor to undertake all or any portion of any
alteration, addition, or improvement (a "Third Party Contractor") provided that Contractor first
enters into a contract with such Third Party Contractor for the work to be undertaken by the Third
Party Contractor and such contract contains all of the following: (1) a provision in a form
acceptable to the City pursuant to which the contractor and any subcontractors involved with the
work agrees to release, indemnify, defend and hold harmless the City from any and all damages
arising as a result of or in relation to the work and for any negligent or grossly negligent acts or
Management Agreement for McLeland Tennis Center 13 of 31
omissions or intentional misconduct of the "Third Party Contractor, any subcontractors, and
Contractor, and their officers, agents, servants and employees, (2) if required per Section
2253.021 of the Texas Government Code, the "Third Party Contractor shall provide Contractor with
a bond or bonds, which Contractor shall forward to the City, that guarantees the faithful
performance and completion of all construction work covered by the contract and full payment for
all wages for labor and services and of all bills for materials, supplies and equipment used in the
performance of the contract (3) a requirement that the Third Party Contractor provide insurance in
accordance with minimum requirements that may be required by the City, as approved in writing
by the City's Risk Manager, (4) a requirement that the Third Party Contractor and any of its
subcontractors comply with all applicable federal, state and local laws, ordinances, rules and
regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as
amended; and (5) the provisions referred to in Section 12 hereto with respect to the audit of the
Third Party Contractor's records. All of the requirements contained in this Section shall
hereinafter be referred to as the "Third Party Contract Provisions."
(c) IF CONTRACTOR ENTERS INTO ANY THIRD PARTY CONTRACT FOR
CONSTRUCTION OF ANY PUBLIC IMPROVEMENTS THAT DO NOT CONTAIN ALL OF
THE ABOVE THIRD PARTY CONTRACT PROVISIONS, AND TO THE EXTENT THAT
ANY CLAIMS, DEMANDS, LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY
KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE
OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISE
UNDER, ON ACCOUNT OF OR IN RELATION TO THE THIRD PARTY CONTRACT FOR
WHICH THE CONTRACTOR THEREUNDER WOULD HAVE BEEN REQUIRED TO
INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY IF THE THIRD PARTY
CONTRACT PROVISIONS HAD BEEN INCLUDED IN THE THIRD PARTY CONTRACT
("THIRD PARTY CONTRACT DAMAGES"), THEN CONTRACTOR, AT CONTRACTOR'S
OWN EXPENSE, SHALL INDEMNIFY, DEFEND (WITH COUNSEL REASONABLY
ACCEPTABLE TO THE INDEMNIFIED PARTIES HEREIN) AND HOLD HARMLESS THE
CITY FROM AND AGAINST ANY SUCH THIRD PARTY CONTRACT DAMAGES. THIS
IS IN ADDITION TO ANY OTHER INDEMNIFICATION PROVISION PROVIDED IN THIS
AGREEMENT.
11.7 Ownership of all existing structures and improvements, and of all structures, buildings, or
improvements constructed by City or Contractor upon the Center and all alterations, additions, or
betterments thereto shall immediately vest and be vested in City at all times during and after the term of
this Agreement. City shall retain, at all times, the right to possession of such structures, buildings and
improvements. No such alteration or improvement may be removed from the property during or after the
term of this Agreement(or any renewal thereof)without the express, prior written consent of the Director.
11.8 City may, at any time and without notice, enter upon the Center for the purposes of inspection,
including but not limited to, fire code inspections by the City's Fire Marshal; determining whether
Contractor is complying with this Agreement; maintaining, repairing, or altering the Center; or any other
reasonable purpose. Contractor will cooperate fully with City during any such inspection. During any
inspection, City may perform any obligations that City is authorized or required to perform under the
terms of this Agreement or pursuant to its governmental duties under federal state or local laws, rules or
regulations. The City will submit the results of any inspection to Contractor, identifying any areas of
concern or deficiency. Contractor shall be responsible for correcting all problems cited in the City's
report within two weeks of the date the report is provided to the Contractor. If a particular problem will
take more than two weeks to correct, Contractor shall notify the Director of that fact as soon as possible
and provide a reasonable date certain by which the issue will be corrected.
Management Agreement for McLeland Tennis Center 14 of 31
SECTION 12
REPORTING, RECORDS, AND AUDIT
12.1 Center Evaluation Reports.
(a) City and Contractor agree that the overall condition and playability of the Center, the
quality of service provided by the Contractor, and the condition of the buildings thereon is of
primary importance to both parties. As this Agreement specifies the standards of performance
deemed necessary for proper maintenance and services, City and Contractor will develop a Center
Evaluation Report to document Contractors performance pursuant to those standards.
(b) The Center Evaluation Report will be completed by an authorized representative of the
Director after a bi-monthly inspection of the Center by City's representative. City shall make
every reasonable effort to conduct such inspections on a regular basis, and Contractor will be
invited to participate in such inspection tour of the Center.
(c) The Director reserves the right to modify, update, or amend the general content and
format of the Center Evaluation Report forms in order to provide for a suitable instrument for the
documentation of Contractor's performance.
12.2 Contractor shall prepare and maintain an adequate set of records, in detail and methodology
satisfactory to the Director, documenting all revenues and expenses associated with Contractor's
operation and management of the Center. Such method shall include the keeping of the following
records:
(a) Regular books of accounting, such as general ledgers;
(b) Cash receipts and cash disbursements journals, including any supporting and underlying
documents such as invoices, vouchers, checks, tickets, bank statements, and the like,
(c) State and Federal business income tax returns and sales tax returns and checks and other
documents proving payment of sums shown;
(d) Computerized point of sale (daily reports)and tennis reservations,
(e) Any other reporting records that the Director deems necessary for proper reporting of
receipts and disbursements;
(f) Preparation of operating budgets;
(g) Preparation of reports with respect to all financial aspects of the Center, such as payroll
data, cash receipts, accounts receivable, budget reports, and detailed profit center information;
and
(h) Maintenance of accounting records and preparation of annual financial statements of the
Center in accordance with generally accepted accounting principles, consistently applied.
12.3 On a monthly basis, Contractor shall provide the Director with a written summary report of all
activities and financial transactions related to the Center during the preceding month, including, but not
limited to the following information:
Management Agreement for Mclxiand'fennis Center 15 of31
(a) All personnel changes.
(b) All revenues and expenses associated with Contractor's operation and management of the
Center as set forth in Section 12.2.
(c) Tournaments held at the Center during the prior month and a schedule of upcoming
tournaments for the next three months.
(d) League play participation, which includes a breakdown by level of play.
(e) Individual and group tennis lessons participation, including a breakdown by level of play.
(f) Hours of operation.
(g) Updates on advertising and promotional campaigns.
(h) Tennis court rental (indoor and outdoor).
(1) Any other items that the Director deems necessary in his/her reasonable discretion.
12.4 Contractor shall keep full, complete, proper, and customary books, records, and accounts of gross
receipts, both for cash and credit payments, of each separate activity conducted at the Center. Contractor
shall, at all reasonable times, make available to the City and its authorized representatives and agents all
books, records, and accounts related to the Center, including any sales tax reports that Contractor may be
required to furnish to any government or governmental agency. Contractor agrees to maintain financial
records pertaining to the operation and management of the Center during each Contract Year for a period
of three (3)years from the date that the Agreement ends.
12.5 Contractor agrees that the City or its representatives shall, until the expiration of three (3) years
after expiration of this Agreement, have access to and the right to examine and photocopy financial
records and supporting documentation directly related to the Contractor's use of the Center and the Park.
Contractor agrees that the City shall have reasonable access during normal working hours to all necessary
Contractor facilities and shall be provided reasonably adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Contractor reasonable
advance notice of intended audits.
12.6 Contractor further agrees to include in any subcontractor agreements hereunder a provision to the
effect that the subcontractor agrees that the City shall (1), until the expiration of three (3) years after
expiration or termination of the subcontract, have access to and the right to examine and photocopy any
directly pertinent books, documents, papers, and records of such subcontractor involving transactions to
the subcontract, and (2) have reasonable access during normal working hours to all subcontractor
facilities and be provided reasonably adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this Section. The City shall give stlbcontractor(s) reasonable advance
notice of intended audits.
12.7 Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier
termination of this Agreement.
SECTION 13.
TERMINATION AND REMEDIES
Management Agreement for McLeland Tennis Center 16 43 1
13.1 Termination. Except as otherwise provided, if Contractor defaults in the performance of any
promise, covenant, term, or condition required of it herein, and fails to cure such default within thirty (30)
calendar days following written notice thereof from the Director, unless a longer cure period is approved
in writing by the Director,then the City shall have the right to terminate this Agreement immediately. In
addition, the City may terminate this Agreement for any reason so long as the City provides at least six
months' advance written notice to Contractor. - Waiver of any particular instance or breach does not
constitute any continuing waiver or a waiver of any subsequent breach of this Agreement.
13.2 Surrender. Contractor shall peaceably and immediately give tip and surrender the Center and
every part thereof to the City at the expiration or termination of this Agreement.
13.3 Contractor's Duties Upon Expiration.
(a) Prior to the effective date of expiration or termination of this Agreement, Contractor shall
promptly remove any and all property owned by Contractor, including, but not limited to,
personal property. Contractor shall also repair, replace, and restore any Contractor-caused
damage to the Center, including, but not limited to, any damage that Contractor causes during
removal of Contractor's property, to the full and complete satisfaction of the Director. If
Contractor fails to remove all of its property in a timely manner or otherwise complete all of its
obligations hereunder, then the Director may, in its reasonable discretion, authorize limited access
for a period to be determined by the Director. Contractor's use of the Center under limited access
in accordance herewith shall not invoke any additional extended license period beyond that which
already exists at the time that limited access is granted.
(b) Within 45 calendar days following the expiration or early termination of this Agreement,
Contractor shall submit a financial statement covering all business transacted by it at the Center
during such period. Such financial statement shall be compiled by an independent certified
public accountant and shall be in a format, and in detail, satisfactory to the Director.
13.4 Duties and Obligations Survive Termination or Expiration. No termination or expiration shall
release Contractor from any liability or obligation resulting from any event happening prior to the
completion of all expiration or termination duties or, if later, the date on which City exercises the last of
its available remedies for Contractor's failure to meet its post-termination duties.
13.5 Remedies. In the event that the City terminates this Agreement for cause, then the City shall
retain all CIF paid and owed under the Agreement, and Contractor shall be liable for paying the City the
remainder of the rent for the contract year then in effect on the effective date of termination, or for the six
(6) month period following the effective date of termination, whichever is longer. If the City terminates
this Agreement for reason other than cause, then the City will refund to the Contractor a pro rata share of
the CIF remitted during the then contract year in effect on the effective date of termination. Any
termination of this Agreement as provided in this section will not relieve Contractor from paying any sum
or sums due and payable to City under this Agreement at the time of termination that remains unpaid, or
any claim for damages then or previously accruing against Contractor under this Agreement. Any such
termination will not prevent City from enforcing the payment of any such sum or sums or claim for
damages by any remedy provided for by law, or fi-om recovering damages from Contractor for any default
under the Agreement. All City's rights, options, and remedies under this Agreement will be construed to
be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or
any other remedy or relief provided by law, whether or not stated in this Agreement.
Management Agreement for Mcl-eland Tennis Center 17 of 31
13.6 Fiscal Funding Out. If, for any reason, at any time during the term of the Agreement, the City
Council fails to appropriate funds sufficient for the City to fulfill its obligations under the Agreement, the
City may terminate the portion of the Agreement regarding such obligations to be effective on the later of
(i) thirty (30) days following delivery by the City to the Contractor of written notice of the City's
intention to terminate or (ii) the last date for which landing has been appropriated by the City Council for
the purposes set forth in the Agreement.
SECTION 14.
FORCE MAJEURE
14.1 If either party is unable, either in whole or part, to fulfill its obligations under this Agreement due
to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars, blockades;
insurrections; riots; epidemics; public health crises; earthquakes; tires; floods; restraints or prohibitions
by any court, board, department, commission, or agency of the United States or of any state; declaration
of a state of disaster or of emergency by the federal, state, county, or City government in accordance with
applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States
Department of Homeland Security or any equivalent alert system that may be instituted by any agency of
the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason
beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected
by such Force Majeure Event will be suspended only during the continuance of such event. If a Force
Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community
centers, parks, or other City-owned and operated properties and facilities in the interest of public safety
and operate them as the City sees fit. Contractor hereby waives any claim against City for damages
by reason of any such rescheduling or cancellation.
SECTION 15.
NON-DISCRIMINATION/EOUAL OPPORTUNITY
15.1 In the performance of this Agreement and the operation of the Center, Contractor shall not
discriminate on the basis of race, color, creed, religion, gender, age, military status, handicapped status,
disability, sexual orientation, national origin, or any other legally protected class of people. In addition,
Contractor shall comply with all local, state, and federal laws, rules, and regulations pertaining to non-
discrimination and equal opportunity in the areas of employment, subcontracting, and use of public
facilities.
15.2 It is the policy of the City to involve disadvantaged business enterprises in all phases of its
procurement practices and to provide them an equal opportunity to compete for contracts for construction,
provision of professional services, purchase of equipment and supplies, and provision of other services
required by the City. In keeping with this policy, the Contractor agrees to incorporate the ordinances
establishing the City's Minority and Women Business Enterprises Policies and Disadvantaged Business
Enterprise Policies, as they may from time to time be amended, into all contracts of the Contractor that
would include a goal if entered into by the City and will further require all persons or entities with whom
it contracts to comply with said ordinances. In all other instances, the Contractor will make a good faith
effort to include minority, women, and disadvantaged business enterprises among its contractors and
subcontractors.
SECTION 16.
2014 BOND PROPOSITION
16.1 Proposition Two of the City's 2014 Bond Program allocates $550,000.00 for McLeland Tennis
Center renovations, including accessibility modifications, replacement of non-accessible bleacher
Management Agreement for McLeland Tennis Center 18 of 31
sections, renovation of outdoor courts, and other facility improvements. The City will use its best efforts
to provide Contractor with at least three (3) months' notice of any renovations that will occur as a result
of this section. In the event that any of the renovations will negatively impact the operations of the
Center, the City agrees that it will work in good faith with Contractor to address such impacts. Nothing
contained herein shall be construed so as to prohibit the City from conducting any renovations as part of
this bond proposition.
SECTION 17.
ASSIGNMENT AND NO WAIVER
17.1 Contractor shall not assign, subcontract, sublet, or transfer any its rights or responsibilities under
this Agreement without the prior written consent of the City. Any attempted assignment, subcontract,
sublease, or transfer without the City's prior written consent shall be void.
17.2 The failure of either party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to
insist upon appropriate performance or to assert any such right on any future occasion.
SECTION 18.
INDEPENDENT CONTRACTOR
18.1 It is expressly understood and agreed that Contractor shall operate as an independent contractor as
to all rights and privileges contained in this Agreement, and not as an agent, representative, servant or
employee of the City. Subject to the terms of this Agreement, Contractor shall have the exclusive control
of and the exclusive right to control all details and day-to-day operations and activities relative to its
performance under this Agreement and shall be solely responsible for the acts and omission of its officers,
agents, servants, employees, contractors, subcontractors, licensees, and invitees. Contractor
acknowledges that the doctrine of respondent superior shall not apply as between the City and Contractor
or between the parties' respective officers, agents, servants. employees, contractors, subcontractors,
licenses, or invitees. Nothing contained in this Agreement shall be construed as the creation of a
partnership or joint enterprise between the City and Contractor. In the event of a dispute, any doubt
as to the construction of this Agreement shall be resolved so as to maintain Contractor's status as an
independent contractor.
18.2 The City, through its authorized representatives and employees, shall have the sole and exclusive
right to exercise jurisdiction and control over City employees. Contractor represents that all of its
employees and contractors who perform services under this Agreement shall be qualified and competent
to perform the services set forth herein. The Director reserves the right to refuse to permit any employee
or contractor of Contractor from providing the services set forth herein for any reason, provided that if the
conduct of the employee is correctable, such employee shall have first been notified of his or her
objectionable conduct and shall have had the opportunity to correct it.
SECTION 19.
NATURE OF CONTRACT
19.1 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 Center, the Park, or any
other City property.
SECTION 20.
SIGNS
Management Agreement for Mcl,eland Tennis Center 19 of 31
20.1 Contractor shall not place or cause or permit to be placed any sign or advertisement on the
Center, the Park, or any property of the City without the prior written consent of the Director.
SECTION 21.
CONDITION OF CENTER
21.1 Contractor hereby represents that it has inspected the Center and improvements thereon, that it
finds same suitable for all activities and operations agreed to or contemplated hereunder, and that it takes
the Center and all improvements thereon in an "as is" condition. City hereby expressly disclaims any and
all warranties in regard to the Center, including, without limitation, any warranty of title or fitness for any
particular purpose.
SECTION 22.
COMPLIANCE WITH LAWS
22.1 Contractor covenants and agrees that it shall not engage in any unlawful use of the Center or the
Park, including, but not limited to, the wrongful exclusion of firearms under Chapter 411, Subchapter H,
of the Texas Government Code and Chapter 229 of the Texas Local Government Code. Contractor
further agrees that it (i) shall not permit its officers, agents, servants, employees, contractors,
subcontractors, patrons, licensees, or invitees to engage in any unlawful use of the Center or the Park and
(ii) shall immediately remove from the Center and Park any person engaging in any unlawful activities.
Unlawful use of the Center or the Park by Contractor itself shall constitute an immediate breach of this
Agreement for which the City may, at its sole option, declare this Agreement terminated immediately.
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; 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 any law,
ordinance, rule, or regulation, Contractor shall immediately desist from and correct the violation.
22.2 In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA),
Contractor warrants that it 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
conditions of employment for applicants for employment with, or employees of the Contractor or any of
its subcontractors. Contractor warrants it will fully comply with all applicable ADA provisions and any
other applicable federal, state, and local laws concerning disability.
SECTON 23.
NO LIENS ON PROPERTY
23.1 Contractor does not have the authority to engage in any act or to make any contract that may create
or be the foundation for any lien or mortgage upon any real property and improvements owned or to be
owned by the City. If any such purported lien or mortgage is created or filed, Contractor, at no cost to the
City, shall liquidate and discharge the same within thirty (30) calendar days of such creation or filing.
Contractor's failure to discharge any such purported lien within thirty (30) calendar days after receipt of
written notice from the City will constitute a breach of this Agreement. Contractor's financial obligation to
the City to liquidate and discharge such lien or mortgage shall continue in effect following termination or
expiration of this Agreement and until such a time as the lien or mortgage is discharged.
SECTION 24.
Management Agreement for McLeland Tennis Center 20 of 31
BINDING COVENANTS AND NO THIRD-PARTY BENEFICIARIES
24.1 Subject to the limitations contained herein, the covenants, conditions and agreements made and
entered into by the parties hereto are declared to be for the benefit of and binding upon their respective
successors, representatives and assigns, if any.
24.2 The provisions and conditions of this Agreement are solely for the benefit of the City and
Contractor, and any lawful assign or successor of Contractor, and are not intended to create any rights,
contractual or otherwise,to any other person or entity.
SECTION 25.
APPLICABLE LAW AND VENUE
25.1 This Agreement shall be construed in accordance with the laws of the State of Texas. 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.
SECTION 26.
NOTICES
26.1 All notices, demands, requests, or replies provided for or permitted under this Agreement 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.
26.2 Notice deposited with the United States Postal Service in the manner described above shall be
deemed effective three business days after deposit with United States Postal Service. Notice by personal
delivery shall be deemed effective at the time of personal delivery.
26.3 For purposes of notice, demand, request, or reply,the addresses of the parties shall be:
IF TO CITY IF TO CONTRACTOR
City of Fort Worth Lifetime Tennis, Inc.
Attn: Director of Park and Recreation Attn: Matt Hanlin
4200 S. Freeway, Ste. 2200 3253 Alma Road
Fort Worth, Texas 76115 McKinney, Texas 75070
With copy to:
City of Fort Worth
Attn: Assistant City Attorney
Assistant City Manager
1000 Throckmorton Street
Fort Worth, Texas 76102
Management Agreement for McLeland Tennis Center 21 of 31
BINDING COVENANTS AND NO THIRD-PARTY BENEFICIARIES
24.1 Subject to the limitations contained herein, the covenants, conditions and agreements made and
entered into by the parties hereto are declared to be for the benefit of and binding upon their respective
successors, representatives and assigns, if any.
24.2 The provisions and conditions of this Agreement are solely for the benefit of the City and
Contractor, and any lawful assign or successor of Contractor, and are not intended to create any rights,
contractual or otherwise,to any other person or entity.
SECTION 25.
APPLICABLE LAW AND VENUE
25.1 This Agreement shall be construed in accordance with the laws of the State of Texas. 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.
SECTION 26.
NOTICES
26.1 All notices, demands, requests, or replies provided for or permitted under this Agreement 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.
26.2 Notice deposited with the United States Postal Service in the manner described above shall be
deemed effective three business days after deposit with United States Postal Service. Notice by personal
delivery shall be deemed effective at the time of personal delivery.
26.3 For purposes of notice, demand, request, or reply, the addresses of the parties shall be:
IF TO CITY IF TO CONTRACTOR
City of Fort Worth Lifetime Tennis, Inc.
Attn: Director of Park and Recreation Attn: Matt Hanlin
4200 S. Freeway, Ste. 2200 3253 Allna Road
Fort Worth, Texas 76115 McKinney, Texas 75070
With copy to:
City of Fort Worth
Attn: Assistant City Attorney
Assistant City Manager
1000 Throckmorton Street
Fort Worth, Texas 76102
Management Agreement for McLeland Tennis Center 21 of 31
And
City of Fort Worth
Attn: Athletic Coordinator
600 Congress Street
Fort Worth, Texas 76107
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.
27.
USE OF OFFICIAL CITY LOGO
27.1 Contractor acknowledges that the Fort Worth City Council has adopted and copyrighted as its
logo "Molly" the longhorn steer, which may be used by the Contractor to carry out its promotional and
marketing obligations for the Center, provided that all such use must comply with all City policies
regarding authorized uses and approved colors and graphics as those policies exist now or may exist in
the future. The City shall provide Contractor with a copy of the Molly Logo Use Policy upon request.
27.2 Contractor, its respective designees or assignees, shall not use any designated marks, logo or
copyrights of the City or sell, transfer, or give any original prints or reproductions for circulation or
publication for use by a third party. Nor shall the Contractor use such logo in any manner that reflects
unfavorably upon the good name, goodwill, reputation, or image of the City. Contractor, its respective
designees or assignees, shall not use any designated marks or copyrights, in any manner that would cause
confusion in the public mind as to the permitted use for which the Contractor has been granted such
rights. None of the designated marks or copyrights of the City shall be incorporated into a common
graphic or be associated with third party trade names or marks, except as agreed upon by the City.
Contractor, its respective designees or assignees, may not use any of the designated marks or copyrights
of the City or authorize such use on any World Wide Web site or on any other on-line site, except as
specifically approved by the City.
SECTION 28.
SECTION HEADINGS AND SEVERABILITY
28.1 The section headings contained in this Agreement are for convenience in reference only and are
not intended to define or limit the scope of any provision of this Agreement.
28.2 if any of the provisions contained in this Agreement shall be held, for any reason, to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability, shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained herein.
SECTION 29.
GOVERNMENTAL POWERS
29.1 it is understood that by execution of this Agreement, the City does not waive or surrender any of
it governmental powers or immunities.
SECTION 30.
REVIEW OF COUNSEL
Management Agreement for McLeland Tennis Center 22 of 31
30.1 The parties acknowledge that each party and its counsel have had the opportunity to review and
revise this Agreement and that the normal rules of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Agreement or any
exhibits hereto.
SECTION 31.
AMENDMENTS/MODIFICATIONS/EXTENSIONS
31.1 No extension, modification or amendment of this Agreement shall be binding on a party hereto
unless such extension, modification, or amendment is set forth in a written instrument that is executed by
an authorized representative and delivered on behalf of such party.
SECTION 32.
SIGNATURE AUTHORITY
32.1 The person signing this Agreement hereby warrants that he/she has the legal authority to execute
this instrument on behalf of the respective party and that such binding authority has been granted by
proper order, resolution, ordinance, or other authorization of the entity. The other party is fully entitled to
rely on this warranty and representation in entering into this Agreement.
SECTION 33.
COUNTERPARTS AND ELECTRONIC SIGNATURES
33.1 This Agreement may be executed in several counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument. A signature received via
facsimile or electronically via email shall be as legally binding for all purposes as an original signature.
SECTION 34.
ENTIRETY OF AGREEMENT
34.1 This written instrument (including all exhibits attached hereto) constitutes the entire
understanding of the parties concerning City's and Contractor's roles and obligations in regard to this
Agreement. Any prior or contemporaneous oral or written agreement that purports to vary from the terms
hereof shall be void to the extent in conflict with any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereby execute this contract in multiple originals to be
effective as of the date set forth in Section 2.
CITY OF FORT WORTH LIFETIME TE I , NC.
an Alanis Niatt Harlin
Assistant City Manager President and Executive Director
Date: Date:
APPROVED AS T O FOT" ti:1D LEGALITY: ��
OFFICIAL RECORD
CITY SECRETARY
I=T'. WO)RTHl TX
Man;e Agreement for McLeland Tennis Center 23 of 31
Tyler F. Wallach I. f," "
Assistant City Attorney
ATTEST: ®�
Mary Ka �C
City Secretary
ryas
Authorization:
M&C: C-27791 (August 9, 2016)
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Management Agreement for McLeland Tennis Center 24 of 31
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 Susan Alanis, 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 day o ' 2016.
LINDA M. HIRRLINGER
r. f%S Notary Public.State of Texas _
;
' I-Comm. Expires 02-02-2016
Notary Public in and for
Notary ID 12414414.6 the State of Texas
STATE OF TX/4 §
Cn Lt,�nl §
COUNTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of Lifetime Tennis, Inc. and that he
executed the same as the act of said Lifetime Tennis, Inc. for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND SEAL OF OFFICE this /4? day of� f, 2016.
�t DERRICK OOSMANO
* * NOTARYPU8UC3TATEOFTEXA3 Notary Public in and for
�, MY COMM.EXP Qua the State Of %)W5
'fioF NOTARY ID 1S16d187-7
OFFICIAL RECORD
CIT*Y�SECRETARY
Management Agreement for Mcl.eland Tennis Center FT. WORTH TX 25 of 31
f
EXHIBIT A
CENTER
lk
C�
L P
i --
Management Agreement for McLeland Tennis Center 26 of 31
EXHIBIT B
FACILITIES CLEANLINESS STANDARDS
Overview
One of the City's Management Priorities and a Strategic Goal of the City Council of Fort Worth
emphasize ensuring quality customer service and providing a cleaner more attractive City. Successful
efforts will result in a sanitary, safe and pleasant environment for our citizens, visitors and employees
who come to or work in City facilities. In order to establish general guidelines that will provide direction
for our employees and contractors, cleaning standards have been developed to address these concerns.
The standards are directed primarily at City buildings (example: community centers, public events, city
hall, etc.) that are frequented by the general public. These standards are primarily a base and may be
enhanced by the Director. Standards may also be governed by licensing or professional organization
policies. All custodial personnel should be required to participate in effective custodial and product
training on a quarterly basis. It is also important to note, that the volume of usage will dictate the
frequency of each activity and some of the evaluation categories outlined below may not be applicable
due to the dissimilarities of structures within various city facilities.
"INSPECT WHAT YOU EXPECT!"
General (for all facilities)
Bulletin Boards, Windows and Doors
Daily:
• Designated staff conducts inspection of exterior and interior of facility.
Inspection should include:
Litter
Bird and other animal droppings
Outdated materials on bulletin boards
Brochure/Literature Racks
Light bulbs
Flyers, notices, etc. inappropriately taped or attached to doors and walls
Graffiti
Wash/clean high windows in facilitates per contract
Bi-Annually
• Wash/clean windows in facilities, inside and outside.
Parking Lots, Garages and Grounds
Daily:
• Inspect for litter, trash or other debris
• Pick up trash, etc.
• Empty trash receptacles, replace liners
• Park sites - Weekly
Bi-Annually:
• Power wash surface/floors, walls
Entrances, Lobbies and Corridors
Daily:
Management Agreement for McLeland Tennis Center 27 U3 I
• Empty waste baskets/receptacles, remove debris, shift and/or replace sand in smoking
urns (Note: If at all possible, locate smoking area away from the entrance); survey
entrance for leaves, litter and remove
• Dust mop and wet mop tiled areas
• Vacuum carpeted areas and mats; remove gum and soiled spots
• Disinfect water fountains
• Clean entrance door glass
• Dust lobby/reception area furniture, fine closets and extinguishers
Weekly:
• Clean display cases and interior door glass
• Spot clean walls
• Restore floor finish on non-carpeted floors
Twice Monthly:
• Dust high vents, lights, blinds and wall surfaces
Restrooms and Locker Rooms
Daily:
• Empty waste baskets/receptacles and change liners
• Restock dispensers: soap, paper towel, toilet tissue and feminine hygiene
• Clean mirrors; clean and disinfect urinals and commodes; clean basins; polish stainless
steel and chrome surfaces
• Spot wash walls, lockers and partitions
• Sweep and wet mop floors with disinfecting solution; ensure that the process is started
with a clean mop
Weekly:
• Damp clean and wipe/polish partitions
• Pour at least one gallon of clear water down floor drains
• Dust wall and ceiling vents
• Wipe/clean doors and wall tile
Twice Monthly:
• De-scale fixtures
• Scrub or mop floor thoroughly
Offices and Lounges
Daily:
• Empty waste baskets/receptacles inside or placed outside office door
• Clean any inner-office restrooms following public restrooms standards
Weekly:
• Empty waste baskets/receptacles and change liners
• Dust cleared furniture tops, desk lamps and bookshelves
• Clean doors, door glass and telephone
• Dust mop and wet mop tiled floors
• Vacuum and remove spots fi-om carpeted floors, fabric chairs and sofas
Monthly:
Management Agreement for McLeland Tennis Center 29 of 31
• Dust coat racks, clocks, window ledges, pipes, vents, blinds and any
connecting vertical and horizontal wall surfaces
• Restore floor finish on non-carpeted floors
Classrooms,Auditoriums, Libraries and Reception Areas
Daily:
• Empty waste baskets/receptacles and replace liners
• Clean dry erase or chalk boards and trays
• Vacuum traffic patterns on carpeted floors; remove gum and soil spots
• Dust mop and wet mop tiled floors
• Clean glass in doors and partitions
• Dust furniture surfaces and damp clean tabletops
• Empty pencil sharpeners
Weekly:
• Vacuum carpeted areas thoroughly
• Clean door surfaces
• Restore floor finish on non-carpeted floors
Monthly:
• Dust high vents, lights, pipes, blinds and connecting vertical and horizontal wall surfaces
• Vacuum upholstered chairs
Conference Rooms
Daily:
• Empty waste baskets/receptacles
• Clean dry erase and chalkboards and chalk trays
Three (3)Times Weekly:
• Vacuum traffic patterns on carpeted floors and remove gum and soil spots
• Dust mop and wet mop tiled floors
• Clean glass in doors and partitions
Weekly:
• Dust furniture surfaces and damp clean table tops
• Empty pencil sharpeners
• Vacuum carpeted areas thoroughly
• Clean door surfaces
Public Stairs
Daily:
• Dust mop and wet mop
Weekly:
• Dust handrails, radiators, window ledges, clean risers and ledges
Monthly:
• Dust high vents, lights, pipes, blinds and connecting vertical and horizontal wall surfaces
Management Agreement for McLeland Tennis Center 29 U3 I
Copy Rooms
Daily:
• Empty waste receptacles and replace liners
• Dust mop tiled floors
• Vacuum carpeted floors, remove gum and soil spots
Weekly:
• Thoroughly vacuum vents
• Clean door surfaces
Monthly:
• Dust clocks, window ledges and blinds, restore floor finish on non-carpeted floors
Shower Stalls,Community Centers, Other Facilities
Daily:
• Remove foreign matter and soap. Clean disinfect floors
• Flush floor with clear water and squeegee dry
• Disinfect shower walls
• Clean beneath shower mats. Clean and disinfect mats
Twice Weekly:
• Clean handles, showerheads and other fixture hardware
• Scrub and disinfect shower room walls. Remove scum from walls
Break Rooms
Daily:
• Clean tabletops with disinfect
• Empty waste receptacles and replace liners
• Dust mop and wet mop tiled areas
• Vacuum carpeted areas and mats, remove gum and soil spots
• Disinfect drinking fountains
• Wipe chairs with damp sponge
Twice Monthly:
• Dust vents, lights, pipes and blinds
Gymnasiums,Activity Areas
Daily:
• Empty waste receptacles and replace liners
• Dust mop court floors and spot clean
• Dry mop gym floor with recommended product
• Clean glass in doors and partitions
• Clean and disinfect drinking fountains
• Remove gum and soil spots
• Dust mop and wet lnop tiled floors
• Spot clean walls
• Clean glass in doors and partitions
Weekly:
• Vacuum carpeted areas thoroughly
• Clean door surfaces
• Spray and buff tiled floors, remove scuff marks
Management Agreement for McLeland Tennis Center 30 of 3l
Monthly:
• Dust or vacuum vents, lights, pipes, blinds, drapes, etc.
• Vacuum upholstered furniture. Clean all wooden and other furniture
Management Agreement for McLeland Tennis Center 31 of 31