HomeMy WebLinkAbout026347 ORD - 07/19/2005
Page 1 of 3
AN ORDINANCE
AUTHORIZING THE CITY MANAGER, OR DESIGNEE, TO EXECUTE A
FIVE-YEAR PROFESSIONAL SERVICES CONTRACT AND LEASE
AGREEMENT WITH TOTAL TENNIS, INC., STEVEN B. DENTON,
PRESIDENT (PRO), FOR TENNIS OPERATIONS AT THE HEB TENNIS
CENTER IN CONSIDERATION OF PRO PAYING THE CITY 5% OF PRO
AND LESSON REVENUE, AND COLLECTING AND FORWARDING
CITY REVENUE TO CITY IN RETURN FOR PRO'S EXCLUSIVE USE
OF TENNIS CENTER, AND CITY PAYING PRO $4,138 PER MONTH
FOR PRO OPERATING TENNIS CENTER; AND DECLARING AN
EMERGENCY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI,
TEXAS, THAT:
SECTION 1. The City Manager, or designee, is authorized to execute a five-year
professional services contract and lease agreement ("Agreement") with Total Tennis,
Inc. Steven B. Denton, President (Pro), for tennis operations at the HEB Tennis Center
in consideration of pro paying the city 5% of pro and lesson revenue, and collecting and
forwarding city revenue to city ,in return for pro's exclusive use of tennis center, and city
paying pro $4,138 per month for pro operating tennis center. The Agreement is attached
as Exhibit A and a copy is on file with the City Secretary.
SECTION 2. That upon written request of the Mayor or five Council members, copy
attached, the City Council (1) finds and declares an emergency due to the need for
Immediate action necessary for the efficient and effective administration of City affairs
and (2) suspends the Charter rule as to consideration and voting upon ordinances at
two regular meetings so that ~f ordinan~d upon first reading as an
emergency measure on this .j:::ll"-: day of , 2005.
f-; "\LEG-DIR\DoyleD.CurtisIMYDOCS\2003.Q4\PARK&REC.27\HEBT en ,Cntrl022505DC. T otal.T ennis,StevenS. Denton. HEB.T ennisCntr. Lease5yr.Ord.doc
0211347
Page 2 of 3
ATTEST:
CITY OF CORPUS CHRISTI
~/h4l~~
Herfry Garre
Mayor
-~
Armando Chapa
City Secretary
11 ~Lt lM
APPROVED: ~~ 2005
-
,-'/4'1
~~;;~~~s
Chief, Administrative Law Section
Senior Assistant City Attorney
For City Attorney
c 1:\LEG-DIRIDoyle\MYDOCS\Clos.2003.05\PARK&REC.27\HEBTen, Cntr1022505DC.T olalT ennis.StevenB.Denton.HEB.TennisCntr.Lease5yr.Ord.doc
Page 3 of 3
Corpus Christi, Texas
l~aYof4'^1
,2005
TO THE MEMBERS OF THE CITY COUNCIL
Corpus Christi, Texas
For the reasons set forth in the emergency clause of the foregoing ordinance, an
emergency exists requiring suspension of the Charter rule as to consideration and voting
upon ordinances at two regular meetings: Ilwe, therefore, request that you suspend said
Charter rule and pass this ordinance finally on the date it is introduced or at the present
meeting of the City Council.
Respectfully,
Respectfully,
J,~~k
Henry Garr
Mayor
Council Members
The above ordinance was passed by the following vote:
Henry Garrett
Brent Chesney
Melody Cooper
Jerry Garcia
William Kelly
Rex A. Kinnison
John E. Marez
Jesse Noyola
Mark Scott
:v;,t
o.kiJ-
~
~
~
~f
~Z
~
..., .\LEG-DIR\DoyleIMYDOCS\Clos.2003.05\PARK&REC.27\HEBTen.Cnlr\022505DC.T otal.T ennis.StevenB.Denton.HEB.T ennisCntr.Lease5yr.Ord.doc
O:2h347
Page 1 of 8
Tennis Pro Contract & Lease of HEB Tennis Center
Total Tennis, Inc., Steven B. Denton, President
THE STATE OF TEXAS 9
KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES 9
This Contract ("Contract") is between the City of Corpus Christi, a Texas home-rule
municipal corporation ("City"), and Total Tennis, Inc., of Nueces County, Texas, Steven
B. Denton, President ("Pro"). This Contract is a Tennis Pro Service Contract and a
Lease of the H. E.B. Municipal Tennis Center ("Facility").
I n consideration of the covenants herein, City and Pro agree as follows:
1. Term. City Contracts with Pro as Tennis Professional at the H.E.B. Municipal
Tennis Center ("Facility") subject to all of the terms of this Contract. Further, City
leases Facility to Pro, subject to the terms of this Contract. Facility is shown in the
attached Exhibit 1. This Contract (the Tennis Pro Service Contract and Lease) is for
five (5) years, unless sooner terminated and extending from month to month upon the
same terms and conditions as set out herein until a new Contract and lease are agreed
upon. This Contract is effective on final approval by the City Council.
2. Monthly Pro Fee. City shall pay Pro Four Thousand One Hundred and thirty-eight
Dollars ($4,138) per month, payable monthly on the first business day of each calendar
month during this Contract, as the monthly tennis Pro fee for Pro's services provided
hereunder. For any fee due after fiscal year 2004-2005, the monthly Pro fee is subject
to appropriation by City Council in the applicable fiscal year budget. If a monthly Pro fee
of at least $4,138 is not appropriated, Pro may terminate this Contract.
Parks Director shall review Pro's performance (including City Revenue) after the end of
each year of this Contract.
It is expressly understood that Pro is an independent Contractor and not a City
employee and is not entitled to the benefits normally accorded to City employees.
3. Pro Responsibilities.
A. Compliance with Laws. Pro must operate H.E.B. Municipal Tennis Center (the
"Facility") in conformity with the laws of the State of Texas and the ordinances, rules
and regulations of City.
B. Pro's Qualifications. Pro must be experienced in the management, supervision,
and operation of a tennis Facility. Pro must have and maintain a Class 1 Rating from
the United States Professional Tennis Association. Pro's primary duty is to manage and
control the administration and operation of the Facility.
C\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&Lease.doc
Page 2 of 8
C. Pro Supervision of Facility. Pro is directly responsible for supervising the Facility,
including without limitation, all activities in the locker/restroom.
D. Facility Rules. Pro shall adequately publish and enforce all rules and regulations
governing the playing of tennis and all other activities, as may be conducted at Facility.
E. Cash Handling. Pro must provide fidelity bonds for himself and any of Pro's
employees who handle cash or credit cards. These bonds must be provided to the
Director of Parks and Recreation or designee ("Parks Director") and must be a good
and sufficient fidelity bond in the sum of Five Thousand ($5,000) Dollars, written by a
corporate surety duly licensed under Texas laws to write fidelity bonds. These bonds
must be kept in effect for the entire term of this Contract and any holdover period.
These bonds must assure payment to the City of all City Revenue collected by Pro and
Pro's employees on behalf of the City and the prompt payment of five (5%) percent of
Pro Revenue, including Lesson Revenue, to which the City is entitled.
F. Background Investigation. Pro agrees that City may conduct a background
investigation of Pro and all of Pro's employee's and independent Contractor's at City's
expense. A release authorizing the background investigation must be executed by the
Pro and Pro's employees and independent Contractors. City shall terminate this
Contract if the City finds a felony conviction, convictions for crime of moral turpitude, or
conviction for any drug offenses. Pro shall terminate any of Pro's employees and
independent Contractors for the same causes.
G. Pro's Employees. Pro, at Pro's expense, shall employ sufficient employees to
assist Pro in conducting lessons, operating the Pro Shop, and scheduling courts. All
employees shall be employees of Pro, not City. Employees shall not have any
Contractual relationship with, and are not entitled to any benefits from, City. Pro shall
pay the salaries of all of Pro's employees.
All Contract services must be provided by or under the supervision of Steven B.
Denton. All of Pro's employees must be fully qualified to perform all Contract services
performed by each of them.
None of the Contract services may be subContracted without the prior written approval
of the Parks Director.
Pro is responsible for and must control the activities of Pro and Pro's employees at the
Facility and must take whatever action is necessary to insure that Pro and Pro's
employees conduct themselves in an orderly manner and in keeping with the conduct
required of employees in service organizations in general. Pro shall insure that Pro and
Pro's employees do not consume intoxicating substances at the Facility, or report to
work under the influence of same. Pro shall insure that Pro's conduct and language,
and that of Pro's employees, is above reproach, taking into consideration the Facility is
viewed as a City Facility, and that it caters to families and youth with many children
participating.
C:\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&Lease.doc
Page 3 of 8
H. Taxes. Pro, at his expense, will pay all payroll taxes, F.I.CA taxes, and all other
related taxes prior to the past due date.
I. Programs.
1. Pro must maintain and promote a continuing program to attract citizens and tourists,
to use of the Facility, particularly weekday play, and must maintain rental tennis rackets
for use by the public.
2_ Pro shall promote the game of tennis through youth programs.
3. Pro must biannually, in January and August, submit to the Parks Director a
program of activities for the forthcoming reporting period identifying, at a minimum,
leagues, lessons, youth and adult programs, tournaments by dates and estimated
number of participants and hours of operation.
J. Court Fees. Pro will adequately publicize all approved tennis fees.
K. Required Signage. Pro will provide suitable signs at the Facility Pro Shop advising
the public that the business activity is operated by Pro as an independent Contractor
and not operated by City_
L. Nondiscrimination. Pro is responsible for the fair and just treatment of all Pro's
employees. Pro must insure that no employee or participant is discriminated against
because of disability, sex, race, color, creed, or national origin.
M. Dangerous Conditions. Pro must notify the Parks Director of all dangerous
conditions or special defects at the Facility. Until City repairs or otherwise remedies the
dangerous conditions or special defects Pro must not use, or allow to be used, any area
of the Facility which has dangerous conditions or special defects.
N. Alterations. Pro will make no alterations to the Facility without the Parks
Director's prior written approval of Pro's proposed plans for alteration.
O. Public Courts. Since the H.E.B. Municipal Tennis Center is owned by the City for
the benefit of City residents, Pro must make a minimum of four (4) tennis courts
available to the public whenever the Pro or Pro's authorized individuals are giving, or
available to give tennis lessons, with the exception of tournaments.
P. Facility Maintenance. City is responsible for all Facility maintenance and major
and minor repairs at the Facility to the extent shown in Exhibit 2; and in consideration
thereof, it is agreed that Pro must make no claim for any damages against the City for
loss of income due to the City's failure to make any repairs.
4. Consideration for Lease of Facility. As consideration for lease of the Facility, Pro
must collect and deposit all City Revenue daily in City's account; and Pro must collect
Pro Revenue and Lesson Revenue daily and deposit daily in City's account 5% of Pro
Revenue and 5% of Lesson Revenue, as set out in Section 5 below.
G:\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&Lease.doc
Page 4 of 8
5. Revenue.
A. City Revenue. "City Revenue" means all court fees, permit fees, locker fees, and
other City charges at the then current rate set by the Parks Director in accordance with
Sec. 36-3. Rental Rates of the City Code of Ordinances. City Revenue does not
include any Pro Revenue.
B. Pro Revenue. "Pro Revenue" means all gross revenue received from the Pro Shop
or for use of the Facility, including but not limited to, merchandise sales, racket rentals,
tennis lessons (i.e., Lesson Revenue), racket stringing, racket repairs, food and drink
sales, excluding all applicable separately stated taxes and bulk merchandise sales to
schools at wholesale prices if Pro provides the Parks Director with a copy of the sales
receipt. To be excluded from Pro Revenue, any other wholesale or bulk sale to anyone
but a school, must be approved in writing by the Parks Director prior to the sale.
C. Lesson Revenue. Pro has the exclusive right at H.E.B. Municipal Tennis Center to
give, or authorize, tennis lessons. "Lesson Revenue" means all revenue produced from
giving or authorizing tennis lessons, camps or other forms of teaching sessions. If any
person receiving tennis lessons does not have a tennis permit, Pro must charge a court
fee for each lesson given, which court fee will be deposited as City Revenue.
D. Payment of Revenue.
1. City Revenue. Pro must deposit, daily, all City Revenue, together with daily cash
register tapes and the daily report at the City's designated depository.
2. Pro and Lesson Revenue. As stated in Section 4, Pro must deposit in City's
account City's 5% of Pro and Lesson Revenue daily beginning on the effective day of
this Contract as part of the daily deposit.
6. Exclusive Right Pro is granted the exclusive right to operate a Pro shop at H.E.B.
Municipal Tennis Center including the right to:
A. Sell merchandise.
B. Rent rackets, ball machines, buckets of balls.
C. String rackets.
D. Repair rackets.
E. Operate a food and drink concession.
During this Contract, City will not grant to any other person or organization the right to
sell at H.E.B. Municipal Tennis Center any items available at the Pro Shop, or allow
anyone else to give paid tennis lessons except through or with the consent of the Pro.
C :\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&Lease.doc
Page 5 of 8
7. Record Keeping. Pro must furnish to the City's Director of Finance, or designee,
("Finance Director") a certified monthly statement of Pro Revenue on or before the tenth
day of each month during the Lease. The Finance Director will approve the statement
form prior to commencement of this Lease. The statement form may be altered at the
Finance Director's discretion.
Pro must keep accurate books of account of all Pro Revenue collected. The books of
account will be open for inspection, copying, or audit by City Manager, or designee,
("City Manager") at all times. All books of account and backup documentation must be
available to the Director for review during City's business hours at the Facility. City's
Director of Finance and Pro's designee will approve the form for the daily report.
All underlying documentation for Pro Revenue, Lesson Revenue, City Revenue, and
Pro's certified monthly statement, including cash register tapes, purchase orders,
invoices, sales receipts, counter information, and the like, must be preserved by Pro
during the lease term and for at least two years thereafter, including any holdover
period. Accounting records, ledgers, journals, and reports with regard to Pro Revenue,
Lesson Revenue and City Revenue must be retained for five (5) years after termination
of this Contract. City may terminate this Lease for failure to preserve these records or
to provide them to City Manager upon request.
Pro must provide the Parks Director copies of its quarterly sales tax reports for all
sales at the Facility within 30 days of Parks Director's written request therefor. Failure
to provide said copies is cause to terminate this Lease.
8. Taxes. Pro must pay any and all assessments or taxes, however incurred, arising
from the use of the Facility, the sale of merchandise or services pursuant to this
Contract, including without limitation sales or use taxes, ad valorem taxes, and federal
income taxes prior to the taxes becoming past due.
9. Utilities. City, as owner of the Facility, will provide electrical, gas, water, and
wastewater service to the Facility. In managing the Facility, Pro must practice energy
conservation efforts to efficiently use water, electrical and natural gas resources.
10. Insurance.
A. General Liability. Pro shall secure and maintain a comprehensive general liability
insurance policy to include Contractual liability coverage with minimum limits of Five
Hundred Thousand Dollars ($500,000) combined single limit. The City of Corpus Christi
shall be named as an additional Insured on the policy. The comprehensive general
liability policy carried by the Pro under this Contract is the primary coverage in case of
loss or damage related to Pro's operation of the Facility. A copy of the policy shall be
submitted to the Director for approval prior to commencement of this Contract.
B. Insurance Certificate. As evidence of the insurance coverage required by this
Contract and prior to execution of this Contract, the Pro shall furnish certificate(s) of
insurance to the Director. The Certificate(s) will specify parties who are additional
(;;\(Doyie.03.05\PARK&REC.27\HEBT en.Cntr\05.0525DC.SDenton.K&lease.doc
Page 6 of 8
insured and will indicate what endorsements are included and what exclusions are
removed.
C. Cancellation Notice. There shall not be any cancellation, material change, or intent
not to renew the insurance policies without thirty (30) days prior written notice to the
Director.
D. Worker's Compensation. Pro shall secure and maintain worker's compensation
insurance_
11. Assignment. This Contract is a personal service Contract and is not assignable.
12. Termination. The City Manager, may, after 45 days advance written notice and
opportunity to cure, terminate this Contract for a material breach by Pro of the
Contract if breach has not been cured, provided, however, the City Manager, may
immediately terminate this Contract if Pro's violation involves: misappropriation of
funds due the City, failure to produce financial or accounting documentation as required
herein, or a serious or imminent danger to the public. Pro may terminate this Contract if
the Pro provides the Parks Director 45 days advance written notice. This Contract will
terminate immediately upon the death of Steven B. Denton. Further, this Contract will
be terminated upon the inability of Pro to perform the duties hereunder for 120
consecutive days.
13.City Responsibilities.
A. Ownership. City owns the H.E.B. Municipal Tennis Center facilities, all
improvements, and buildings located thereon; the furnishings and equipment for the
locker room/restroom area, as shown on Exhibit 1 attached hereto and made a part
hereof for all purposes; and the office equipment, including without limitation, a cash
register and basic supplies, located in the Pro Shop andlor office.
B. Telephone. City will pay for one telephone for local calls.
C. Security. City has installed security equipment, including sound and movement
detectors, in the Pro shop and concession building. The Pro must pay the monthly bill
for the security services.
D. Facility Maintenance. City is responsible for all Facility maintenance and major
and minor repairs at the Facility to the extent shown in Exhibit 2; and in consideration
thereof, it is agreed that Pro must make no claim for any damages against the City for
loss of income due to the City's failure to make any repairs.
E. Janitorial. City will clean the Facility and will provide all cleaning supplies.
F. Promotion of Facility. City shall continue its promotional activities for the Facility,
including brochures and listings in departmental literature.
C:\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&lease.doc
Page 7 of 8
14. Indemnity. Pro must fully Indemnify, save and hold harmless City, Its officers,
employees, and agents (hereinafter "the Indemnltees" against any and all
liability, damage, loss, claims, demands and actions of any nature whatsoever on
account of personal Injuries (Including, without limitation on the foregoing,
workers' compensation and death claims), or property loss or damage of any kind
whatsoever, which arise out of or are In any manner connected with, or are
claimed to arise out of or be In any way connected with, tennis related activities
undertaken pursuant to this Tennis Pro Contract and Lease of H.E.B. Municipal
Tennis Center or any operations or activities thereunder, regardless of whether
the Injury, loss or damage shall be caused by, or claimed to be caused by, In
whole or In part, the negligence or other fault of the Indemnltees or any of them.
Pro shall at Its own expense Investigate all these claims and demands, attend to
their settlement or other disposition, defend all actions based thereon and pay all
charges of attorneys and all other costs and expenses of any kind arising from
the liability, damage, loss, claims, demand, and actions.
15. Notices. Notice may be given by fax, hand delivery, or certified mail, postage
prepaid, and is deemed received on the day faxed or hand delivered or on the third day
after deposit if sent certified mail. Notice must be sent as follows:
IF TO CITY:
City of Corpus Christi
Attention: Director, Parks & Recreation
P.O. Box 9277
Corpus Christi, Texas 78469-9277
FAX No: (361)880-3464
Phone No.: (361) 880-3461
IF TO PRO:
Steven B. Denton, President
Total Tennis, Inc.
4902 Saratoga #f3
Corpus Christi, Texas 78413
Phone No. (361) 994-8929
16. Amendments. Modifications to this Contract are not effective unless signed by a
duly authorized representative of all parties hereto. Modifications that do not change the
essential scope and purpose of the Contract, specifically including without limitation the
amount of the monthly Pro fee, may be approved on behalf of the City by the City
Manager.
17. Publication. Pro must pay the costs of newspaper publication of this Contract and
Lease and related ordinance as required by the City Charter.
C::\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&Lease.doc
Page 8 of 8
18. Effective _~ This Contract is effective on final approval by the City Council.
SIGNED thii~~ay ofJW&.-:2005.
ATTEST:
CITY OF CORPUS CHRISTI
Armando Chapa
City Secretary
George K. Noe
City Manager
~ May 2005
Doyle D. Curtis
Chief, Administrative Law Section
Senior Assistant City Attorney
For City Attorney
~~
Steven B. Denton, President
Total Tennis, Inc.
Ord.D~H~7 AUTHO~IZED
BY COUNCIL '7/(1/0S
,k..--(~
.: T III I CITY SECRETARY
C:\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525OC.SDenton.K&Lease.doc
Page 1 of 2
EXHIBIT 2
DETAILED CONDITIONS FOR FACILITY MAINTENANCE
CITY OF CORPUS CHRISTI, TEXAS
HEB Tennis Center
Tennis Pro Contract and Lease
With
Total Tennis, Inc. (Steve Denton, Pro)
This Exhibit 2 contains detailed conditions for facility maintenance for HEB Tennis
Center ("Facility") defined in, and is attached to and govemed by, the CITY OF
CORPUS CHRISTI, TEXAS Tennis Pro Contract and Lease Agreement with Total
Tennis, Inc., Steve Denton ("Pro").
1. City Responsibilities
1.1. City Maintenance Staff The City will assign an on-site employee (Tennis
Center Worker) to perform routine maintenance as described below. The Tennis
Center Worker will report to work at the HEB Tennis Center on Monday,
Tuesday, Wednesday, and Thursday for 4 hours in the afternoons and all day
Friday of the work week. On Monday, Tuesday, Wednesday and Thursday
mominos the employee will report to AI Kruse Tennis Center. Overtime will only
be allowed by prior authorization of the Parks and Recreation Superintendent
assigned to the tennis division.
1.2. Tennis Courts The Park Operations mobile crew will power-wash the open
courts on a six week cycle and the covered courts on a weekly cycle. Rolling
and squeegeeing of the courts are not part of the City's on-site or mobile crew
responsibilities. Pro will be responsible for rolling and squeegeeing the courts
after a rain event to avoid damaoe to the court surface. City will assist tennis
center staff in replacing tennis nets, center straps and bindings; however, Pro
will be responsible for preparing the nets for tournaments.
1.3. Buildings The Tennis Center Worker will maintain the bathrooms/dressing
rooms; clean and sanitize commodes, urinals, sinks, and showers daily and as
needed; sweep and mop floors daily and as needed; strip and wax floors
quarterly; pick up litter daily and as needed; keep up with all paper goods daily
and as needed; clean windows monthly; replace all domestic lighting (general
bulbs and fluorescent tubes); make general minor repairs to facilities including
plumbing (with assistance from Park Operations mobile crew if needed). Any
maintenance related to facility painting, park furniture repair, and restroom
painting will be accomplished by Park Operations mobile crew when resources
are available.
1.4. Grounds The Tennis Center Worker will pickup litter daily and as needed; bag
and manage all trashcans as needed; inspect fencing and lumite daily and make
C:\(Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&Lease.Exhb2.doc
Page 2 of 2
necessary repairs; fill holes and level ruts in all areas; and clean and remove
graffiti when present.
1.5. Gardening and landscaping Park Operations mobile crew will perform all
mowing, trimming, and clean up; watering and minor irrigation repairs. The
Tennis Center Worker will prune shrubs, trees and rose bushes; clean up brush;
maintain all f10werbeds (includes removing weeds, preparing and planting
seasonal plants to enhance the facilities; spray insecticide, herbicides,
fungicides, weed killer and treat for ants when needed.)
1.6. Capital Improvements City will fund needed capital improvements
(determined by the City) at its discretion as funding becomes available.
1 .7. Contact Person For the Lease, the City's contact person is the Parks and
Recreation Director.
C:~Doyle.03.05\PARK&REC.27\HEBTen.Cntr\05.0525DC.SDenton.K&l.e.se.Exhb2.doc