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HomeMy WebLinkAboutC2008-365 - 9/30/2008 - ApprovedPage 1 of 9 Tennis Pro Contract & Lease of HEB Tennis Center Cory Brooks THE STATE OF TEXAS § KNOW ALL BY THESE PRESENTS: COUNTY OF NUECES § This Contract ("Contract") is between the City of Corpus Christi, a Texas home-rule municipal corporation ("City'), and Cory Brooks of Nueces County, Texas ("Pro"). This Contract is a Tennis Pro Service Contract and a Lease of the H. E.B. Municipal Tennis Center ("Facility'). In 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. This Contract is effective on final approval by the City Manager. 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 2008-2009, 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 month 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. Pro Supervision of Facility. Pro is directly responsible for supervising the Facility, including without limitation, all activities in the locker/restroom. 2008-365 09/30/08 Res. 027873 Cory Brooks Page 2 of 9 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 employees and independent contractors 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 Pro. All of Pro's employees must be fully qualified to perform all Contract services pertormed 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. H. Taxes. Pro, at his expense, will pay all payroll taxes, F.I.C.A. taxes, and all other related taxes prior to the past due date. Page 3 of 9 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. A schedule of hours of operation for the Facility must be posted at the Facility and filed with the Parks Director. 2. Pro shall promote the game of tennis through youth programs. 3. Pro must each month submit to the Parks Director a program of activities for the forthcoming month 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. 0. 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. Page 4 of 9 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, tournaments, league play, summer camps, 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 5% of 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. Page 5 of 9 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. 70.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 Page 6 of 9 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 Pro. Further, this Contract will be terminated upon the inability of Pro to pertorm 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 and/or 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 ^^^^^^^om~oc~uim; lounge 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. 14.Indemnity. Pro must fully indemnify, save and hold harmless City, its officers, employees, and agents (hereinafter "the Indemnitees") against any and all Page 7 of 9 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 /ndemnitees 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: Cory Brooks. 4901 Saratoga #127 Corpus Christi, Texas 78413 Phone No. (361) 215-3111 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. Page 8 of 9 18. Effective Date. This Contract is effective on final approval by the City Manager. SIGNED thisday of _ F~1~Z_, 2008. ATTEST: Armando Chapa City Secretary Approved ~~ • I ~~ 2QOP ~. M-L ~' ISC ~""' Lisa Aguila, Assistant City Attorney For City Attorney me on October ~ ~ , 2008, by SECftfTARY TENNIS PRO, "Pro" Cory Brooks STATE OF TEXAS ' COUNTY OF NUECES ' This instrument was acknow Cory Brooks. ~+o`'"=""~'~`~ DONNA I. DELEON `• ~ 7° i Notary Public l ~~~~ STATE OF TEXAS ``ry'?or'~'•0' My Comm, Exp, 08.11.2012 CIT ~OF CORPAPUS CHRISTI r~Kr/ ity Manager AUTNOR1Lt~ 3r ctwlvcn Public, State of Texas Printed name~Plfl0. J- • ~J~~-.. Commission expires: III I ZOl a-- Page 9 of 9