94-021 Profesional Services Agreement, Lifetime TennisRESOLUTION NO. 9115
A RESOLUTION OF TtIE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF CONTRACT
BETWEEN CITY OF CUPERTINO AND TENNIS PRO LIFETIA1E
TENNIS, CUPERTINO SPORTS CENTER
WHEREAS, there has been presented to the City Council a contract between the
City of Cupertino and Tennis Pio Lifetime Tennis provirling for tennis instruction at the
Cupertino Sports Center; and
WHEREAS, the terms. conditions az,d provisions of the contract have been
reviewed and approved by the r:ity Attorney and the Director of Parks and Recreation .
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby approves the aforementiont:d contract and authorizes the Mayor and
City Clerk to execute said agreement on behalf of the City of Cupertino.
PAS~ED AND ADOPTED at a regu!ar meeting of the City Council of the City of
Cupertino this ~!-day of June , 1994 by the following vote:
~ Members Qf ~ Ci!)'. Council
A YES: llautista, Burnett, Sorensen, Dean
NOES: N,ine
ABSENT: Koppel
ABSTAIN: N,me
A TIEST: APPROVED:
/s/ KiM Marie Smith I s l Wa lly Dea n
City Ckrk :,.,.1ayor. City of Cupertino
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l'l :RC'IIASI : ORDER NO .--'
PERSONAi. SLRVICFS N:Hl:l :"1' 'T
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TIIIS AGREEMENT. maJc anJ cnrcrcJ into this _!_~1
_ Jay of _ Ju£.y'
1994. by anJ hctwc:cn rhc CITY OF CUPERTINO. a municipal c.:orpnratio:1 of
California. hereinafter refcrn:J to a s "CITY ". and DANA K. GILL and MICilAEL A.
SCADDEN. general partners in · LIFETIME TENNIS wirh o ffices at 4800 La Fies ta
Place. San Jose. CA. 9-"129. hereinafter rcfi:m:J to as "TENNIS PRO":
WITNESSETII :
WHEREAS. CITY wishes 10 re1ain se n·ices in conjum:tion w i1h proviJing !cnnis
lessons to city s ponsored gro up s al 1he Cupenino ~~pons Cenrc.:r : and
WHEREAS. CITY wishes to engage TENNIS PRO to provide these services hy
reason of its qualifica1ions and experienc.:e for performing suc.:h s ervices. and TENNIS
PRO Ins offered to provide tr.e reouireJ :-e rvi ces on the terms and in the manner set
forth herein;
NOW. THEREFORE. in consideration of their mutual c.:ovenants. the parties
hereto agree as follows :
I . DEEINITJ~.
(a) The word "City" as used in this agrcerm:111 shall mean and includc
all the territory lying within the municipal houndaries or the City of Cupertino.
California, as presently existing. plus all territory which may he added thcreto during
the term of this a!!reeiru;nt hy anm:xation or otherwise.
(h) The term "Ci ty Manager" shall mean thc duly app<'inted City
Manager of the City of Cupertino. California. ur his designateJ rcprcsc:ntative .
(c) The term "City At1orney" s hall mean the duly appointed City
Attorney of the City of Cup::rt;no. Ca lifornia, or his desigr,atcd representative .
(d) The term "C it y Clerk" shall mean the duly appointed City Clerk of
the City of Cupertino, California . or her designated representative .
(e) The term -Persona l Sen :c es·· s hall mean the providing of tennis
instructions by Tenni s Pro o r hi s cr:ip!;iyees at !he Ci ty 's Sports Center.
COORDJliLUION OF SERYlCLS .
(a) ~-The City Manager shall he the reprcse111a1ivc or the C ITY for
all purposes under this agreement. Stephen G . Dowling. Din:clor of Parf..s .111d
Recreation. is hereby dt'si g natcd as tht: SERVICE COORDINATOR for the City
Manager. and s hall s upervise the progress and execution or this agreerrn:nt.
(b) Tuoois Pro . DANA K. GILL and MICIIAEL A . SCADDEN shall
have overall responsi~ility for the progress and execution of this aµreement.
3. 12.UTIES Of TIIE TEN NIS PRO .
(a) Services to be Furnislu.:d . TENNIS PRO shall provide all spccifit.:d
services as set forth b.:Jow :
(1) Tennis lessons for all city -s ponsored groups as dclcnnim:d hy the
CITY. Class size and court usage s hall he established and approved hy the CITY .
(2) May give private tennis lessons utili 1.in g court 12 of the Cupertir,o
Sports Ct:nter and any other court approved hy the CITY. provided. however th ;tt !he
CITY shall have the sole right to establish the use of :ill tennis courts at the Sports
Center and the TENNIS PRO's right to give private lt:s :,;ons on any court is subject to
the CITY's right to priority usage for the CITY s ponsored activiti~s.
(3) All lessons above descrihed shall he provided ai a quality consistent
with the standards fou!id in other tennis facilities in the area which are open to the
public .
(4) During the winter anJ surn!TWr se~.:,ions. will di s tribute to each
tennis pupil an evall!ation form prepared hy the CITY and de sig m:J for pupil to
evaluate of the level of instruction given. a nd will. at th<.: conclusion (lf <.:ach session.
return all compietcu evaluation forin-; to the CITY .
(5) Will provic.k all necessary and appropriat<.: ec!uiprnent for rh<.:
purpo se of t<.:.1c hing "high quality tenni :; lessons.·· including. hut not limitt:d tn. t<.:nr1is
balls and hall machines . Such ..-quiprm:nt :,hall be :;toreJ at the Cu pt:rtino Sports Center
in space provided by CITY adjacent to court //12.
(6) Will re s pond in writing to all public comp1.1i111s 110 later than two (2)
days after the complaint was r<.:gis tcn:d . Both complaints ,i nd responses will he
documented and forwarded to the CITY 11<> later than the first of each month .
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\7) Will 11:arh lessons ha:-.nl on the following minimum and maximum
m1rnht:r pf ~tut.!ents :
Small Group Lessons
Large Group (,es-.ons
Pee Wee Lessons
Minimum
J
4
.'i
M.;1ximum
4
8
10
The minimum and maximum numher of students may he modified hy
mutual agreement.
(h) Lill.vs to be Observed. TENNIS PRO and his employees shall ohey
all rules. regulations. and law~: of the CITY or ;my other governmental agency and
shall prrn.:un:. at his sole rnst. all permits and licenses required for hi s conduct of
husiness at the Sports Center .
(c) Colkc1ion of fees and Char~cs. All fees and charges for the
scrvil:es pro v ided by TENNIS PRO s hall he rnllec1~d from the puhlic hy the CITY.
4. COMPENSATION. for the full performance of the services Jescribed
herein by TENNIS PRO, CITY shall pay TENNIS PRO 80 % o r all gross re .. enue
received hy CITY for the TENNIS PRO 's services to he paid as follows :
(a) Payments for lessons given to city-sponsoreJ groups shall he paid
within thirty (30) days of the beginning or each class session .
(h) J>ayrm:ms for private le :;sons shall he paid wi1i1in thirty (30) days of
commencing instruction.
(c) Thi: CITY shall pro v idt.: TENNIS J>l{O a wrillt.:n mrnllhl y accounting
of all monies ri:ccivctl pursuant 10 this agrecmenl. Unless written objections 10 any
particular accounting is received hy C ITY from TENNIS PRO within thirty (30) Jays
of receipt, such accouming shall he tk.:med IO he final .
(ti) The fees and chargcs for all i<:ssons both for city -sponsored and
private pupils will he cslal~lisheJ solely hy the CITY pursuant 10 its normal procedure
for establishing such fees a11d ch;\rgcs.
(c) E.M.;Jusivc l'riviki;c . During the term of thi s agre<:m<:I1l. TENNIS
PRO is granted the exclusive privilege of providing tennis instruction al the Cupertino
Sports Cent<:r othcr than tha: which is proviued hy C ITY employees in connection with
city -s ponsored programs.
5 . TERM AND EARLY Tl..:RMJNATJON . The scrviccs 111 he rerformed
hereumkr shall commence on June 20. 1994. and shall continue. unless earlier
11:rn1inatetl pursuant to this agreement until June 19. 1995 when thi, rnntract shall he
automatically t.erminatetl . Either party may terillina!e this agreement at an earlier time
than a hove specified hy giving ninety (90) days written noticc to thc othcr party .
6 . TERMINATION FOR UREACII . No:withstamling the provisi(lm of
section 6 ab,ve, should either party he in dcfault in the performance of this agrecmcnt
or materially breach any of its provisions. the non-breaching party may. at its option.
immediately terminate this agreement. hy giving written notification to the other party .
7 . TEMPOR.A.RY SUSPEN..S.10..N . The City Manger shall have the
authority to suspend this agreement. wholly or in part, for such period as he ('':t:ms
necessary due to unfavorable conditions or to the failure on the part of the TENNIS
PRO to perform any provi s ion of this agreement.
8. ASSIGNMENT: SUBCONTRACIQRS: EMPLOYEES.
(a) Assj~nment. Both parties shall giv•.: their personal attention to the
faithful performance of this agreement and shall not assign , transfer . t:l>nvey. or
otherwise dispo se of this agreement or any right, title, or interest in Pr to the same o r
any part thereof without the prior wrinen consent of the other part y. and then only
subject to such terms and conditions as the other part y may require . /\ consent tu one
assignment shall not he deemed 10 he a cPnsent to any subsequent assignment. /\ny
assignment without such approval shall be void and. at {he option or the other party .
shall terminate this agreement and any license or privileg e granted herein. This
agreement and any interest herein shall nor he :issignahle hy op...:rarion of law without
the prior written consent of the other parr.y.
(h) 5.l..!bcontrac.:wrs: bupl(~. TLNNIS PRO shall he responsihle for
employing or engagir,g all persons necessary to perf .. >rm the services of TENNIS PRO
hereunder. No suhcontractor of TENNIS PRO will he recognized hy CITY as such;
rather. all subcontractors are deemed to he employees of TENNIS PRO. and it agrees
to he responsible for their performance. T E NNIS PRO shall give its personal attention
to the fulfillment of the provisions of this agreement hy all of ir.s employees and
subcontr:1ctors. if any. anJ shall keep the work under its control. [f any l'.mployee or
subcontract<>r of TENNIS PRO Jails or refuses I</ carry out the provision s of this
agreement 01 appears to he ;ncompd•~nt or to act in a disorderly or improper m.rnner.
he shall be dischar)'' d immediatel y from tht: work under this agreement on demand of
the CITY.
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9 . NQllC.ES . All 1101icc s lwrcundn shall he given in wriring and 111ailt:d.
prn,tage prepaid. hy certified mail. aJdrcsseJ a-. follows :
10.
TO CITY : Office of the C iry Clt:rk
I 0300 Torre t\ venue
Cupertino. Ct\ <J:'i014
TO TENNIS PRO : UFETrME TENNIS
Ot\NA K . GILL
4800 La Fiesra Place
San Jose, CA 95129 .
INTEREST OF TENNIS PRO . TENNIS PRO covenant~ that it
presently has no interest, and shall not acquire any interest. direct or indirect , financial
or otherwise. which would conflict in any manner or degree with the performance of
the services hereunder. TENNIS PRO further covenants that, in the performance of
this agreement, no subcontractor or person having such an interest shall be employed.
TENNIS PRO certifies that no one who has or will have any financial interest under
this agreement is an officer or employee of CITY. It is expressly agreed that, in the
performance of the services hereunder. TENNIS PRO shall at all times he deemed an
independent contractor and not an agent or employee of CITY .
11 . !NDEMNIIY. TENNIS PRO hereby agrees to indemnify and save
harmless CITY. its ofricers. agents. and employees of and from :
' I ~
(a) Any and all claims .inJ dernanJs which may he mac.Jc against CITY.
its officers. agents. o:-employees hy reason of any injury to ()r c.lc.tth of any person or
damage suffered or saqaineJ hy any pers;or1 or corporation caused hy . or alleged to
have been cau~:cd hy, any act or omission. negligent or otherwise. of TENNIS PRO ,ir
any :;uhcontractor under this agreemcnl or of TENNIS PRO's or any suhcontraccor's
employees or agents;
(b) Any and all c.lamagt: ro or c.lcstruccion of !he property of CITY, its
officers, agents, or employee~ occupieC.: or used by or in 1t:e can:. custody. or control
of TENNIS PRO, or in proximity lo the site of TENNIS PRO's work, causcc.l hy any
act or omission, negligent or othl'rwise, of CONTRACTOR or any subcontraclnr under
this agreement or of TENNIS PRO's or any subcontractor 's employe1:s or agents.
(c) Any and all claims and demands whi c h may be mat.le against CITY.
its officers, agents, or employees hy reason of any injury 10 or death of or damage
suffered or sustained hy ~ny employee o r agent of TENNIS PRO or any suhcontractor
under this agreement, however caused, excepting, however . any such claims and
demands which are the result of the so le negli ge nce or willful rnisconc.lucl of CITY, it s
officers, agents, or employees;
(J) Any an~ all claims and demanJs which may he made a!!ainst CITY.
its officers. agents. or employees hy reasm1 of any infringement or alleged
infringcmcnl of any patent rights ,ir claims c.:ausecJ or alleged 10 have IY.:cn caused hy
the sue of any appara1us. appliarke. or materials furnished hy TENNIS PRO or any
suhcontrac.:ror under this agreem•.:111: anJ
(e) Any and all penalties imposed or damages sought on ac.:count of rhe
violation of any law or regulation or of any !•.:rm or rnndition of any permit.
TENNIS PRO, .it its_ own cost. expens7, and risk , shall defend any and
all suits. actions. or other legal proc.:eedings that may ·he hrought or instituted hy third
persons against CITY. its officers , agenls, or employees on any of the :tbove claims or
demands of sucli third persons. or co enforce any of the ahovc penaltie::. and pay and
satisfy any judgment or decree thal may he rendered :.tgainst CITY. its officers. agents.
or employees in any such suit, action. or other legal proceedings.
12 . WORKERS' COMPENSATION. TENNIS PRO certifies that it is
aware 0f the provisions of the Labor Code of the State of California which require
every employer to he insured against lia~ility for workers' wmpensation or to
undertake self-insurance in accordance with the provisions of that code, an:! it certifies
that it will comply with such provisions hefore commencing the performance of the
work of this agreement.
13 . INSURANCE. TENNIS PRO. at its sole cost and expense. shall ohtain
and maintain in full force and effect throughout the entin: term cf this agreement the
insurance coverage of at least a "B" rating as determineJ tn accordance with tht:
insuranct: industry ~tandard. insuring 1101 only TENNIS PRO. hut also (wi1h the
except ion of workers· compensation and t:mployer' s I iahil ity insurance). CITY. its
officers. agents. and employet:s. anJ each pf them with respect to activities anJ
st:rvices performed by TENNIS PRO for or on behalf of CITY unJer the provisions or
this agreem.::nl.
Certificates of suc.:h insurance. prekrahly on tht: forms proviJed hy
CITY. shall ht: filed with CITY concurrt:ntly with the execution of this agreement or.
with CITY's approval. within ten <IO) cfays 11··.:reafter. SaiJ certificates shall be suhjcct
to the approval of the City Attorney and ~hall contain .tn endorsement stati~g that said
insurance is primary coverage anc.l will not he cancelled or altert:d by the insurt:r except
after filing with the City Clerk thirty (30) Jays' written notice of such cancellation or
alteration. and that tl1'~ City of Cupertino is named as an aJJitional insurd . Current
certificates of such insurance shall he kept on file at all times during the term of this
agreement with the City Clerk .
14. AGREEMENT BIN~ING . The terms .. covenants, anJ conditions of this
agreement shall apply to, and shall hinJ. the · ht:irs. ~uc cessors, executors.
administrators , assigns, and subc o ntractors or hoth pa nics.
(,
1.'l . WAIVERS . The waiver by either rart y or any brea c h or violation of
· any term. <.:ovcn:mt. or condition of this agreement or an y provi s ion. ordirrancc, or law
shall not he deemed to he a waiver of any other term. <.:nven.1111. rnndition. ordinance.
or lc1w or of any suhscqucnt hrca<.:11 or violation of the same or of any other rcrrn.
covenant. condition. 0 rdinancc. or law . Thc suhsequcnt ac<.:cprance hy either party of
any fee or other money whid1 may become <.iuc hereunder shall nor he dt:emed to he a
waiver of any prec1:ding hreach or violation hy !he other party of any term. <.:ovenant.
or comJition of this agreement or of any applicahlc law or ordinan<.:c .
16 . COSTS AND A'CfORNEYS FEES. The prevailing party in any action
brought 10 enforce !he terms of this agreement or arising out of this agreement may
reccvcr ils reasonahle costs and artorncys' fees expended in connection with such an
action from the other party .
17 . NONDISCRIMINATION. No discrimination shall he rr..1dc in the
employment of persons under this agrecment becausc of the race. color, national
origin, ancestry. religion or sex of such person . If the value of this agreement is. 1)r
may be. Five Thousand Dollars ($5.000) (Jr more, TENNIS PRO agn:es lo meet all
requirements of the Cupertino Municipal Code pertaining to nondi sc rimination in
employment and to complete and s ubmit the "Compliance Rcport --No ndiscrimin,!lio n
Provisions of City of Cupertino Contracts" on the form furnished by CITY .
If TENNIS PRO is found in violation of the nondiscrimination
prov1s1ons of the State of California Pair Employment Practices Ace or similar
provisions of federal law or executive order in the performar.ce of this agreement. it
shall thereby be found in material hreach of this agreement. Thereupon. CITY shall
have the power 10 cancel or suspend this agreement. in whole or in part . or to deduct
from the amount payable to TENNIS PRO the sum of Twenty-riv.: Dollars ($25) for
each person for each calendar da y during which said person was di scri minated against.
as damages for said hreach of cor1tract. or both . Only a rinding of the State of
California Pair Employment Practices Commission or the equivalent federal agency or
officer shall constitute eviuence of a viol;ition of' contract under this paragrarh .
If TENNIS PRO is found in violation of the nondiscrimination
provisions of this agreement or the applicahle affirmative action guidelines pertaining
to this agreement, TENNIS PRO shall he found in material hrcach of this agreement.
Thereupon. CITY s hall have the power to cancel or suspcnd thi s agreenl'.:n t. in whole
or in part. or to deduce from Che amount paya ble co TENNIS PRO the sum of' Two
Hundred Pifcy Dollars ($250) for each cdendar day during which TENNIS PRO is
found to have been in s uch noncompliance as damages for said hreach of' contra<.:!. or
hoth .
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18. AGREEMENT CONTAINS ALL UNDERSIAN121NUS. This
document represents the entire and integrated agreement hctween CITY and TENNIS
PRO and supersedes all prior negotiations. representations. or agrl.!cments. either
written or oral. This document may he amended only hy wrillcn instrument, signed by
holh CITY a1,1 TENNIS PRO . All provision~ of this agreement arc expressly made
condi:ions. This agreement ~hall he governed hy the laws of the State of California .
IN WITNESS WHEREOF, CITY and TENNIS PRO h:ive executed this
agreement the <lay and year first ahovc ,·1ritten .
ATTEST
/
l~;;c ~/r~tl
City Clerk
APPROVED AS TO FORM:
Dana K. Gill. Tennis Pro
4800 La Fiesta Place, San fose CA 95 I 29
Address
408-554-6060
Telephone
~5 -1 -f3 t -I {J ,:). 3 ))0
Social Security numher
or
Tax J.D. number
CITY OF CUPERTINO
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