12-033 Amendment #3 dated 4-22-24 for Tennis Instruction and SupervisionTHIRD AMENDMENT TO AGREEMENT 12-033 BETWEEN
THE CITY OF CUPERTINO AND LIFETIME TENNIS INC.,
DBA LIFETIME ACTIVITIES INC. FOR INSTRUCTION AND
SUPERVISION OF CAMPS, CLASSES, LESSONS, RETAIL
SERVICES, AND COURT MAINTENANCE
This Third Amendment to Agreement 12-033 is by and between the CITY OF
CUPERTINO, a municipal corporation (hereinafter "City") and Lifetime Tennis Inc., DBA
Lifetime Activities Inc., a California Corporation (“Contractor” or “Tennis Pro”) whose
address is 1901 South Bascom Ave., Suite 1225, Campbell, CA 95008, and is made with
reference to the following:
RECITALS:
A. On 3/20/2012, Agreement 12-033 (“Original Agreement”) was entered into by and
between City and Contractor for tennis lessons, retail service, and court maintenance.
B. On 7/1/2018, City and Contractor entered a First Amendment to the Original
Agreement.
C. On 8/28/2020, City and Contractor entered a Second Amendment to the Original
Agreement.
D. The Agreement, First Amendment, and Second Amendment are collectively
referred to as the “Agreement” unless otherwise indicated.
E. City and Contractor desire to modify the Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as
follows:
1. Compensation
Paragraph 4 of the Agreement is modified to read as follows:
For the full performance of the services described herein by Contractor, the Parties
agree as follows:
Financial Terms: Contractor shall be compensated for services performed pursuant to
this Agreement. The total compensation to the Contractor shall not exceed
$18,400,000. For the services provided to the City pursuant to Exhibit A, Contractor
shall retain a maximum of 84% of the total annual revenue, as hereinafter defined,
generated by the programs managed by Contractor at the Cupertino Sports Center
and Memorial Park courts. Total annual revenue shall include, but not be limited to,
all fees collected by the Contractor for all services, including camps, classes, and
private lessons. Total Annual revenue shall be calculated from the period from July 1
to June 30 of the following year and consist of gross revenue without reduction by any
incurred costs, including but not limited to, credit card fees. Contractor shall remit to
the City 16% of all total annual revenue or $350,000, whichever is greater. In the event
the contract is terminated after July 1, 2024, the amounts due the City shall be
prorated based on the period of July 1, 2024 through June 30, 2025. In performing its
services, Contractor may utilize the City’s retail and office space (detailed under
Exhibit A, section 4), as well as various tennis courts and rooms as designated in the
Program Resource Allocation (Exhibit C). Payments will be made to the City, twice in
each season at the middle and end, and submitted with the financial reports described
in Exhibit A. Seasons are defined as follows:
- Spring (April to May)
- Summer (June to August)
- Fall (September to December)
2. Exhibit A of the Agreement is replaced with new Exhibit A attached hereto.
3. Term. The term of this agreement is extended to December 31, 2024.
4. Except as expressly modified herein, all other terms and covenants set forth
in the Agreement shall remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification of
Agreement to be executed.
CITY OF CUPERTINO
By
Title
Date__________________________
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date__________________________
CONTRACTOR
By
Title
Date__________________________
CEO
Apr 16, 2024
Christopher D. Jensen
City Manager
Apr 22, 2024
Apr 22, 2024
EXPENDITURE DISTRIBUTION
PO #2018-155 570-63-621 700-702
Original $7,600,000
Amendment #1: $10,800,000
Amendment #2: $0
Total: $18,400,000
EXHIBIT A
SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES
The CONTRACTOR will provide INSTRUCTION AND SUPERVISION in, but not limited to, the
following:
TENNIS, BADMINTON, TABLE TENNIS, BASKETBALL, VOLLEYBALL, PICKLEBALL AND CHESS
1. Duties of Lifetime Tennis Inc., DBA Lifetime Activities Inc.
a) Class and camp instruction for all City-sponsored groups as determined by the City.
Class size and court usage shall be established and approved by the City. All
instruction shall be provided at a quality consistent with the standards found at other
facilities in the area which are open to the public.
b) Will provide all necessary and appropriate equipment for the purpose of teaching
high quality programs, including, but not limited to, tennis balls, ball machines, nets,
and table tennis tables. This equipment shall be stored at the Cupertino Sports Center
in space provided by Lifetime Tennis Inc., DBA Lifetime Activities Inc.
c) Will respond to all public complaints no later than two (2) days after the complaint
was registered. Both complaints and responses will be documented and forwarded
to the City no later than the first of each month.
d) Financial Reporting – Lifetime Tennis Inc., DBA Lifetime Activities Inc. shall
maintain complete, accurate, and detailed accounting records relating to its
performance in accordance with generally accepted accounting principles and
procedures. Such reports shall, at a minimum, contain: (1) a list of the gross revenues
as shown upon the books and records of Lifetime Tennis Inc., DBA Lifetime
Activities Inc., and which were used to compute the payment to the City during the
period covered by the statement and (2) detailed information regarding the number
participants served, programs, classes, camps, or private lessons rendered, the total
gross revenue received for each services, and the resulting calculation of payment to
the City. Said reports shall be included and submitted as backup documentation
with the payments to the City. The records and supporting documents must be kept
separate from other files and maintained for four (4) years form the date of the City’s
final payment.
e) Auditing – Contractor agrees to make its books and records available to City, or to
any City auditor or representative designated by City, for the purpose of examining
such books and records to determine the accuracy of Contractor’s earning from
Contractor’s business. Such books and records shall be kept for four (4) years and
shall be maintained and/or made available to City’s representative for the purpose
of re-auditing these accounts; except that, if an audit is made within such four-year
period and City claims that errors or omissions have occurred, the books and records
shall be retained and made available until those matters are resolved. If an audit
reveals that Contractor has understated its Gross Receipts, Contractor shall pay City,
promptly upon demand, the difference between the amount Contractor has paid and
the amount it should have paid to City. If Contractor understates its Gross Receipts
by three percent (3%) or more, the cost of the audit shall be borne by Contractor. If
Contractor understates its Gross Receipts with knowledge of such understatement
or by reason of gross negligence, then, in addition to paying for the cost of the audit,
on the first such occasion Contractor shall pay City ten (10) times the amount of the
difference between the amount City should have received and amount City actually
received. A second such understatement made with knowledge of or by reason of
gross negligence shall be considered an Event of Default.
2. Optional Services
a) The City shall have the sole right to establish the use of all tennis courts at the Sports
Center and Lifetime Tennis Inc., DBA Lifetime Activities Inc.’s right to give private
lessons on any court is subject to the City’s right to priority usage for the City
sponsored events.
b) Utilize courts #5 and #6 at Memorial Park for the sole purpose of teaching tennis
lessons (Exception: Lifetime Tennis Inc., DBA Lifetime Activities Inc. is prohibited
from using said courts on Tuesdays from 8:00 a.m. to Noon).
3. Collection of Fees and Charges
a) All fees and charges for classes, camps, and private lessons provided by Lifetime
Tennis Inc., DBA Lifetime Activities Inc. shall be collected from the public by
Lifetime Tennis Inc., DBA Lifetime Activities Inc. The fees and charges for all classes,
lessons, and camps for both city-sponsored and private pupils will be established
solely by the City pursuant to its normal procedure for establishing such fees and
charges.
b) During the term of this Agreement, Lifetime Tennis Inc., DBA Lifetime Activities Inc.
is granted the exclusive privilege of providing tennis instruction at the Cupertino
Sports Center other than that which is provided by City employees in connection
with City-sponsored programs.
4. Retail Service
a) The Retail Service to commence on July 1, 2018, and continue through December 31,
2024.
b) The Retail Service that Lifetime Tennis Inc., DBA Lifetime Activities Inc. will be
offering at the Cupertino Sports Center will consist of the following:
• Racquet restringing for tennis and racquetball racquets.
• Re-Gripping service
• Various accessories for tennis, pickleball, badminton, and racquetball
• Tennis racquet demo program and tennis racquet sales
• Ball machine rental
• Pre-packaged food and beverages
c) The Retail Service will be located in the existing pro shop space located next to the
lobby of the Cupertino Sports Center.
d) Hours of Operation
• Monday-Saturday 8:00 a.m. – 9:30 p.m.
• Sunday 8:00 a.m. – 8:00 p.m.
Any changes to the hours of operation must be authorized by the City representative.
e) Monthly Financial Statements – No later than fifteen (15) days after the end of each
month Lifetime Tennis Inc., DBA Activities Inc. shall submit to the City of Cupertino
a written statement for the preceding month showing the gross revenue and
expenses for the Retail Service.
f) Court Maintenance - Lifetime Tennis Inc., DBA Lifetime Activities Inc. is to provide
at its own expense, weekly maintenance services for all 18 tennis courts at the
Cupertino Sports Center. This service is to include biweekly court washing and
alternating biweekly court blowing/sweeping. In addition, Lifetime Tennis Inc., DBA
Lifetime Activities Inc. will provide all necessary materials to provide these
maintenance services. Materials include, but are not limited to, court washing
wands, industrial grade hoses, hose carrier cart, portable air blower, and toolkit.
5. Facility Closure
a) The City reserves the right to close the facility for maintenance, for five consecutive
weekdays, once per fiscal year, commencing in the fiscal year 2019/2020. The City
will consider programming schedules and high traffic times of the facility when
scheduling the closure.
Location and Time of CONTRACTOR Services:
Refer to the Recreation Schedule dated SUMMER 2018 - FALL 2024 for agreed upon dates, times, and
locations of a class, camp, activity, program, or service (“class”). The City, at its sole discretion, may
change the agreed dates, times and locations of a class, or may cancel a class.
Eligible Participant Minimum and Maximums for CONTRACTOR Services:
Minimum: 2 - 4
Maximum: 99
If less than the required minimum number of participants enroll in and pay for a particular class as
identified in the schedule before the class is scheduled to start, the City may cancel the particular class
and/or terminate this Agreement without additional notice or payment to Contractor.
List of all Contractor Employees working for the City of Cupertino (if no Employees, identify “self”):
See attached list of employees.
Performance of CONTRACTOR Services
Class Cancellation
Contractor will only receive compensation for a class that is performed. If performance of a class is
cancelled by the City or Contractor before instruction begins, Contactor will not receive compensation
for the class. If the City or Contractor cancels performance of certain meetings of a class, Contractor will
only receive compensation for those meetings of the class that are performed.
In the case Contractor unilaterally cancels performance of a class without City approval, City reserves
the right to immediately and without notice cancel the remainder of classes offered and or performed
by Contractor.
COVID-19 Health Order Compliance
Contractor acknowledges that its duty to comply with Laws, as stated in Section 13 of the Agreement,
includes compliance by Contractor with any restrictions on travel or social distancing or other
requirements set forth in any health order issued by any local, state, or federal authority, and any other
local, state, or federal laws or policies that have been or may be enacted in response to the COVID-19
pandemic (collectively, “Health Laws”). Contractor shall comply with all applicable Health Laws when
preforming work under this Agreement. If this Agreement specifies work that cannot be performed in
compliance with the Health Laws, Contractor shall refrain from conducting the work and immediately
inform the City. Contractor shall likewise comply with any City protocols designed to help prevent the
spread of COVID-19. Contractor acknowledges that the need to comply with the Health Laws may
result in the City canceling performance of any class or meetings of a class referenced in this Agreement.
Registration, Enrollment, and Supervision
Participants may not take part in the program unless they are listed on the class roster or can show
proof of enrollment. All participants and volunteers need to complete the City’s Waiver of Liability
form prior to taking part in the program. If applicable, contractors who are responsible for supervising
minors must remain with the class until a parent of legal guardian has arrived and all minors are
released to them.
Injury of a Class Participant
In the event of an injury occurring to a participant, the Contractor will notify the City within 1 hour
and complete an Incident Report in the form approved by the City. The Incident Report must be
submitted to the City within 24 hours of the injury occurring.
Instruction and Supervision
Final Audit Report 2024-04-22
Created:2024-04-02
By:Webmaster Admin (webmaster@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAN61IYbXa9x4n32qjHTnqLt0-hBdcvF1X
"Instruction and Supervision" History
Document created by Webmaster Admin (webmaster@cupertino.org)
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Agreement completed.
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