05-018, Lifetime Tennis
ACCOUNT NO. 630-6450-714
CONTRACT AMOUNT $650,000 annually
PURCHASE ORDER NO.
PROFESSIONAL SERVICES AGREEMENT
(Tennis Pro)
THIS AGREEMENT, made and entered into this 26 day of February
, 2001, by and between the CITY OF CUPERTINO, a municipal corporation of
California, her~inafter referred to as "CITY", and DANA K. Gill, general owner
in LIFETIME TENNIS, INC. with offices at 3091 Atherton Drive, Santa Clara, CA,
95051, hereinafter referred to as "TENNIS PRO";
WITNESSETH:
WHEREAS, CITY wishes to retain services in conjunction with providing
tennis lessons to city-sponsored groups at the Cupertino Sports Center; and
WHEREAS, CITY wishes to engage TENNIS PRO to provide these
services by reason of its qualifications and experience for performing such
services, and TENNIS PRO has offered to provide the required services on the
terms and in the manner set forth herein;
NOW, THEREFORE, in consideration of their mutual covenants, the parties
hereto agree as follows:
1. DEFINITIONS.
(a) The word "City" as used in this agreement shall mean and
include all the territory lying within the municipal boundaries of the City of
Cupertino, California, as presently existing, plus all territory which may be added
thereto during the term of this agreement by annexation or otherwise.
(b) The term "City Manager" shall mean the duly appointed City
Manager of the City of Cupertino, California, or his designated representative.
(c) The term "City Attorney" shall mean the duly appointed City
Attorney of the City of Cupertino, California, or his designated representative.
(d) The term "City Clerk" shall mean the duly appointed City Clerk
of the City of Cupertino, California, or her designated representative.
(e) The term "Professional Services" shall mean the providing of
tennis instructions by Tennis Pro or his employees at the City's Sports Center.
2. COORDINATION OF SERVICES.
(a) ~. The City Manager shall be the representative of the CITY
for all purposes under this agreement. Therese Ambrosi Smith, Director of Parks
and Recreation, is hereby designated as the SERVICE COORDINATOR for the
City Manager, and shall supervise the progress and execution of this agreement.
(b) Tennis Pro. DANA K. GILL shall have overall responsibility for
the progress and execution of this agreement.
3. DUTIES OF THE TENNIS PRO.
(a) Services to be Furnished. TENNIS PRO shall provide all
specified services as set forth below:
(1) Tennis lessons for all city-sponsored groups as determined by
the CITY. Class size and court usage shall be established and approved by the
CITY.
(2) May give private tennis lessons utilizing one court of the
Cupertino Sports Center and any other court approved by the CITY, provided,
however that the CITY shall have the sole right to establish the use of all tennis
courts at the Sports Center and the TENNIS PRO's right to give private lessons
on any court is subject to the CITY's right to priority usage for the CITY-
sponsored activities.
(3) All lessons above described shall be provided at a quality
consistent with the standards found in other tennis facilities in the area which are
open to the public.
(4) During the winter and summer sessions, will distribute to each
tennis pupil an evaluation form prepared by the CITY and designed for pupil to
evaluate of the level of instruction given, and will, at the conclusion of each
session, return all completed evaluation forms to the CITY.
(5) Will provide all necessary and appropriate equipment for the
purpose of teaching "high quality tennis lessons," including, but not limited to,
tennis balls and ball machines. Such equipment shall be stored at the Cupertino
Sports Center in space provided by CITY adjacent to court #12.
(6) Will respond in writing 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.
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(7) Will teach lessons based on the following minimum and
maximum number of students/per 1 instructor:
Small Group Lessons
Large Group Lessons
Pee Wee Lessons
Minimum
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4
4
Maximum
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8
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(8) May utilize Courts #5 and #6 at Memorial Park for the sole
purpose of teaching tennis classes.
The minimum and maximum number of students may be modified
by mutual agreement.
(b) Laws to be Observed. TENNIS PRO and his employees shall
obey all rules, regulations, and laws of the CITY or any other governmental
agency and shall procure, at his sole cost, all permits and licenses required for
his conduct of business at the Sports Center.
(c) Collection of Fees and Charges. All fees and charges for the
services provided by TENNIS PRO shall be collected from the public by the
CITY.
4. COMPENSATION. For the full performance of the services
.described herein by TENNIS PRO, CITY shall pay TENNIS PRO based on the
following schedule:
Financial Terms
. City receives 20% of gross revenue up to $300,000
10% of gross revenue $300,000-$500,000
5% of gross revenue $500,000 and above
. City receives $3 administration fee for each tennis transaction.
(a) Payments for lessons given to city-sponsored groups shall be
paid within thirty (30) days of the beginning of each class session.
(b) Payments for private lessons shall be paid within' thirty (30)
days of commencing instruction.
(c) The CITY shall provide TENNIS PRO a written monthly
accounting of all monies received pursuant to this agreement. Unless written
objections to any particular accounting is received by CITY from TENNIS PRO
within thirty (30) days of receipt, such accounting shall be deemed to be final.
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(d) The fees and charges for all lessons both for city-sponsored
and private pupils will be established solely by the CITY pursuant to its normal
procedure for establishing such fees and charges.
(e) Exclusive Privilege. During the term of this agreement,
TENNIS PRO 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.
5. RETAIL SERVICE
(a) Length of Agreement. Retail Service to commence June 21,
2001 and continue through June 20, 2006.
(b) Rent Payment. Lifetime Tennis will pay the City of Cupertino
rent per month based on the following schedule:
June 21, 2001 - June 20, 2002
June 21, 2002 - June 20, 2003
June 21,2003 - June 20,2004
June 21, 2004 - June 20, 2005
June 21, 2005 - June 20, 2006
$583.33/month $7,000/year
$625.00/month $7,500/year
$666.67/month $8,OOO/year
$708.33/month $8,500/year
$750.00/month $9,OOO/year
The City of Cupertino will deduct rent from the monthly payments that are issued
to Lifetime Tennis.
(c) Scope of Service. The "Retail Service" that Lifetime Tennis
will be offering at the Cupertino Sports Center will consist of
the following:
1. Racquet restringing for tennis and racquetball racquets.
2. Grip build-up service.
3. Various accessories for tennis racquets (grips, vibration dampers, etc.)
4. Tennis racquet demo program and tennis racquet sales.
The City of Cupertino is NOT authorizing Lifetime Tennis to sell any food or
beverage items in conjunction with the "Retail Service" offered at the Cupertino
Sports Center.
Any changes to the "Scope of Service" must be authorized by the City of
Cupertino Recreation Supervisor.
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(d) Hours of Operation. -
Fall/Winter
Sept. 1 - March 30
~
April 1 - June 15
Summer
June 16 - August 31
Monday-F riday
1 Oam-1 pm, 3pm-8pm
Monday-Friday
1 Oam-1 pm, 3pm-8pm
Monday-Friday
8:00am-9:00pm
Saturday-Sunday
9am-3pm
Saturday-Sunday
9am-3pm
Saturday-Sunday
9am-3pm
Any changes to the hours of operation must be authorized by the City of
Cupertino Recreation Supervisor.
(e) Monthly Financial Statements. No later than fifteen (15) days
after the end of each month Lifetime Tennis (Dana Gill) 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) Location. The "Retail Service" will be located in the existing
"primary" office area in the lobby of the Cupertino Sports Center.
This single ofice is currently being used by Lifetime Tennis to
conduct tennis lesson administration.
6. TERM AND EARLY TERMINATION. The services to be performed
hereunder shall commence on June 21, 2001, and shall continue, unless earlier
terminated pursuant to this agreement until June 20, 2006 when this contract
shall be automatically terminated. Either party may terminate this agreement at '
an earlier time than above specified by giving two (2) years written notice to the
other party.
7. TERMINATION FOR BREACH. Notwithstanding the provisions of
section 6 above, should either party be in default in the performance of this
agreement or materially breach any of its provisions, the non-breaching party
may, at its option, immediately terminate this agreement by giving written
notification to the other party.
8. TEMPORARY SUSPENSION. The City Manager shall have the
authority to suspend this agreement, wholly or in part, for such period as he
deems necessary due to unfavorable conditions or to the failure on the part of
the TENNIS PRO to perform any provision of this agreement.
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9. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES.
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(a) Assignment. Both parties shall give their personal attention to
the faithful performance of this agreement and shall not assign, transfer, convey,
or otherwise dispose of this agreement or any right, title, or interest in or to the
same or any part thereof without the prior written consent of the other party, and
then only subject to such terms and conditions as the other party may require. A
consent to one assignment shall not be deemed to be a consent to any
subsequent assignment. Any assignment without such approval shall be void
and, at the option of the other party, shall terminate this agreement and any
license or privilege granted herein. This agreement and any interest herein shall
not be assignable by operation of law without the prior written consent of the
other party.
(b) Subcontractors; Employees. TENNIS PRO shall be
responsible for employing or engaging all persons necessary to perform the
services of TENNIS PRO hereunder. No subcontractor of TENNIS PRO will be
recognized by CITY as such; rather, all subcontractors are deemed to be
employees of TENNIS PRO, and it agrees to be responsible for their
performance. TENNIS PRO shall give its personal attention to the fulfillment of
the provisions of this agreement by all of its employees and subcontractors, if
any, and shall keep the work under its control. If any employee or subcontractor
of TENNIS PRO fails or refuses to carry out the provisions of this agreement or
appears to be incompetent or to act in a disorderly or improper manner, he shall
be discharged immediately from the work under this agreement on demand of .'
the CITY.
10. NOTICES. All notices hereunder shall be given In writing and
mailed, postage prepaid, by certified mail, addressed as follows:
TO CITY: Office of the City Clerk
10300 Torre Avenue
Cupertino, CA 95014
TO TENNIS PRO: LIFETIME TENNIS, INC.
DANA K. GILL
3091 Atherton Drive
Santa Clara, CA 95051.
11. INTEREST OF TENNIS PRO. TENNIS PRO covenants 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 performa.nce 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,
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TENNIS PRO shall at all times be deemed an independent contractor and not an
agent or employee of CITY.
12. INDEMNITY. TENNIS PRO hereby agrees to indemnify and save
harmless CITY, its officers, agents, and employees of and from:
(a) Any and all claims and demands which may be made against
CITY, its officers, agents, or employees by reason of any injury to or death of any
person or damage suffered or sustained by any person or corporation caused
by, or alleged to have been caused by, any act or omission, negligent or
otherwise, of TENNIS PRO or any subcontractor under this agreement or of
TENNIS PRO's or any subcontractor's employees or agents;
(b) Any and all damage to or destruction of the property of CITY,
its officers, agents, or employees occupied or used by or in the care, custody, or
control of TENNIS PRO, or in proximity to the site of TENNIS PRO's work,
caused by any act or omission, negligent or otherwise, of CONTRACTOR or any
subcontractor under this agreement or of TENNIS PRO's or any subcontractor's
employees or agents.
(c) Any and all claims and demands which may be made against
CITY, its officers, agents, or employees by reason of any injury to or death of or
damage suffered or sustained by any employee or agent of TENNIS PRO or any
subcontractor under this agreement, however caused, excepting, however, any
such claims and demands which are the result of the sole negligence or willful
misconduct of CITY, its officers, agents, or employees;
(d) Any and all claims and demands which may be made against
CITY, its officers, agents, or employees by reason of any infringement or alleged
infringement of any patent rights or claims caused or alleged to have been
caused by the sue of any apparatus, appliance, or materials furnished by
TENNIS PRO or any subcontractor under this agreement; and
(e) Any and all penalties imposed or damages sought on account
of the violation of any law or regulation or of any term or condition of any permit.
TENNIS PRO, at its own cost, expense, and risk, shall defend any
and all suits, actions, or other legal proceedings that may be brought or instituted
by third persons against CITY, its officers, agents, or employees on any of the
above claims or demands of such third persons, or to enforce any of the above
penalties, and pay and satisfy any judgment or decree that may be rendered
against CITY, its officers, agents, or employees in any such suit, action, or other
legal proceedings.
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13. WORKERS' COMPENSATION. TENNIS PRO certifies that it is
aware of the provisions of the Labor Code of the State of California which require
every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that code, and it
certifies that it will comply with such provisions before commencing the
performance of the work of this agreement.
14. FINGERPRINTINGrrB TEST. In the event that the TENNIS PRO
has employees who will assist in the performance of this Agreement, TENNIS
PRO shall, for those instructing persons 18 years and younger, provide
fingerprint clearance and current T.B. test.
15. INSURANCE. TENNIS PRO, at its sole cost and expense, shall
obtain and maintain in full force and effect throughout the entire term of this
agreement the insurance coverage of at least a "B" rating as determined in
accordance with the insurance industry standard, insuring not only TENNIS
PRO, but also (with the exception of workers' compensation and employer's
liability insurance), CITY, its officers, agents, and employees, and each of them
with respect to activities and services performed by TENNIS PRO for or on
behalf of CITY under the provisions of this agreement.
Certificates of such insurance, preferably on the forms provided by
CITY, shall be filed with CITY concurrently with the execution of this agreement
or, with CITY's approval, within ten (10) days thereafter. Said certificates shall
be subject to the approval of the City Attorney and shall contain an endorsement
stating that said insurance is primary coverage and will not be cancelled or
altered by the insurer except after filing with the City Clerk thirty (30) days' written
notice of such cancellation or alteration, and that the City of Cupertino is named
as an additional insured. Current certificates of such insurance shall be kept on
file at all times during the term of this agreement with the City Clerk.
16. AGREEMENT BINDING. The terms, covenants, and conditions of
this agreement shall apply to, and shall bind, the heirs,. successors, executors,
administrators, assigns, and subcontractors of both parties.
17. WAIVERS. The waiver by either party of any breach or violation of
any term, covenant, or condition of this agreement or any provision, ordinance,
or law shall not be deemed to be a waiver of any other term, covenant, condition,
ordinance, or law or of any subsequent breach or violation of the same or of any
other term, covenant, condition, ordinance, or law. The subsequent acceptance
by either party of any fee or other money which may become due hereunder
shall not be deemed to be a waiver of any preceding breach or violation by the
other party of any term, covenant, or condition of this agreement or of any
applicable law or ordinance.
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, 18. COSTS AND ATTORNEYS FEES. The prevailing party in any
action brought to enforce the terms of this agreement or arising out of this
agreement may recover its reasonable costs and attorneys' fees expended in
connection with such an action from the other party.
19. NONDISCRIMINATION. No discrimination shall be made in the
employment of persons under this agreement because of the race, color,
national origin, ancestry, religion or sex of such person. If the value of this
agreement is, or may be, Five Thousand Dollars ($5,000) or more, TENNIS PRO
agrees to meet all requirements of the Cupertino Municipal Code pertaining to
nondiscrimination in employment and to complete and submit the "Compliance
Report--Nondiscrimination Provisions of City of Cupertino Contracts" on the form
furnished by CITY.
If TENNIS PRO is found in violation of the nondiscrimination
provisions of the State of California Fair Employment Practices Act or similar
provIsions of federal law or executive order in the performance of this
agreement, it shall thereby be found in material breach of this agreement.
Thereupon, CITY shall have the power to cancel or suspend this agreement, in
whole or in part, or to deduct from the amount payable to TENNIS PRO the sum
of Twenty-five Dollars ($25) for each person for each calendar day during which
said person was discriminated against, as damages for said breach of contract,
or both. Only a finding of the State of California Fair Employment Practices
Commission or the equivalent federal agency or officer shall constitute evidence
of a violation of contract under this paragraph.
If TENNIS PRO is found in violation of the nondiscrimination
prOVISions of this agreement or the applicable affirmative action guidelines
pertaining to this agreement, TENNIS PRO shall be found in material breach of
this agreement. Thereupon, CITY shall have the power to cancel or suspend
this agreement, in whole or in part, or to deduct from the amount payable to
TENNIS PRO the sum of Two Hundred Fifty Dollars ($250) for each calendar
day during which TENNIS PRO is found to have been in such noncompliance as
damages for said breach of contract, or both.
20. AGREEMENT CONTAINS ALL UNDERSTANDINGS. . This
document represents the entire and integrated agreement between CITY and
TENNIS PRO and supersedes all prior negotiations, representations, or
agreements, either written or oral. This document may be amended only by
written instrument, signed by both CITY and TENNIS PRO. All provisions of this
agreement are expressly made conditions. This agreement shall be governed by
the laws of the State of California.
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