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Res 031-2019 Contract with Lifetime Tennis Incorporated 3/5/2019 Resolution No.31-2019 Resolution authorizing the City Manager to execute a contract with Lifetime Tennis Incorporated for management services of Hamilton Park and Weeks Park Tennis Centers WHEREAS, the City Council of Wichita Falls desires to provide tennis programming for the public; and, WHEREAS, the City staff advertised and solicited proposals from qualified , WHEREAS, after reviewing the proposals received and interviewing the candidates for the management services agreement and determining that the proposal NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: contract with The City Manager is hereby authorized to execute the attached Lifetime Tennis Incorporated for management services of Hamilton Park and Weeks Park Tennis Centers in a form to be approved by the City Attorney. th PASSED AND APPROVED this the 5 day of March, 2019. ______________________________ M A Y O R ATTEST: ____________________ City Clerk MANAGEMENT AGREEMENT FOR THE CITY OF WICHITA FALLS HAMILTON PARK AND WEEKS PARK TENNIS CENTERS This Management Agreement for the Hamilton Park and Weeks Park Tennis Centers is made and entered into by and between the City of Wichita Falls, a municipal corporation of the State of Texas, acting by and through its duly authorized City Manager, and Lifetime Tennis Inc., a Texas corporation acting by and through Matt Hanlin, its President. WHEREAS, the City owns certain dedicated parkland known as Hamilton Park, 3101 Hamilton Boulevard, Wichita Falls, Texas, 76302 and Weeks Park, 4101 Weeks Park Lane, Wichita Falls, Texas, 76302; and, WHEREAS, a portion of these parks have been set aside for the operation of municipal tennis centers known as Hamilton Park Tennis Center and Weeks Park Tennis Center; and, WHEREAS, the City desires to provide tennis services for the convenience and enjoyment of the public; and, WHEREAS, Contractor provides professional tennis management services and is prepared, equipped and qualified to undertake such operations and provide all services required hereunder at the Hamilton Park and Weeks Park Tennis Centers; and, WHEREAS, the parties wish to execute an agreement that defines the rights and responsibilities of each with respect to the management of the Hamilton Park and Weeks Park Tennis Centers. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby covenant and agree as follows. SECTION 1. USE OF THE CENTERS 1.1 City of Wichita Falls, (City) hereby grants to Lifetime Tennis, Inc. (Contractor) the exclusive right to operate and manage the Hamilton Park Tennis Center, 3101 Hamilton Boulevard, Wichita Falls, Texas, 76302 and the Weeks Park Tennis Center, 4101 Weeks Park Lane, Wichita Falls, Texas, 76302 (Centers), and Contractor hereby agrees to manage and operate the Centers in accordance with the terms and conditions of this Agreement. 1.2 tennis complex management and operation activities are carried out with regard to this agreement. The Center shall include any and all buildings, improvements (including but not limited to all outdoor tennis courts) and landscaping on the property designated as the Center, as generally depicted on the Exhibit A site map in , which is attached hereto and incorporated herein for all purposes. 1.3 Centers shall be used only and exclusively for tennis operations and for such other related purposes for which express approval is granted by the Recreation Services SECTION 2 TERM 2.1 This Agreement shall be binding on the final date of execution by the parties and effective for a primary term of five years, beginning on April 1, 2019, and ending on March 31, 2024 (Primary Term), unless terminated earlier as provided herein. 2.2 Unless previously terminated, the City and Contractor, by mutual written consent, may elect to extend this Agreement for two successive three-year periods (each a Renewal Term. City reserves the right to negotiate any term of this Agreement prior to exercising any renewal. 2.3 Nothing contained in this agreement shall prevent the City from competitively bidding the right to operate and manage the Centers after the Primary Term. 2.4 refer to a period beginning April 1, 2019, and ending on March 31, 2024, and each subsequent year. SECTION 3 CHARACTER AND MINIMUM EXTENT OF SERVICES 3.1 General Operating Requirements (a) Contractor shall operate the Centers as public municipal tennis facilities open to members of the general public for daily play and available during at least the minimum hours required under subsection (e) below. (b) Contractor shall provide adequate staff to efficiently service customers at the Centers during hours of operation. (c) At of the following nine (9) City- Sunday, Independence Day, Memorial Day, Labor Day, Thanksgiving Day, the Friday after Thanksgiving Day and Christmas Day. (d) Contractor may close or partially close the Centers for inclement weather (snow, ice, extreme cold or too wet for play) or other similar causes. Contractor shall notify the City, in writing, of any court or Center closures due to weather or any unforeseen circumstances.In addition, Contractor shall use tools for notifying the public of wet courts, closed facility, cancelled programs, such as Facebook, Contractor weather hotline, Twitter, and automatic text service if the patron is registered. (e) Except as otherwise provided in this paragraph, Contractor shall open the Hamilton Park Tennis Center to the public for play seven days per week for a minimum of ninety- four hours per week. Contractor shall operate the Hamilton Park Tennis Center from 8:00 a.m. to 10:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 p.m. on Saturday and Sunday. The Contractor shall operate the Weeks Park Tennis Center as needed for overflow play such as leagues, tournaments, or prime playing hours where Hamilton Park Tennis Center is insufficient to cover public demand. Subject to the ninety-four-hour minimum, Contractor may change the hours at its discretion to maximize the use of the Centers. The City may in its sole discretion, provide written authorization for the Contractor to open the Centers to the public for less than ninety-four hours per week. (f) Permit holders may reserve tennis courts up to eight days in advance of use. Members of the public may reserve courts up to three days in advance of use. Unless a tournament has been scheduled in advance of court reservations, Contractor, its agents, representatives, servants, and employees may reserve outdoor tennis courts for programs and lessons up to three months in advance of use or within a timeframe otherwise set forth by the Contractor. Contractor has the option to make available priority reservation passes at a nominal fee for patrons. (g) Contractor shall, at its own cost, create and maintain a website for the Centers dedicated to promoting the Centers and any services and activities provided therein and advertise through social media including Facebook and Twitter pages. Contractor will ill provide shall, at its own cost, develop a Wichita Falls Tennis Center software application that provides the public with opportunities to locate players of their skill set for match play. Upon termination of this contract, Contractor shall transfer the Centers Website, application, and all social media accounts related to the Centers to City. Contractor shall hereafter take such other actions and execute such other agreements and instruments as are reasonably deemed necessary by City to document Contractor's transfer and assignment of the Center Website to City. City shall, at all times, have input and control over posts to the Website, application and any and all social media websites. (h) Contractor shall provide an Executive Director and President of the Company who will be involved in community outreach, marketing efforts, be a liaison between the City and the Tennis Centers, and manage the quality control of the program offered by Contractor. The Executive Director will provide approximately twenty-five hours per week managing and growing the overall business of the Wichita Falls Tennis Center Program. (i) Contractor shall hire and provide a Tennis Director to the Centers who shall be on site full-time and shall organize the coaching staff, programming, special events, patrons and the Pro Shop. The Tennis Director will ensure excellence in customer service and provide proof of initial customer service training of Pro Shop Staff. It is expected that customer service and meeting the needs and challenges of the tennis community will be a prime focus of the Tennis Director. This person may also provide tennis instruction, customer service, marketing, directing the day-to-day services, and programming. It is anticipated that the Tennis Director will spend approximately forty-five hours per week on-site. (j) Contractor shall hire a USTPA Certified Tournament Director who has the primary responsibility for bidding on tournaments, organizing tournaments, preparing tournament schedules, and overseeing tournaments that are held at the Centers as outlined in Section 3.4. (k) Contractor shall hire Tennis Instructors as necessary to ensure that individual instruction and group lessons are provided as outlined below. (l) Contractor shall also provide General Staffing as necessary to ensure that the front desk is covered during the hours the Centers are open for business. (m) Contractor shall, in writing inform the City of the full name and specific assignment of each of its key personnel used in the performance of this Agreement. Contractor shall thereafter notify the City, in writing within forty-eight hours following any such key personnel changes. 3.2 Instructor; Lessons (a) Contractor shall provide at least one Tennis Professional to offer individual instructions and group lessons at the Centers. Such Tennis Professional shall be on duty operation. Each such Tennis Professional must have a current membership in the United States Tennis Association and certification through the United States Professional Tennis Association. Teaching and coaching model used should follow USTA guidelines. An employee or officer of the Contractor, or combination thereof, may serve as the Tennis Professional, provided that all other requirements under this paragraph are met. (b) Contractor shall provide at least one session of fee-based group tennis lessons during the spring, summer and fall seasons for each of the following player categories: Beginner Player Youth, Advanced Player Youth, Beginner Player Adult and Advanced Player Adult. (c) To the extent requested by the City, in writing, Contractor shall provide at least one fee-based tennis clinic for the public each spring, summer, and fall. At least one free tennis clinic during the summer for the City Recreation Division summer programs. In addition, upon request by the City, the Contractor shall make available equipment for use by the program (used tennis balls and secondary tennis racquets). 3.3League Play (a) Contractor shall advertise and make good faith efforts to recruit players for six adult unsuccessful in recruiting players for a particular type or level of league play, Contractor may, after conferring with the City, choose not to offer that type or level of league play at that time. Contractor will work with the Wichita Falls Tennis Association to determine their league needs. The duration of each league will be contingent upon the number of participants. 3.4 Tournaments (a) Contractor shall be responsible for providing a certified USTA Tournament Director to run at a minimum, four USTA Junior Tournaments per year. (b) In addition to the USTA Junior Tournaments, Contractor shall provide at a minimum, three junior tournaments and one adult tournament per year for all levels and player categories. (c) Contractor shall advertise all information pertaining to tournaments through its website, local media outlets, social media, direct e-mails, and other means to generate interest in events. (d) Contractor shall make the courts available for WFISD District and Regional Tournaments each year free of charge. Additionally, Contractor shall make the courts available for Midwestern State University for two tournaments each year at mutually agreeable rates and charges. 3.5Pro Shop Services (a) Contractor shall operate and manage a Pro Shop that includes a comprehensive point-of-sale system and delivers a full assortment of pro shop services in various spaces. At a minimum, the pro shop will offer the latest clothing products for all ages, demographics, and budgets. Displays will offer a fresh and inviting look. The pro shop shall offer tennis accessories, racquets, and a 24-hour turnaround stringing service by an experienced racquet technician. Pro shop merchandise will include major brands such as Wilson, Head, Babolat, Dunlop, Tecnifibre, Asics, and more for racquets, shoes, strings, grips, etc. (b) Contractor will provide an assortment of snacks and a wide variety of drinks for patrons to enjoy while viewing a large screen TV with the Tennis Channel. The facilities will provide coffee and have glass door refrigerators stocked with dozens of easily viewable refreshment options. (c) It is agreed to by both parties that the Hamilton Tennis Center will be fully stocked and the Week Parks Tennis Center will be partially stocked due to their lesser hours of operation. (d) Contractor shall have the exclusive right to all sales from products offered in the pro shop such as merchandise, stringing services, food and drink concessions. (e) All such products sold must be quality, wholesome and conform to applicable federal, state and local food laws, ordinances and regulations. 3.6 Maintenance Services (a) The Tennis Director will oversee all pro-shop and outdoor maintenance to ensure safety and a high standard of cleanliness. Staff members will adhere to daily, weekly and monthly checklists to keep the facilities clean both inside and out on a daily basis. All of the courts will be cleaned regularly of trash, leaves, and other debris. (b) In the event of structural repairs, the Tennis Director will work directly with the City staff liaison and report any significant issues. 3.7 Community Outreach Services (a) Beginning of each contract year, Contractor shall provide City annual written plan for performing community outreach to enhance participation in the sport of tennis and drive customers and patrons to the Centers. The plan may include: Falls Tennis Association USPTA and PTR Certification Days Partnering with the Wichita Falls Parks and Recreation Partnering with the Castaway Cove Water Park Valentine Mixed Doubles Event, US Open BBQ Doubles Social, and Home School Programming Mother and Infant Programming Down Syndrome Programming Pickleball 3.8 Additional Services (a) Contractor may at its discretion provide additional lessons, clinics, leagues, tournaments and services consistent with the provisions of this Agreement. (b) Contractor is authorized to enforce any applicable ordinances, rules, and regulations for tennis operations that are not superseded by the terms of this Agreement. (c) Contractor shall advertise and promote the Centers to foster business environment, stimulate patronage, and support City effort to maximize use of Centers including leagues, clinics, lessons, tournaments and other programming at the Centers. Contractor shall link his websites with the City of Wichita Falls website. SECTION 4 START UP COSTS, CAPITAL IMPROVEMENTS, STIPEND AND PLAYER FEES 4.1. Start-Up Costs (a) Contractor shall be responsible for providing and maintaining all start-up equipment, supplies, upgrades and Pro Shop inventory necessary to carry out the terms of this Agreement. (b) Contractor will invest in start-up capital as provided below to ensure a smooth transition and impressive opening day for the community. General Office Paper, pens, binders, files, fliers, etc. $2,000 Computer Computers, copiers, printers, software, ink, $4,500 Equipment/Software etc. Special Materials & Retail display, Pro shop remodel, relaunch $20,000 Supplies event, etc. Advertising/Printing Flyers, brochures $3,000 Maintenance Court wand/hose, squeegees $3,000 Office Equipment Desks, cabinets, security camera purchase & $3,000 installation Communications - Phones, high speed internet, T.V. $4,800 Telephone Contract Services Accounting, Legal $2,000 Business License City license, Chamber of Commerce, etc. $400 Tennis equipment Balls, aids, ball machines, pop-up nets, string $15,000 machine. Start-Up Costs Total $57,700 (c) Contractor shall also provide other start-up equipment typically needed for a 15 court facility such as: 8 tennis carts 50 cases of balls 2 playmate ball machines (most durable machine on the market) Coaching supplies, cones, targets, lines, teaching tools, etc. 1 industrial hose, water pressure washer, and leaf blower for court cleaning 50 junior rackets for entry level groups 1 electric racket restringing machine 1 glass door fridge for retail drinks All office supplies, desks, cabinets, chairs, paper, pens, storage racks, etc. Provide all I.T. equipment required for P.O.S. and online reservation system use. Computers, registers, fax, copier, scanners, extra phones and lines, receipt printer, internet equipment for private and public options, security cameras, etc. 4.2. Capital Improvements (a) Contractor agrees to make payment to the City annually in the amounts outlined below to be used for capital improvements at either Hamilton or Weeks Park Tennis Center. Year 1 = $5,000 Year 2 = $5,000 Year 3 = $6,000 Year 4 = $7,000 Year 5 = $8,000 Year 6 = $9,000 (if renewed) Year 7 = $10,000 (if renewed) Year 8 = $10,000 (if renewed) Year 9 = $10,000 (if renewed) Year 10 = $10,000 (if renewed) Year 11 = $10,000 (if renewed) (b) The Capital Improvement Fund will be used at the discretion of the City. (c) Payments to the City will be made on October 1 of each year of the contract. 4.3. Stipend Payment to Contractor (a) City will make a payment to Contractor in the amount of $60,000 annually in equal monthly installments of $5,000 (b) Each monthly payment shall be due on the first day of each month. 4.4. Player Fees (a) Contractor will collect and keep all revenues associated with all tennis related business at both tennis centers (b) Contractor agrees that player fees will not increase during the first year of this contract, although lowering fees is allowable to draw more beginner players to the facilities. (c) Court use fees and annual pass fees must be approved in writing on an annual basis by the City. Contractor has the discretion to set all other fees including, but not limited to, fees for lessons, tournaments, leagues, merchandise, food, and beverage. Contractor shall submit a schedule of fees by October 1 of each year. (d) Parties acknowledge that Centers are utilized by the WFISD for District and Regional tournaments and Contractor agrees to waive tournament fees for the WFISD. Section 5 INSURANCE AND RESPONSIBILITY 5.1 During the term of this Agreement, Contractor shall procure and maintain insurance policies of specific coverages set forth in this section (a) Workers Compensation $1,000,000.00 each accident/occurrence (b) Commercial General Liability Insurance $1,000,000.00 per occurrence $2,000,000.00 annual aggregate limit 5.2 Requirements Applicable to all Insurance (a) The City, its officers, employees, representatives, agents, and servants shall be endorsed as an additional insured on all insurance policies with the exception of workers' compensation. (b) Each insurance policy shall be endorsed to provide the City a minimum thirty days' notice of cancellation, non-renewal. or material change in policy terms or coverage, provided, however, that ten days' notice shall be acceptable for cancellation due to non- payment of premium. (c) Workers' compensation insurance policies covering employees at the Centers shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. (d) The City of Wic Insured on Commercial General Liability policy. (e) Insurance shall be submitted at the time of the signing of this contract and remain on file with the City. Section 6 LIABILITY AND INDEMNIFICATION 6.1 CONTRACTOR COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, OWNER , SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED HEREUNDER BY CONTRACTOR OR CONTRANTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES OR INVITEES, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, SERVANTS, EMPLOYEES, OR OWNER. CONTRACTOR LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS OWNER FROM AND AGAINST ANY AND ALL INJURIES, DAMAGE, LOSS OR DESTRUCTION TO PROPERTY OF OWNER DURING THE PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS OF THIS CONTRACT, WHETHER ARISING OUT OF IN WHOLE OR IN PART, ANY AND ALL ALLEGED ACTS OR OMISSIONS OF OFFICERS, SERVANTS OR EMPLOYEES OF OWNER. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO, AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. 6.2 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, CONTRACTOR, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT CONTRACTOR'S EXPENSE, BY OR THROUGH ATTORNEYS SATISFACTORY TO CITY. 6.3 Contractor agrees to notify City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages on the Centers. Contractor agrees to make its officers, agents, and employees available to City, at all reasonable times for any statements and case preparation necessary for the defense of any claims or litigation for which City may be responsible hereunder. Contractor shall place language in its contract with contractors that they shall notify City as required by Agreement in this subsection. Section 7 UTILITIES AND SERVICES 7.1 City shall be responsible for the following utility-related expenses: water, sewer, electricity, gas, and waste disposal utility. Contractor shall make reasonable efforts to minimize the use of utilities by ensuring that lights, appliances, and water are shut off during periods of non-use. 7.2 Contractor shall be responsible for all utility expenses related to communications, including, but not limited to, all telephone service, cable, or satellite television and radio services, and internet or similar communication service. Section 8 TAXES AND FEES 8.1 Contractor shall be responsible for all taxes associated with the operation and management of the Centers, including, without limitation, any income, sales, use, or other taxes. 8.2 Contractor agrees to obtain and pay for all licenses, permits, certificates, and inspections required by law or otherwise necessary to perform the services prescribed for Contractor to perform hereunder. Section 9 MAINTENANCE, ALTERATIONS, IMPROVEMENTS, AND INSPECTIONS 9.1 Contractor has or will secure at its own expense all materials, supplies, machinery, equipment, tools, superintendence, labor personnel, insurance, and other accessories and services necessary to provide for all Routine Maintenance and Repairs to the Centers. For purposes of this Agreement, "Routine Maintenance and Repairs" means maintenance or repairs that are integral to the core functioning and operation of the Centers and that occur in the normal course of operation and includes, without limitation, the following: (a) Maintaining and operating the Centers and immediately surrounding grounds in a clean, safe, wholesome. and sanitary condition, free of trash, garbage, or obstructions of any kind in accordance with the Park and Recreation Department's facility cleanliness standards, a copy of which is attached to this Agreement as Exhibit B and incorporated herein for all purposes. (b) All janitorial and custodial services for the Centers. (c) A complete and proper arrangement for adequate sanitary handling and disposal away from the Centers of all trash, dry and wet garbage and other refuse resulting from, or in any way associated with Contractor's use of the Centers. (d) Basic repairs and maintenance to the tennis courts including periodic repainting and restriping due to ordinary wear and tear. 9.2 City shall be responsible for all Major Maintenance and Repairs to the Centers. If the Contractor notifies the City, in writing, of an issue requiring Major Maintenance and Repair, then the City shall make a good faith effort to correct such issue within ten business days or, if the maintenance or repair requires longer, as determined by the Administrator in his sole discretion, then the City shall have a reasonable time to make such maintenance or repairs."Major Maintenance and Repairs" means those maintenance or repairs that are integral to the core functioning and operation of the Centers that occur either infrequently or that are scheduled on a non-routine basis, which may include, without limitation, the following: (a) Tennis court resurfacing and structural condition of the tennis courts. (b) Maintenance and repairs, such as roofing, foundation, exterior walls, tile, HVAC, electrical, and the like. (c) Maintenance and replacement of any tennis nets and windscreens to the extent that the City has sufficient funds available. 9.3 If there is a dispute as to what constitutes Routine Maintenance and Repairs or Major Maintenance and Repairs under this Agreement, then the decision of the Administrator shall control. 9.4 City shall also be responsible for maintaining the outdoor grounds of the Centers, including the lawns, landscaping, and lighting. 9.5 Ownership of all existing structures and improvements, and of all structures, buildings, or improvements constructed by City or Contractor upon the Centers and all alterations, additions, or betterments thereto shall immediately vest and be vested in City at all times during and after the term of this Agreement. City shall retain, at all times, the right to possession of such structures, buildings, and improvements. No such alteration or improvement may be removed from the property during or after the term of this Agreement (or any renewal thereof) without the express, prior written consent of the Administrator 9.6 City may, at any time and without notice, enter upon the Centers for the purposes of inspection, including but not limited to, fire code inspections by the City's Fire Marshal; determining whether Contractor is complying with this Agreement; maintaining, repairing, or altering the Centers; or any other reasonable purpose. Contractor will cooperate fully with City during any such inspection. During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this Agreement or pursuant to its governmental duties under federal state or local laws, rules or regulations. The City will submit the results of any inspection to Contractor, identifying any areas of concern or deficiency. Contractor shall be responsible for correcting all problems cited in the City's report within two weeks of the date the report is provided to the Contractor. If a particular problem will take more than two weeks to correct, Contractor shall notify the Administrator of that fact as soon as possible and provide a reasonable date certain by which the issue will be corrected. Section 10 REPORTING RECORDS AND AUDIT 10.1 Contractor shall prepare and maintain an adequate set of records in detail and methodology satisfactory to the Administrator, documenting all revenues and expenses associated with Contractor's operation and management of the Centers. Such method shall include the keeping of the following records: (a) Regular books of accounting, such as general ledgers; (b) Cash receipts and cash disbursements journals, including any supporting and underlying documents such as invoices, vouchers, checks, tickets, bank statements, and the like; (c) State and Federal business income tax returns and sales tax returns and checks and other documents proving payment of sums shown; (d) Computerized point of sale (daily reports) and tennis reservations; (e) Any other reporting records that the Administrator deems necessary for proper reporting of receipts and disbursements; (f) Preparation of operating budgets; (g) Preparation of reports with respect to all financial aspects of the Centers, such as payroll data, cash receipts, accounts receivable, budget reports, and detailed profit Centers information; and (h) Maintenance of accounting records and preparation of annual financial statements of the Centers, in accordance with generally accepted accounting principles, consistently applied. 10.2 As requested by City, Contractor shall provide the Administrator with a written summary report of all activities and financial transactions related to the Centers during the preceding month, including, but not limited to the following information: (a) All personnel changes. (b) All revenues and expenses associated with Contractor's operation and management of the Centers as set forth in Section 10.2. (c) Tournaments held at the Centers during the prior month and a schedule of upcoming tournaments for the next three months. (d) League play participation, which includes a breakdown by level of play. (e) Individual and group tennis lessons participation, including a breakdown by level of play. (f) Hours of operation. (g) Updates on advertising and promotional campaigns. (h) Tennis court rental. (i) Any other items that the Administrator deems necessary in his/her reasonable discretion. 10.3 Contractor shall keep full, complete, proper, and customary books, records, and accounts of gross receipts, both for cash and credit payments, of each separate activity conducted at the Centers. Contractor shall, at all reasonable times, make available to the City and its authorized representatives and agents all books, records, and accounts related to the Centers, including any sales tax reports that Contractor may be required to furnish to any government or governmental agency. Contractor agrees to maintain financial records pertaining to the operation and management of the Centers during each Contract Year for a period of three (3) years from the date that the Agreement ends. 10.4 Contractor agrees that the City or its representatives shall, until the expiration of three (3) years after expiration of this Agreement, have access to and the right to examine and photocopy financial records and supporting documentation directly related to the Contractor's use of the Centers. Contractor agrees that the City shall have reasonable access during normal working hours to all necessary Contractor facilities and shall be provided reasonably adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Contractor reasonable advance notice of intended audits. Section 11 TERMINATION AND REMEDIES 11.1 Termination with Cause. Except as otherwise provided, if Contractor defaults in the performance of any promise, covenant, term, or condition required of it herein, and fails to cure such default within thirty Calendar days following written notice thereof from the Administrator, unless a longer cure period is approved in writing by the Administrator, then the City shall have the right to terminate this Agreement immediately. In addition, the City may terminate this Agreement for any reason so long as the City provides at least six months' advance written notice to Contractor. Waiver of any particular instance or breach does not constitute any continuing waiver or a waiver of any subsequent breach of this Agreement. 11.2 Termination without Cause. Either party may terminate this agreement for any 11.3 Surrender. Contractor shall peaceably and immediately give up and surrender the Centers and every part thereof to the City at the expiration or termination of this Agreement. 11.4 . Prior to the effective date of expiration or termination of this Agreement, Contractor shall promptly remove any and all property owned by Contractor, including, but not limited to, personal property. Contractor shall also repair, replace, and restore any Contractor-caused damage to the Centers, including, but not limited to, any damage that Contractor causes during removal of Contractor's property, to the full and complete satisfaction of the Administrator. If Contractor fails to remove all of its property in a timely manner or otherwise complete all of its obligations hereunder, then the Administrator may, in its reasonable discretion, authorize limited access for a period to be determined by the Administrator. Contractor's use of the Centers under limited access in accordance herewith shall not invoke any additional extended license period beyond that which already exists at the time that limited access is granted. Section 12 FORCE MAJEURE 12.1 If either party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes; lockout; or other industrial disturbances; acts of public enemies; wars; blockades; insurrections, riot; epidemics; public health crises; tornados; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state disaster or of emergency by the federal, state, county, or City government in accordance with applicable laws; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party' s reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers, parks, or other City-owned and operated properties and facilities in Contractor hereby the interest of public safety and operate them as the City sees fit. waives any claim against City for damages by reason of any such rescheduling or cancellation . Section 13 ASSIGNMENT AND NO WAIVER 13.1 Contractor shall not assign, subcontract, sublet, or transfer any of its rights or responsibilities under this Agreement without the prior written consent of the City. Any attempted assignment, subcontract, sublease, or transfer without the City' s prior written consent shall be void. Section 14 INDEPENDENT CONTRACTOR 14.1 It is expressly understood and agreed that Contractor shall operate as an independent contractor as to all rights and privileges contained in this Agreement, and not as an agent, representative, servant or employee of the City. Subject to the terms of this Agreement, Contractor shall have the exclusive control of and the exclusive right to control all details and day- to- day operations and activities relative to its performance under this Agreement and shall be solely responsible for the acts and omission of its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Contractor acknowledges that the doctrine of respondeat superior shall not apply as between the City and Contractor or between the parties' respective officers, agents, servants, employees, contractors, subcontractors, licenses, or invitees. Nothing contained in this Agreement shall be construed as the creation of a partnership or joint enterprise between the City and Contractor. In the event of a dispute, any doubt as to the construction of this Agreement shall be resolved so as to maintain Contractor' s status as an independent contractor. Section 15 SIGNS 15.1 Contractor shall not place or cause or permit to be placed any sign or advertisement at the Centers, or any property of the City without the prior written consent of the Administrator. Section 16 CONDITION OF CENTERS 16.1 Contractor hereby represents that it has inspected the Centers and improvements thereon, that it finds same suitable for all activities and operations agreed to or contemplated hereunder, and that it takes the Centers and all improvements thereon in an "as is" condition. City hereby expressly disclaims any and all warranties in regard to the Centers, including, without limitation, any warranty of title or fitness for any particular purpose. Section 17 COMPLIANCE WITH LAWS 17.1 Contractor agrees to comply with all federal, state, and local laws; all ordinances, rules and regulations of City; all rules and regulations established by the Administrator; and all rules and regulations adopted by the City Council pertaining to the conduct required at the Centers, as such laws, ordinances, rules, and regulations exist or may hereafter be amended or adopted. If City notifies Contractor or any of its officers, agents, employees, contractors, subcontractors, licensees, or invitees of any violation of any law, ordinance, rule, or regulation, Contractor shall immediately desist from and correct the violation. Section 18 APPLICABLE LAW AND VENUE 18.1 This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Wichita County, Texas or the United States District Court for the Northern District of Texas-Wichita Falls Division. Section 19 NOTICES 19.1 All notices, demands, requests, or replies provided for or permitted under this Agreement shall be in writing and may be delivered by one of the two following methods: (a) By personal delivery with receipt acknowledged in writing; or (b) By deposit with United States Postal Service as certified or registered mail, return receipt requested, postage prepaid to addresses stated below. 19.2 For purposes of notice, demand, request, or reply, the addresses of the parties shall be: IF TO CITY: City of Wichita Falls Attn: Scott McGee, Recreation Services Administrator 600 11th Street Wichita Falls, TX 76301 IF TO CONTRACTOR: Lifetime Tennis, Inc. Attn: Matt Hanlin, President 3253 Alma Road McKinney, Texas 75070 Section 20 SECTION HEADINGS AND SEVERABILITY 20.1 The section headings contained in this Agreement are for convenience in reference only and are not intended to define or limit the scope of any provision of this Agreement. 20.2 If any of the provisions contained in this Agreement shall be held, for any reason, to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability, shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Section 21 GOVERNMENTAL FUNCTION 21.1 All parties agree that this contract is one wherein the City of Wichita Falls is solely performing a governmental function. All parties expressly agree that the City is not engaging in any propriety functions. Section 22 CONTRACTUAL DAMAGES LIMITATIONS 22.1 All parties agree that damages in this contract are limited only to those authorized under Texas Local Government Code Section 271.153. Specifically, the City is not liable for consequential damages or exemplary damages. Section 23 23.1 If any action at law or in equity is necessary to enforce this agreement, each party from the other party. Contractor understands that Texas Local Government Code subchapter I, § 271.153(a)(3) provides that the total amount of money awarded in an adjudication brought against a governmental entity for breach of a contract includes Section 24 VERIFICATION I, (authorized official) _________________________________, do hereby depose and verify the truthfulness and accuracy of the contents of the statements submitted on this certification under the provisions of Subtitle F, Title 10, Government Code Chapter 2270 and that the company named below: 1) does not boycott Israel currently; and 2) will not boycott Israel during the term of the contract; and 3) Israel List located at ttps://comptroller.texas.gov/purchasing/publications/divestment.php ______________________________________________________________________ Company Name ______________________________________________________________________ Signature of Authorized Official ______________________________________________________________________ Title of Authorized Official Date Section 25 COUNTERPARTS AND ELECTRONIC SIGNATURES 25.1 This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. Section 26 ENTIRETY OF AGREEMENT 26.1 This written instrument constitutes the entire understanding of the parties concerning City's and Contractor's roles and obligations in regard to this Agreement. Any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void to the extent in conflict with any provision of this Agreement. IN WITNESS WHEREOF, the parties hereby execute this contractor to be effective as of the date set forth in Section 2. CITY OF WICHITA FALLS LIFETIME TENNIS, INC. By: _______________ By: ________________ Darron Leiker Matt Hanlin City Manager President and Executive Director Attest By: ________________ Marie Balthrop City Clerk Approved as to form By: ________________ City Attorney