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Res 1564 8/6/1974RESOLUTION NO. 4-p RESOLUTION APPROVING CONTRACT GRANTING JOHNNIE SIMMONS THE TENNIS CONCESSION AT HAMILTON PARK AND WEEKS PARK TENNIS CENTERS. BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: That certain contract, a copy of which is attached hereto, between the City of Wichita Falls and Johnnie Simmons, whereby the City grants to Simmons the concession rights and privileges to operate a tennis concession at Hamilton Park Tennis Center and Weeks Park Tennis Center is hereby approved, and the City Manager is authorized to execute the same for the City of Wichita Falls. PASSED AND APPROVED THIS THE 6TH DAY OF AUGUST, 1974. M A O R Ro rEM ATTEST: 41_,-)7 r l i off"Yl oe-a2-/ CITY CLERK L THE STATE OF TEXAS COUNTY OF WICHITA X THIS AGREEMENT made and entered into by and between the City of Wichita Falls, Texas, a municipal corporation, acting by and through its City Manager, hereinafter called "City", and Johnnie Simmons, hereinafter called "Lessee", WITNESSE TH : I. The City of Wichita Falls hereby grants Lessee the concession rights and privi- leges to operate a tennis concession at Hamilton Park Tennis Center and Weeks Park Tennis Center in the City of Wichita Falls, Wichita County, Texas. Said tennis con- cession shall include the right and privilege of operating a tennis supply shop and to sell and supply the public all types and manner of tennis supplies and equipment ordinarily used in the game of tennis, to include, but not limited to, tennis rackets, balls, shoes, racket frames and similar items; to provide such services that are customary and incidental to the operation of a tennis supply shop, to include by way of example but not limited to stringing tennis rackets, repairing tennis rackets, and similar services and to provide for all members of the public, without discrimination, lessons and instructions in the game of tennis. II. For services provided under this Agreement the City shall pay to the Lessee 450 monthly ($350 for the Lessee and $100 for other Adult Supervision). The entire amount shall be payable to the Lessee by the 10th day of each month during the term of this agreement. III. The City shall establish daily, annual and tourney court fees. The Lessee shall diligently collect all such fees and pay such to the City weekly. Fees collected each week shall be due and payable on or before the Tuesday of the next week. IV. This agreement shall have a term of one year, beginning October 1, 1974, and 2- Lessee shall have two successive one-year options to renew, which may be exercised by giving City notice in writing not less than thirty days before the expiration of the then current year of the contract. At the end of each year of this lease, the amount r t' jc payable to 1 may be renegotiated. If either party desires to have the amount re- l negotiated, such party shall notify the other party in writing of such desire to re- v negotiate not less than thirty days prior to the expiration of any year of the agreement. V. rThis agreement shell be subject to the following express conditions, the violation of any one of which will give City the right to cancel this agreement, to-wit: 1. SIGNS AND ADVERTISING.There shall be no orboxious advertising MI signs or advertising matter displayed on the premises. All signs and advertising of revery kind, whether posted or run by advertising media, shall be subject to the ap- proval of the Parks and Recreation Department of City. iim 2. SUPERVISION. The Parks and Recreation Department of City shall have rthe right to supervise the manner of exercising the privileges hereby granted and the conduct of Lessee and those under him. This shall include the right to approve the rprofessionals and all other personnel employed at such tennis centers. t 't ' 3. LOCATIONS.City shall provide heating and air conditioning of the buildings at the tennis centers, and shall provide all utilities, except telephone, at rno cost to Lessee. Lessee shall provide all internal arrangements in the buildings, including equipment for shop and merchandise. Lessee shall be responsible for the cleanliness and management of the premises. 4. HOURS OF OPERATION. City shall have the right to regulate the hours rduring which the tennis centers be operated. • Et 5. SALE OF COMMODITIES. Lessee shall at all reasonable times keep and offer for sale those items of merchandise incidental to and useful for the game of tennis rfor which there is a reasonable demand; and the price of which shall at all times be rregulated and supervised by the Parks and Recreation Department of City. Lessee will not sell beer or any intoxicating beverages. No sales with any element of chance shall rbe made by Lessee. No noisy canvassing of sales shall be made by Lessee. No novel- ties or school supplies will be sold by Lessee. Lessee shall be permitted to stock and 3- C sell certain limited packaged food items and confections such as candy bars, chewing gum, potato chips, and soft drinks, subject to the supervision and approval of the Parks and Recreation Department of City. No provision shall be made by City to pre- pare and serve foods in the buildings. In dispensing packaged foods, all provisions of existing city, county, and state health laws and regulations shall prevail. 6. CLEANLINESS. The concession granted herein shall be conducted in a clean, orderly and legitimate manner and in accordance with the existing ordinances and laws. No rubbish, glass, paper or waste of any kind shall be thrown upon the E! ground or in any buildings by Lessee or anyone making sales under or for him. The premises in and around the courts and concession building occupied by Lessee are to be kept clean and sanitary by the Lessee. 7. SLEEP. No one will be allowed to sleep in the premises occupied by E. Lessee without the consent of the Parks and Recreation Department of City. 8. LIABILITY.Lessee shall hold and save City whole and harmless from any and all claims for damages of whatsoever nature and kind, suffered or asserted to have been suffered by the person or property of any person whomsoever growing ii• out of or resulting from or in anyway connected with the exercise of the privileges herein granted. 9. ASSIGNMENT. Lessee shall not assign or sublet this agreement or these remises to any other person, except upon written approval of City. Any assignee orpY1PPPP sub-lessee under this provision shall be subject to all the provisions and conditions of this lease. 10. OBJECTIONAI3LE EMPLOYEES. In case any employee or sub-lessee of Lessee is found willfully violating any law or ordinance or the terms of this agree- ment, or becomes objectionable and offensive to the good order and use of said pre- mises, Lessee shall remove such person from said premises at once. In case Lessee shall fail to discharge and remove the said person from its employ, it shall be liable to a penalty of $10. 00 for each and every day that the said person remains, and City r may, in addition thereto, terminate and cancel this agreement at its option. PAYMENTS. If Lessee should default in the payment of any installment 4- of the rent or of any taxes or assessments levied on the property or of any other sum Ct provided for under this agreement, as the same becomes due and payable, or should f 34 any execution be issued against Lessee, bankruptcy proceedings be begun by or against Lessee, or an assignment be made by Lessee for the benefit of creditors, or should the premises be placed in the possession of a receiver, then and in any such case City may, at its option, terminate said lease. 12. LIEN. Lessee hereby gives City a lien upon all of its property now or at any time hereafter placed in and upon said premises to secure the prompt payment of all amounts herein stipulated to be paid, all exemption of such property or any of it being hereby waived. 13. TENNIS COURTS. Lessee shall use a maximum of two courts at each tennis center for instruction purposes. This number shall be reviewed at intervals and may be adjusted from time to time if Lessee determines that there is a demand for more tennis instruction pruposes; however, no adjustment will be made increasing the number of courts to be used by Lessee for instruction purposes if, in the deter- mination Lr. of the Parks and Recreation Department of City, to do so would create a serious conflict with the use of said tennis courts by the general public. 14. LESSEE AS AN INDEPENDENT CONTRACTOR. It is specifically understood by the parties hereto that Lessee is an independent contractor and not an employee of City, and that City is not liable to Lessee or his employees for City employee benefits such as retirement, hospitalization and vacation leave and that Lessee shall be solely responsible for the accounting, determination and payment of all income taxes for which it shall be liable as well as Social Security taxes for his remployees. 0 15. OPERATION OF TENNIS SI-IOP. In the operation of the tennis shop, it shall be the sole responsibility of Lessee to pay all expenses incidental with the con- C' duct of the business such as personal services, including custodial service, but ex- eluding the aforementioned utilities. 16. TENNIS COURT NETS. City shall furnish tennis court nets, which nets shall be of the type now in use at said tennis centers. This shall not preclude Lessee from providing special nets which it may deem necessary for its instruction program 5- on those courts allotted to it for instruction use. Such special nets are to be provided at Lessee's expense and shall be subject to the approval of the Parks and Recreation Department of City. 17. INSTRUCTION. In providing instructions, Lessee shall not discriminate among members of the public as to race, color, creed and national origin. Lessee 4'{shall not require members of the public to meet any special requirements for instruct- ion, other than conformance with reasonable regulations, and such regulations shall be subject to the approval of the Parks and Recreation Department of City. This pro- vision shall not prevent City from offering free instruction in the game of tennis through other sources of whatever nature at other locations. Lessee shall conduct or assist in conducting tennis tournaments, both local and open, as may be scheduled at said P tennis centers from time to time by the Parks and Recreation Department of City, and Lessee agrees to waive all court fees for such tournaments. 18. ACCOUNTING. l,essee shall, in the operation of the business, maintain daily records of receipts from court and tourney fees. Lessee shall report said re- ceipts on forms prescribed by the Parks and Recreation Department of City. This further understood that all accounting records maintained by Lessee shall be open for inspection at all times to the accountants of City or to such independent auditors as City may designate from year to year for purpose of auditing City books. 19. PERFORMANCE BOND. Lessee shall execute and deliver to City at ti the time of the execution of this agreement a bond in the sum of Two Thousand ($2,000) Dollars with a surety company authorized to do business in the State of Texas. 20. INSURANCE. Lessee shall provide City with a certificate of insurance attesting to the ownership of a public liability insurance policy, with City as a named insured, protecting City from any claims which might arise out of the operation of this concession, in the amount of not less than One Hundred Thousand ($100,000) Dollars per person and Three llundred ($300, 000) Dollars per occurrence. Fire and theft coverage for property belonging to Lessee shall be the sole responsibility of Lessee. 21. ADULT SUPERVISION. Lessee agrees to provide adult supervision at Hamilton Park Tennis Center during all open hours and to periodically check the Weeks Park Center daily to insure that players at Weeks either pay court fees or possess an annual permit card. 6- I VI. It is further undersiond and agreed that Lessee will vacate the premises without delay upon sixty (GO) days notice to him in writing by City in the event this agreement is for any reason cancelled; in the event Lessee fails to vacate the premises upon said notice of cancellation or at the termination of this agreement,. City shall not be 14,44 responsible for any damage that might occur to Lessee by virtue of City's forceably entering and dispossessing Lessee, and without prejudice to any remedy which might otherwise be used for possession or for arrears of payments. VII. At the termination of this agreement, Lessee shall deliver up the premises in as good condition as at the beginning of the term, natural deterioration, reasonable use and wearing thereof, and damage by accidental fire or inevitable accident,excepted. WHEREFORE, the parties hereto have caused these presents to be duly executed by their duly authorized officers on this the day of 1974. 7 CITY OF WICHITA' FALLS By: City Manager ATTEST: City Clerk r. APPROVED AS TO FORM: LESSEE City Attorney By: Johnnie Simmons i