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Item 4DCITY OF SOUTHLAKE MEMORANDUM November 29, 2024 TO: Alison Orlowski, City Manager FROM: David Miller, Director of Community Services SUBJECT: Approve Southlake Tennis Center Management Agreement with Roxy Tennis LLC for a three (3) year term, January 1, 2025- December 31, 2027 Action Requested: Approve Southlake Tennis Center Management Agreement with Roxy Tennis LLC for a three (3) year term, January 1, 2025- December 31, 2027. Background Information: The purpose of this item is to seek Council approval to renew the Southlake Tennis Center Management Agreement with Roxy Tennis LLC for a period of three years (2025-2027). This is the fourth of (4), three-year renewal options. There are no other changes to the agreement. Roxy Tennis LLC has provided management of the Southlake Tennis Center since 2002. The current agreement between the City of Southlake and Roxy Tennis, LLC was approved for renewal by City Council on September 21, 2021, for management of the Southlake Tennis Center for a term set to expire on December 31, 2024. The proposed renewal is for a three (3) year term, January 1, 2025 - December 31, 2027, and would be the final renewal option within the current agreement. In 2024, the Southlake Tennis Center was recognized by The United States Tennis Association (USTA) as a Premier Facility. There are only 50 facilities in the United States that have received this recognition, and the Southlake Tennis Center is one of two in the state of Texas. The USTA Texas Section nominated the Southlake Tennis Center based on excellence in adult & junior programing, Tournaments, Leagues, and staff training. In addition, the Southlake Tennis Center has maintained a positive relationship with the USTA. Mia Gordan currently sits on the USTA National Advisory Board for adult beginner tennis, and recently City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork Alison Ortowski — City Manager Meeting Date — December 03, 2024 Page 2 of 3 spoke at the USTA meetings at the US Open and at the Texas Section Tournament Director's Workshop. This past year, the Southlake Tennis Center became certified as a USTA Safe Play Facility. Working alongside the U.S. Center for SafeSport and the United States Olympic and Paralympic Committee, Roxy Tennis developed safety policies and resources to achieve this certification. All staff, including instructors and pro shop employees are required by Roxy Tennis to maintain Safe Play status with USTA. City staff also conducted an annual customer satisfaction survey with Tennis Center patrons utilizing the Net Promoter Score (NPS) system to gauge customer satisfaction. The current contract requires the Southlake Tennis Center to achieve a minimum Net Promoter Score (NPS) of 65. The survey received 413 responses from September 1st through October 31, 2024, with an overall Net Promoter Score (NPS) of 76.33. A Net Promoter Score (NPS) of 70 or higher is considered world -class and indicates that the Southlake Tennis Center has a large group of promoters who are satisfied with Tennis Center services and likely to recommend them to others. Based on the performance of Roxy Tennis, LLC throughout the existing agreement, staff recommends a renewal of the agreement for the management of the Southlake Tennis Center. Financial Considerations: The Contractor is responsible for all staffing, equipment, supplies, telephone, food & beverage, and retail inventory costs. The Contractor pays the city 20% of gross revenue for leagues and 25% of gross revenue for tournament play (approximately $18.000 - $21,000 annually). In no event will the annual payment to the City be less than $15,000. Strategic Link: This item is linked to the City's Strategy Map related to the focus area of Performance Management and Service Delivery and meets the Corporate Objectives to Collaborate with Select Partners to Implement Service Solutions. Citizen Input/ Board Review: Parks & Recreation Board recommended Approval (7-0) November 11, 2024 City Council consideration December 03, 2024 Legal Review: City Attorney has reviewed the agreement. City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork Alison Ortowski — City Manager Meeting Date — December 03, 2024 Page 3 of 3 Alternatives: Approve management agreement as written Approve management agreement with modifications Deny management agreement Supporting Documents: Second Amendment to the STC Management Agreement First Amendment to the STC Management Agreement STC Management Agreement Staff Recommendation: Approve Southlake Tennis Center Management Agreement with Roxy Tennis LLC for a three (3) year term, January 1, 2025- December 31, 2027. City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork Second Amendment to the STC Management Agreement Second Amendment to Southlake Tennis Center Management Agreement This Second Amendment to Southlake Tennis Court Management Agreement (the "Second Amendment") is made and entered by and between the City of Southlake, Texas, a home rule municipal corporation located in the State of Texas (the "City") and Roxy Tennis, LLC ("Contractor"). For convenience, Contractor and City may be referred to hereinafter collectively as "Parties" or individually as a "Party." RECITALS - WHEREAS, the City and Contractor entered into the Southlake Tennis Center Management Agreement ("Agreement") on or about August 21, 2018 for Contractor to manage the Tennis Center in the City; and WHEREAS, the Agreement expired on December 31, 2021 and the City and Contractor extended the Agreement by executing a First Amendment to the Agreement ("First Amendment") beyond the expiration date; and WHEREAS, the First Amendment expires on December 31, 2024 and the City and Contractor wish to extend the Agreement beyond the expiration date with this Second Amendment. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and the recitals above and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Term. Section 3.1 of the Agreement, as amended by the First Amendment, is hereby amended by this Second Amendment to read as follows: "§ 3.1 Term. The term of this Second Amendment commences on January 1, 2025 and expires on December 31, 2027. Nothing in this Article shall be construed as a limitation on either Parry's right to terminate the Agreement in accordance with Section 10.7 hereof. In the event of nonrenewal by the City, both Parties shall cooperate in good faith a minimum of sixty (60) days in advance of the expiration date, to_ ensure a smooth transition prior to the end of the expiration date." 2. Effect of Second Amendment. All other terms and conditions of the Agreement, and the First Amendment, not amended by this Second Amendment are unaffected and continue in full force and effect. N:\Boards\City Council\2024\12-03\Southlake Tennis Center Agreement Renewal\DRAMSecond Amendment.docx Page 1 EXECUTED this day of January, 2025. City of Southlake, Texas Shawn McCaskill, Mayor Attest: Amy Shelley, City Secretary Roxy Tennis, LLC day of , 2024 to be effective the 1st N:\Boards\City Council\2024\12-03\Southlake Tennis Center Agreement Renewal\DRAMSecond Amendment.docx Page 2 First Amendment to the STC Management Agreement DocuSign Envelope ID: OD97D957-8B78-49FA-AA5A-27039D714C3C ORIGINAL DOCUMENT CITY OF SOUTHLAKE Council Action;�pN Ord./Res, No. First Amendment to Southlake Tennis Center Management SAWnt YP yr This First Amendment to Southlake Tennis Court Management Agreement is made and entered by and between the City of Southlake, Texas, a home rule municipal corporation located in the state of Texas (the "City") and Roxy Tennis, LLC ("Contractor"). For convenience, Contractor and City may be referred to hereinafter collectively as "parties" or individually as Pam'• 99 RECITALS: WHEREAS, the City and Contractor entered into the Southlake Tennis Center Management Agreement ("Contract") on or about August 21, 2018 for Contractor to manage the Tennis Center in the City; and WHEREAS, the Contract expires on December 31, 2021 and the City and Contractor wish to extend the Contract beyond the expiration date; and WHEREAS, the City and Contractor also wish to amend the original Contract concerning the rules and policies for the operation of the Southlake Tennis Center. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Term. Section 3.1 of the Contract is hereby amended to read as follows: §3.1 Term. The term of this Agreement commences on January 1, 2022 and expires on December 31, 2024 with one (1), 3-year renewal option, unless terminated earlier under on of the provisions of Article 10 of the Agreement. Nothing in this Article shall be construed as a limitation on either party's right to terminate this Agreement in accordance with Section 10.7 hereof. Both parties shall issue its decision, in writing, to renew the Agreement, or allow the Agreement to expire a minimum of six (6) months in advance of the expiration date, to ensure a smooth transition if a change is to occur following the end of the then current term. 2. Responsibilities of Contractor: The first paragraph of Section 4.2 of the Contract is hereby amended to read as follows: §4.2 Rules and Policies. CONTRACTOR agrees to conduct business at the Tennis Center in accordance with CITY policy, including the Standard Operating Procedure (SOP) for the Southlake Tennis Center, attached as Exhibit A. Additionally, CONTRACTOR shall provide written notice to the CITY MANAGER when CONTRACTOR makes any substantial changes to its operating procedures or policies affecting the public's use of the Tennis Center, including changes to hours of operation. CONTRACTOR agrees not to utilize the Property without the CITY's prior written approval for any purpose other than for N:\Boards\Parks and Recreation Board\2021\09-13\Final\ltem 4A- STC AgreementUtem 4A- attach 1- First Amendment to Southlake Tennis Center Management.docx Page 1 DocuSign Envelope ID: OD97D957-8B78-49FA-AA5A-27039D714C3C conducting tennis programs, provided, however, that the CITY's approval shall not unreasonably be withheld. 3. Effect of First Amendment. All other terms and conditions of the Contract not amended by this Amendment are unaffected and continue in full force and effect. EXECUTED this p� day of 6CV-k4[� , 2021 to be effective the lst day of January, 2021. 1 City of Southlake, Texas 6' a/ Jo ffman, Mayor H LAI�F Attest: ��` �'� • •.�� '. (J. • f v— Amy gh'tiley, C ec'>:etary 1111111110 Roxy Tennis, LLC [Docuftn*d by: ka P66V*aAA, i a 008noRF®RD"E" . Member N:\Boards\Parks and Recreation Board\202 I \09-13\Final\Item 4A- STC Agreement\Item 4A- attach 1- First Amendment to Southlake Tennis Center Management.docx Page 2 STC Management Agreement CITY OF ORIGINAL DOCUMEW 13 SOUTH LAKE CITY OF SOUTHLAIE Council Action: Y� Ord✓Rcs. No. SOUTHLAKE TENNIS CENTER MANAGEMENT AGREIDII Mproved This SOUTHLAKE TENNIS CENTER MANAGEMENT AGREEMENT ("AGREEMENT") is made between the City of Southlake, Texas ("CITY"), a municipal corporation, and Roxy Tennis, LLC. ("CONTRACTOR"), an independent contractor. WHEREAS, CITY desires that CONTRACTOR manage the operation of the CITY'S SOUTHLAKE TENNIS CENTER ("Tennis Center") as specifically described below; NOW, THEREFORE, CITY AND CONTRACTOR AGREE as follows: ARTICLE 1. DEFINITIONS Unless the context clearly indicates otherwise, in this Agreement.. BEGINNING DATE means the date on which CITY gives CONTRACTOR written notice to begin management of the Tennis Center. EXPIRATION DATE means December 31, 2021, or if the Agreement is automatically renewed, the renewal expiration date as provided in Section 3.1. FISCAL YEAR means the period beginning October 1 of any year and ending September 30 of the following year. SOUTHI AKE TENNIS CENTER means the property and all improvements located on the Property the City may make available to the CONTRACTOR as provided herein. PROPERTY means the land on which the Tennis Center is located at 450 West Southlake Blvd., Southlake, Texas. CITY ADMINISTRATOR means Director of Community Services or his designee. COMPARABLE TENNIS CENTERS IN THE REGION means comparable municipal tennis centers in the North-Central Texas region including, but not limited to, the Richland Tennis Center in North Richland Hills, the Arlington Tennis Center in Arlington, the High Point Tennis Center in Plano, and Wagon Wheel Tennis Center in Coppell. ARTICLE 2. GENERAL REQUIREMENTS §2.1 Management of the Tennis Center. CITY hires CONTRACTOR to manage, supervise, and operate the Tennis Center in accordance with this Agreement. CONTRACTOR has the responsibility and authority to implement operating policies that adhere to CITY policies where applicable and shall take all actions necessary to manage and operate the Tennis Center in a manner that meets CITY standards. §2.2 Independent Contractor. CONTRACTOR is an independent contractor with respect to the CITY, and the CITY shall not have the authority or responsibility to supervise the day-to-day activities of the CONTRACTOR or CONTRACTOR's employees. Nothing in this Agreement and its performance shall create an employment or agency relationship between CITY and CONTRACTOR. Nevertheless, CONTRACTOR agrees to seek advice from CITY and cooperate with CITY in its management of the Tennis Center. and the parties both agree to cooperate with each other regarding the management of the Tennis Center. §2.3 Use of the Property. CITY grants to CONTRACTOR the use and possession of the Property during the term of this Agreement for the purposes of managing and operating the Tennis Center, subject to the rights of CITY under this Agreement. §2.4 CITY'S Right to Inspection. CITY and its representatives have the right at all reasonable times to enter upon and to examine and inspect the Tennis Center for any reason. In the event of a default. CITY has the right of access to the Tennis Center that is reasonably necessary to cause the proper maintenance of the Tennis Center ARTICLE 3. TERM §3.1 Term. The term of this Agreement commences on January 1, 2019 and expires on December 31, 2021, with one (1), 3-year renewal option, unless terminated earlier under one of the provisions of Article 10 of the Agreement. Nothing in this Article shall be construed as a limitation on either party's right to terminate this Agreement in accordance with Section 10.7 hereof. Both Parties shall issue its decision, in writing, to renew the Agreement, or allow the Agreement to expire a minimum of six (6) months in advance of the expiration date, to ensure a smooth transition if a change is to occur following the end of the then current term. ARTICLE 4. RESPONSIBILITIES OF CONTRACTOR §4.1 Operation of the Tennis Center. In the management, supervision, and operation of the Tennis Center.. CONTRACTOR shall: a) operate the Tennis Center as a municipal Tennis Center, open to the general public without discrimination on any basis prohibited by applicable law, regulation or ordinance, subject to fees, rules, and policies approved by the CITY, and within this Agreement; b) operate the Tennis Center in a professional, efficient and cost effective manner and provide top quality programs, services, and retail sales at a standard comparable to comparable Tennis Centers in the Region; c) operate the Tennis Center in accordance with the CITY's City of Southlake Values outlined in Article 18; d) adhere to best practice financial management principles, and maintain efficient and accurate accounting records in accordance with generally accepted accounting principles in the format defined by the CITY'S Chief Financial Officer. e) comply with all applicable federal, state and local laws, ordinances, rules, policies, and regulations, f) operate and maintain a clean, well -organized, efficient, customer friendly, and professional tennis pro shop, offering merchandise and customer service comparable to pro shops at comparable Tennis Centers in the Region, and maintain an annual minimum wholesale inventory of $15,000 of merchandise in stock in the pro shop. g) maintain a minimum of 79 open hours weekly as weather permits and operate the Tennis Center during designated days and hours of operation to be determined by CONTRACTOR with approval by the CITY ADMINISTRATOR. h) establish, develop and implement ongoing, year-round, successful programs and events for all ages, including, but not limited to, instruction, clinics, drills, camps, leagues and tournaments at a standard similar tc that maintained by comparable Tennis Centers in the Region; i) ensure exceptional customer service in the delivery of all aspects of tennis services provided and ensure 100% of both employee and contract staff who are employed at the time of the annual training participate in annual customer service training approved by the CITY; 31 j) maintain the Tennis Center in a condition that is comparable with comparable Tennis Centers in the Region and deemed by the CITY as safe; k) maintain all personal property, tennis equipment and tennis program supplies owned by CONTRACTOR in good working order in a condition that is comparable with comparable Tennis Centers in the Region; 1) maintain an organizational membership with the United States Tennis Association (USTA), and either the United States Professional Tennis Association (USPTA), or the Professional Tennis Registry (PTR); m) pay all operating expenses of the Tennis Center, except for those expenses which the CITY agrees herein to pay. n) prohibit sales, possession and consumption of alcohol on the Tennis Center premises during operating hours. After hours must meet requirements as outlined in 5.1(a). o) reserve three (3) tennis courts within the Tennis Center for open play at all times, except Monday — Friday from 9:00 a.m. — 1:00 p.m. and 4:30 — 7:30pm (afternoon times are non -applicable June — August) and during the USTA sanctioned tournaments expressly permitted herein, and/or during dates/times preapproved by the CITY ADMINISTRATOR or designee on a temporary or seasonal basis; p) submit all proposed tournaments that will use 15 or more courts to the CITY ADMINISTRATOR or designee for approval a minimum of 30 days in advance of the tournament date, with no more than two tournaments to be scheduled per month that use the entire facility and no one tournament can be scheduled for longer than 14 days; q) maintain the tennis courts surface (using brooms and squeegees/water brooms provided by CITY) daily in a clean and safe condition, free of debris, and leaves, in a manner comparable Tennis Centers in the Region; r) provide and maintain tennis court amenities including scoring devices; s) notify CITY when, in the opinion of CONTRACTOR, any part of the Tennis Center maintained by CITY requires maintenance. Notification should be 41 made in writing, to the CITY ADMINISTRATOR or his/her designee. If however, the parties disagree about the condition and/or required maintenance of the CITY -maintained facilities, CONTRACTOR will notify CITY in writing of the reasons behind CONTRACTOR'S request. CITY will respond to CONTRACTOR in writing within ten (10) business days of receipt of CONTRACTOR'S written request. CITY's determination regarding the need for maintenance will be final. An annual inspection by both parties will be made to determine any on -going maintenance and long-term improvements. t) CONTRACTOR shall not operate a tennis center or tennis program that competes with the Southlake Tennis Center within 20 miles of the Southlake Tennis Center without specific written permission from the CITY. §4.2 Rules and policies. CONTRACTOR agrees to conduct business at the Tennis Center in accordance with CITY policy. Additionally, the CONTRACTOR shall provide written notice to the CITY ADMINISTRATOR when CONTRACTOR makes any substantial changes to its their operating procedures or policies affecting the public's use of the Tennis Center, including changes to hours of operation. CONTRACTOR agrees not to utilize the Property without the CITY's prior written approval for any purpose other than for conducting tennis programs, provided, however, that the CITY's approval shall not unreasonably be withheld. CONTRACTOR will be permitted to close or partially close the Tennis Center on designated CITY holidays, designated Tennis Center holidays and for inclement weather (on- going rain or snow, temperatures below 40 F, for severe heat or approaching severe weather such as tornadoes). CITY reserves the right to close and/or approve the closing of the Tennis Center at times other than as provided in this Agreement. CONTRACTOR agrees not to make any permanent physical improvements without written approval from the CITY ADMINISTRATOR. All proposed projects/improvements will be considered on a project by project basis and must be consistent with the overall intended use of the Tennis Center as per the current, adopted Parks, Recreation & Open Space/Community Facilities Master Plan. Requests for CITY ADMINISTRATOR approval must be made a minimum of ninety (90) days in advance of the proposed installation date of any proposed 51 improvement. The CITY ADMINISTRATOR is the point of contact for any desired improvements or modification, and will determine the appropriate course of action for CITY approval. Nothing herein shall render CONTRACTOR ineligible for Southlake Parks Development Corporation (SPDC) funding. CONTRACTOR is required to make application for such programming and any such application will be considered in the same manner as all other applications. CITY owned property and fixtures located at the Tennis Center as of the beginning date of this Agreement will remain at the Tennis Center for the use of the CONTRACTOR in the operation of the Tennis Center. However, said property will remain CITY property and shall be returned to the CITY upon request. §4.3 Promotion of Tennis Center activities. (a) CONTRACTOR agrees to use reasonable efforts to conduct a continuous program of marketing which will include but is not limited to maintaining a website, advertising, public relations, and promotional activities to assure that the Tennis Center has an appropriate and ongoing marketing campaign comparable with Comparable Tennis Centers in the Region. All marketing shall note that the Tennis Center is a CITY facility. (b) CONTRACTOR may be required to offer Southlake residents the opportunity to register early for all Tennis Center activities if deemed necessary by the CITY ADMINISTRATOR. (c) CITY will allow CONTRACTOR to periodically submit content for the Community Services Department monthly email to their subscribed database Content must be provided to CITY by the due date set by CITY. (d) CITY will provide links to the CONTRACTOR website and press releases as content is approved by the CITY CONTRACTOR will not determine any CITY website written or visual content, nor press release content. The CITY will work with CONTRACTOR to provide reasonable coverage. CONTRACTOR shall provide CITY content for placement on the website 6 and/or for press release 30 days prior to the proposed date for posting or release, unless otherwise approved by the CITY ADMINISTRATOR. (e) CONTRACTOR agrees to work with the CITY on any sponsorship received. All sponsorships must align with CITY sponsorship policy by addressing type, duration of display, and location specifically for all Tennis Center programs, events, tournaments, as well as the Tennis Center facility. §4.4 Tennis Center personnel. (a) CONTRACTOR shall provide employees and/or contractors for the Tennis Center, including management and other necessary staff determined by CONTRACTOR to be necessary for the operation of the Tennis Center to the CITY's standards. All personnel shall be employees of CONTRACTOR or independent sub -contractors of CONTRACTOR, and not employees or independent sub -contractors of CITY. (b) CONTRACTOR shall attract and develop employees and/or contractors capable of providing top-quality, professional instruction, and sufficient and necessary to assure effective and efficient operations of the Tennis Center at a standard comparable Tennis Centers in the Region. (c) CONTRACTOR shall ensure that its employees and contractors maintain a professional appearance and demeanor at all times. (d) CONTRACTOR shall establish requirements for employees and contractors at least as stringent as those established by the CITY'S personnel policies with respect to CONTRACTOR's employees and contractors assigned to the Tennis Center, including the responsibility to conduct pre -employment and annual criminal background checks and pre- employment and for -cause drug screenings. CONTRACTOR shall not assign to the Tennis Center, even on a temporary basis, including during the interview process, any person who has not successfully passed or who fails a criminal background check. CONTRACTOR shall make available results of such screenings to CITY. CITY will provide a copy of the CITY'S personnel policies to CONTRACTOR and arrange for CITY'S 71 Director of Human Resources to meet with and review all applicable policies with CONTRACTOR upon request of CONTRACTOR. CITY will also inform CONTRACTOR regarding CITY'S current testing and screening procedures and vendors. (e) CONTRACTOR shall keep the CITY ADMINISTRATOR informed about employee and contractor turnover. and policy changes that affect staffing of the Tennis Center. (0 CONTRACTOR shall immediately notify the CITY ADMINISTRATOR of any personnel or other issues, identified in current or post -employment, that could impact the health, safety or welfare of Tennis Center patrons, or that could prove detrimental to the public image of the Tennis Center and/or the CITY. (g) CONTRACTOR shall provide at least one full-time tennis professional with current USPTA and/or PTR membership, who is certified through at least one of these professional accreditation bodies to provide lessons and coordinate events in accordance with USPTA and/or PTR standards. (h) CONTRACTOR shall require any tennis professional, other contractors and full time staff to maintain First Aid, CPR and AED certification. A minimum of one staff member or contractor with current certifications must be on site when public are on grounds. §4.5 Operations review. (a) Periodically, but not less than quarterly, CONTRACTOR shall meet with CITY ADMINISTRATOR to review the CONTRACTOR's management, promotional activities, programs. and policy recommendations concerning the Tennis Center. Each month CONTRACTOR will generate monthly financial statements as defined by the Chief Financial Officer (CFO) and meet with CFO upon request. A seasonal attendance report, a seasonal volunteer tracking report, tracking all volunteers and volunteer hours and a program/event participation report by season as defined by the CITY ADMINISTRATOR shall also be submitted. The CITY ADMINISTRATOR 3 will provide a written list of topics to be covered and documentation requested to the CONTRACTOR at least one week prior to each meeting. (b) A written report detailing the items discussed will be prepared by the parties and provided to the CITY ADMINISTRATOR and the CONTRACTOR. §4.6 Performance Measures. (a) Customer Satisfaction: The CITY's Customer Satisfaction Surveys shall be distributed by the CONTRACTOR to all program participants and to CONTRACTOR database on an annual basis. The CONTRACTOR and the CITY agree that the CONTRACTOR shall maintain a Net Promoter Score of at least 65 for all programs and services. The Net Promoter Score is an index ranging from -100 to 100 that measures the willingness of customers to recommend a company's products or services to others. The Net Promoter Score is calculated as the difference between the percentage of promoters and detractors. The CONTRACTOR shall actively promote the survey and encourage all users to complete survey. (b) Participation Levels: The CONTRACTOR must maintain successful participation levels in overall tennis instruction for both youth and adults. Successful instructional programming participation levels should at a minimum be comparable to comparable Tennis Centers in the Region and more specifically are defined as follows: The CITY and CONTRACTOR agree that participation levels in overall tennis instruction, which includes private/group lessons, drills, and the junior program, should increase by 3% per year, beginning January 1, 2013, unless contractor can demonstrate a Tennis Center capacity constraint or some other reasonable issue that prevented this growth- (c) Complaints: The CONTRACTOR must respond to all written (complaint form or email) inquiries and complaints from users within two (2) business days and produce a monthly report to the CITY ADMINISTRATOR regarding the complaints and the CONTRACTOR's responses. The CITY 91 -' agrees to also forward any inquiries and complaints it receives to the Tennis Center in writing within two (2) business days. (d) Cleanliness of Facility: The CITY will inspect the Tennis Center on a monthly basis. The CONTRACTOR must maintain an "A" rating for only the areas within their responsibility, and in their control. §4.7 Licenses, bonds and permits. CONTRACTOR shall obtain all licenses and permits required by governmental entities for activities conducted at the Tennis Center. CONTRACTOR will provide a copy of all licenses to the CITY ADMINISTRATOR. § 4.8 Information Technology. (a) CONTRACTOR will be responsible for all technical support for software and hardware utilized in the management of the Tennis Center. (b) CONTRACTOR will be responsible for obtaining the phone service necessary for the operation of the Tennis Center. (c) CONTRACTOR will be responsible for obtaining digital signage software for the Tennis Center. §4.9 CONTRACTOR'S responsibility for furnishings and equipment. CONTRACTOR shall provide all necessary equipment and furnishings for the operation of the tennis center, including, but not limited to supplies and other equipment needed for the operation of the Tennis Center comparable to other comparable Tennis Centers in the Region. Furniture provided to CONTRACTOR from CITY shall remain the property of the CITY. ARTICLE 5. CITY RIGHTS AND RESPONSIBILITIES § 5.1 CITY responsibilities. (a) CITY waives no alcohol policy for CONTRACTOR sponsored events along with private facility rentals outside of normal operating hours. CONTRACTOR agrees to secure required insurance, security, and abide by TABC rules for the events and notify CITY ADMINISTRATOR a minimum of fourteen (14) days prior to event. (g) CITY shall notify CONTRACTOR of all construction projects in Bicentennial Park that may have a material impact on the Tennis Center operations and include CONTRACTOR in discussions related to the CITY'S master plan for Bicentennial Park. (h) CITY grants CONTRACTOR the exclusive right to conduct all tennis related activities on CITY owned tennis facilities (including but not limited to instruction and tournaments), unless otherwise waived by CONTRACTOR, and the CITY will make every effort to prevent the use of all CITY owned tennis courts by other individuals for profit -making purposes. (i) The CITY agrees to allow CONTRACTOR to use the two tennis courts near the water tower located in Bicentennial Park Monday — Friday from 9:00 a.m. — 1:00 p.m. (j) The CITY will be responsible for obtaining internet and cable services necessary for the operation of the Tennis Center. § 5.2 CITY RIGHTS (a) CITY shall prominently display signage, provided by the CITY that highlights the Tennis Center as a CITY facility; provides contact information for Tennis Center user comments, questions and concerns; and advertises the CITY's ongoing customer satisfaction feedback program. (b) CITY shall conduct unscheduled inspections to assess the current conditions of the facility, grounds and equipment; and to disseminate customer satisfaction comment cards and/or collect surveys. (c) CITY may utilize the Tennis Center for CITY meetings, events and programs. CITY will provide CONTRACTOR with thirty (30) day notice of upcoming usage and will work with CONTRACTOR to avoid scheduling conflicts. (d) CITY may conduct interim surveys as needed to regularly benchmark user satisfaction on programs, services and facilities. I? I (e) CITY shall, at all times deemed appropriate by City, have the right to utilize CONTRACTOR's customer database through electronic mail messages forwarded by CONTRACTOR. CITY will provide CONTRACTOR with the content of the electronic mail message it wishes to send to CONTRACTOR's customer database no later than five days prior to the date CITY wishes the electronic mail message to be sent. CONTRACTOR agrees to forward the electronic mail message on the date requested by CITY and provide CITY with documentation outlining the number of electronic mail messages forwarded, the content of the electronic mail message and date the electronic mail message was sent. ARTICLE 6. CONSIDERATION §6.1 Revenues due to CITY. CONTRACTOR shall pay CITY a quarterly payment for revenues collected as per Article 7, Section 7.1 below. CONTRACTOR will disperse quarterly payments on or before April 151h, July 15th, October 151" and January 15th each year. The CITY acknowledges and agrees that it will not receive any revenues from charity events hosted by CONTRACTOR or conducted at the Tennis Center §6.2 Following an annual review in accordance with Article 8, either party may request a review and re -consideration of the fees and finance reports required under Article 6 and Article 7 by sending written notice of such request for renegotiation within 30 days following completion of the annual review. Any changes to the agreement regarding the fees and financial reporting resulting from such renegotiation shall be effective only if approved by both the CONTRACTOR and the CITY'S Council and agreed in writing by the parties. In the event of such a modification to the fees and financial reporting, the remaining terms of the contract shall remain unchanged, unless agreed otherwise by the parties. Such considerations would not result in the CONTRACTOR recovering an amount less than that sufficient to cover all of the CONTRACTOR'S facility related operating expenses. Notwithstanding anything to the contrary herein, CONTRACTOR does not have to charge court fees for the use of the tennis courts at the Tennis Center by (i) guests playing with employees of CONTRACTOR, (ii) touring pros, and/or (iii) participants in charity events. 13 ARTICLE 7. FINANCES §7.1 Fees and charges. (a) CITY shall receive twenty-five (25) percent of gross tournament revenue (excluding Future Stars tournaments) and twenty (20) percent of gross league revenue charged for use of the Tennis Center facility. Payment should be made to the City quarterly as per Article 6, Section 6.1 above. In no event will the annual payment to the City be less than fifteen thousand dollars ($15,000.00) ("Minimum Payment"). In the event the quarterly payments to the city do not equal or exceed the Minimum Payment, the difference between the quarterly payments made to the City and the Minimum Payment will be paid with the July 15th quarterly payment each year. (b) Court and room rental fees to be charged at the Tennis Center will be determined by the CITY. CITY and CONTRACTOR agree that fees should be sufficient to pay operating expenses, but also be competitive with fees at comparable Tennis Centers in the Region. (c) All patrons of the Tennis Center shall be charged according to a published schedule of court fees and charges. Neither CONTRACTOR nor CONTRACTOR's employees, agents or sub -contractors shall waive any court fees without CITY ADMINISTRATOR approval. (d) Prices charged for food, beverages, and merchandise shall be determined by CONTRACTOR. CONTRACTOR shall receive 100% of food, beverage and merchandise sales. §7.4 Annual operating budget. (a) CONTRACTOR shall submit any proposed budget requests to the CITY ADMINISTRATOR by April 1 of each year for review of potential impact to the CITY'S operating budget and capital improvements budget after an annual inspection and review of facility. 141 ARTICLE 8. ACCOUNTING, REPORTS, AND AUDITS §8.2 Annual financial review. Within 90 days after the close of each fiscal year of the CITY, CONTRACTOR shall submit to CITY Chief Financial Officer a financial review certified by CONTRACTOR, covering the specific financial condition and performance of the Tennis Center. The financial review must span the fiscal year then ended CITY reserves the right to require a full audit, at its expense, certified by a certified public accountant, should there be reason to believe an audit is warranted. If an audit is required and the audit report does not contain an "unqualified opinion," CITY may take such steps as it determines are necessary to obtain an unqualified opinion, and will provide a one week notice of its intent to do so. §8.3 CITY'S right to inspect and audit. CITY has the right to inspect the books, records, invoices, deposits, sales slips, canceled checks, and other financial data or transactions of CONTRACTOR's operation of the Tennis Center at reasonable times during normal business hours. CITY also has the right to select an independent accounting firm to inspect or audit the books and records of the operation of the Tennis Center. §8.4 Location of records. CONTRACTOR shall store all current fiscal year Tennis Center records at the Tennis Center. §8.5 Fiduciary relationship. CONTRACTOR has a fiduciary duty to CITY in all of CONTRACTOR'S financial obligations to CITY in accordance with this Agreement, including, but not limited to, faithfully accounting, depositing, and reporting all payments hereunder. ARTICLE 9. INDEMNITY AND INSURANCE §9.1 Indemnity By CONTRACTOR. CONTRACTOR ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR AND AGREES TO FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY AND ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF A PERSON OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE OPERATION OF THE TENNIS CENTER, AND THE PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THE WORK AND SERVICES I � 1 DESCRIBED HEREUNDER OR IN ANY WAY RESULTING FROM OR ARISING OUT OF THE MANAGEMENT, SUPERVISION, AND OPERATION OF THE TENNIS CENTER UNDER THIS AGREEMENT, INCLUDING THE WORK, SERVICES, OPERATIONS AND LEGAL DUTIES OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, SUBCONTRACTORS, OR LICENSEES, IF ANY, REGARDLESS OF WHETHER SUCH INJURY, DEATH, OR DAMAGE IS CAUSED IN PART BY THE CITY'S NEGLIGENCE. NO PROVISION OF THIS AGREEMENT SHALL BE CONSTRUED AS WAIVING ANY DEFENSE OF THE PARTIES UNDER TEXAS LAW, INCLUDING THE DEFENSE OF GOVERNMENTAL IMMUNITY FROM SUIT OR LIABILITY. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. THIS INDEMNIFICATION DOES NOT, HOWEVER, COVER ANY CLAIMS ARISING OUT OF THE SOLE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF THE CITY OR ITS OFFICERS, AGENTS, SERVANTS, CONTRACTORS AND EMPLOYEES. FURTHER, THE CITY AGREES THAT CONTRACTOR SHALL HAVE NO OBLIGATION TO INDEMNIFY THE CITY OR ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES IN THE EVENT THAT CONTRACTOR NOTIFIES THE CITY ABOUT A SAFETY OR MAINTENANCE ISSUE THAT IS THE OBLIGATION OF THE CITY TO REPAIR OR MAINTAIN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. §9.2 Insurance (a) CONTRACTOR shall obtain public liability insurance of the types and in the amounts set forth below from an underwriter licensed to do business in the State of Texas. CONTRACTOR shall furnish to CITY certificates of insurance or copies of the policies, evidencing the required insurance on or before the beginning date of this Agreement. CONTRACTOR agrees to submit new certificates or policies to CITY at least 30 days before the expiration date of the previous certificates or policies. The insurance shall be the following types in amounts not less than the indicated amounts: 16i (1) Worker's Compensation and Statutory Employer's Liability or acceptable alternative. (2) Comprehensive General (Public) Bodily injury. - Liability (or its equivalent), including $500,000 each person but not limited to the following: $1,000,000 each occurrence (i) premises/operations and (ii) independent contractors Property damage: (iii) personal injury $ 250,000 per occurrence (iv) products/completed operations or $1,000,000 combined single limit for bodily injury and property damage. (3) Property insurance for physical Coverage for minimum of damage to the property of 100% of the fair market value CONTRACTOR located at the of the property. Tennis Center. (4) Automobile liability, including Bodily injury: coverage for the following $ 500,000 each person (required only if CONTRACTOR $1,000,000 each occurrence purchases automobiles or and vehicles) Property damage. (i) owned/leased automobiles $ 250,000 per occurrence $1,000,000 combined single limit for bodily injury and property damage. CONTRACTOR shall also obtain Non -Owned Auto Coverage for vehicles unowned by CONTRACTOR but used on Tennis Center business at amounts equal to at least the minimum limits required by state law. 171 _ (b) On all insurance required in Subsections (a) and (b), CONTRACTOR shall require that the insurance provider: (1) name CITY its officers and employees as an additional insured; (2) provide a waiver of subrogation in favor of CITY; and (3) provide that the issuing insurance company provide 30 days prior written notice to CITY of any material change to or cancellation of the insurance. ARTICLE 10. TERMINATION §10.1 For default. CITY may terminate this Agreement in accordance with this article for a default by CONTRACTOR. §10.2 What constitutes a default. (1) The following events constitute a default by CONTRACTOR: (a) a breach of the fiduciary obligations of CONTRACTOR under Sections 6.1, 6.2, 7.1, and 8.5 of this Agreement; (b) filing by CONTRACTOR of a voluntary petition for protection under federal bankruptcy laws, or the failure to obtain the dismissal of an involuntary petition under federal bankruptcy laws within 30 days after filing; (c) the inability of CONTRACTOR to provide an unqualified opinion in any required annual audit report as described in Article 8; (d) a failure of CONTRACTOR to perform its duties under this Agreement; or (e) The commission by CONTRACTOR or any of CONTRACTOR's employees or contractors of a felony or crime of moral turpitude if the CITY, in its sole discretion, reasonably believes that CONTRACTOR or CONTRACTOR's employee or contractor committed the act (regardless of whether convicted) and that the act suggests that the employee constitutes a threat to the users of the Tennis Center or the public at large, or that the act could, on 181 becoming public knowledge. impair the public's confidence or trust in the CITY or CONTRACTOR or the personnel at the Tennis Center or in the operation of CITY government in general. (2) The following events constitute a default by CITY: (a) A failure on the part of the City to maintain the Tennis Center in a good and operational condition. fulfill all of its obligations regarding the physical maintenance of the Tennis Center. and make timely repairs as requested by Contractor in accordance with 5.1(c) of this Agreement. (b) A failure of CITY to perform any of its duties under this Agreement. §10.3 Correction. (1.) CONTRACTOR shall have 30 days after written notice from CITY specifying the nature of a default under Section 10.2(1)(a)(c) or (d) or Section 10.2(1)(e) because of the commission of an offense by an employee of CONTRACTOR, to correct the default (including without limitation, terminating the employment of an employee who causes a default of the agreement under Section 10.2(1)(e) by committing a felony or crime of moral turpitude) provided that this provision shall not apply unless CONTRACTOR shall immediately place such employee on leave or re -assign such employee to another location. If the default is of such a nature that it cannot reasonably be corrected within 30 days, the CITY may grant CONTRACTOR additional time as may be reasonably necessary to correct the default so long as CONTRACTOR diligently pursues the correction, and takes all reasonable measures to insure the safety of the public and fulfillment of CONTRACTOR'S other obligations hereunder. (2) CITY shall have 30 days after written notice from CONTRACTOR specifying the nature of a default under Section 10.2(2) to cure the default. If the default is of such a nature that it cannot reasonably be corrected within 30 days, the CONTRACTOR may grant CITY additional time as 19, may be reasonably necessary to correct the default so long as CITY diligently pursues the correction, and takes all reasonable measures to insure the safety of the public and fulfillment of CITY'S other obligations hereunder. §10.4 Election to terminate. (1) CITY may elect to terminate this Agreement pursuant to this article by giving written notice of default to CONTRACTOR. If the default is under Section 10.2(1)(b)or is under Section 10.2(e) because of the commission of an offense by CONTRACTOR, this agreement shall terminate immediately upon delivery of written notice from CITY to CONTRACTOR of its election to terminate the agreement. If the default is under Section 10.2(d) or is under Section 10.2(e) because of the commission of an offense by an employee of CONTRACTOR, this Agreement shall terminate upon expiration of the correction period if correction has not been made pursuant to Section 10.3, and CITY delivers to CONTRACTOR written notice of its election to terminate the Agreement via certified mail. (2) CONTRACTOR may elect to terminate this Agreement pursuant to this article by giving written notice of default to CITY. This Agreement shall terminate upon expiration of the correction period if correction has not occurred pursuant to Section 10.3 and CONTRACTOR delivers written notice to City of its election to terminate the Agreement via certified mail. §10.5 Remedy for certain defaults. If CONTRACTOR defaults under Section 10.2(1)(a), CONTRACTOR shall pay all amounts due CITY at the time of its default under the terms of this Agreement. §10.6 Lien. CITY has, at all times, a valid security interest to secure payment of all fees and other sums of money becoming due under this Agreement from CONTRACTOR and to secure payment of any damages or loss that CITY may suffer by reason of CONTRACTOR'S breaching any covenant, agreement, or condition contained in this Agreement. The security 20� interest covers all goods, wares., equipment, fixtures, furniture, and other personal property of CONTRACTOR that is now on the Property or placed on the Property at some later date, and all proceeds attributable to them. This property may not be removed from the premises without CITY'S consent until all arrearages in fees and all other sums of money then due the CITY under this Agreement have been paid and discharged, and all the covenants, agreements, and conditions of this lease have been fully complied with and performed by CONTRACTOR. If CONTRACTOR is in default, CITY may, in addition to any other remedies provided in this Agreement or by law. after giving reasonable notice of the intent to take possession and giving an opportunity for a hearing on the issue, enter on the Property and take possession of any goods, wares, equipment, fixtures, furniture, and other personal property of CONTRACTOR situated on the premises, without liability for trespass or conversion, and sell the property at public or private sale, with or without having the property at the sale, after giving CONTRACTOR reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made. CITY or its assigns may buy any items to be sold at such a sale unless they are prohibited from doing so by law. Unless otherwise provided by law, and without excluding any other manner of giving CONTRACTOR reasonable notice, the reasonable notice requirement is met if notice is given at least ten (10) days before the time of sale. The proceeds from any such disposition, less any expenses connected with taking possession, holding, and selling the property (including reasonable attorney's fees and other expenses). will be applied as a credit against the indebtedness secured by the security interest granted in this section. Any surplus will be paid to CONTRACTOR or as otherwise required by law, and CONTRACTOR will pay any deficiencies immediately. When City requests, CONTRACTOR will execute and deliver to CITY a financing statement in sufficient form to protect CITYs security interest in the property and proceeds under the provisions of the Business and Commerce Code in force in Texas. §10.7 Other termination. Regardless of the other provisions of this Agreement, either party may terminate this Agreement upon a minimum of ninety (90) days written notice to the other party. The CITY Council shall approve CITY'S termination of the Agreement pursuant to this section. ARTICLE 11. ASSIGNMENT AND DELEGATION Neither party shall assign or delegate this agreement without the prior written consent of the other party. ARTICLE 12. NOTICES All notices to the parties shall be in writing and shall be sent by certified mail, return receipt requested, to the addressees and addresses specified below: All notices to CONTRACTOR shall be sent to: Roxy Tennis, LLC. c/o Mia Poorman 220 Canyon Lake Drive Southlake, Texas 76092 All notices to CITY shall be sent to: Director of Community Services City of Southlake 1400 Main Street, Suite 210 Southlake, Texas 76092 ARTICLE 13. MISCELLANEOUS §13.1 Non -Waiver. This Agreement shall not be construed against the drafting party. §13.2 No Waiver. No waiver of any breach of any term or condition of this Agreement shall be construed to waive any subsequent breach of the same or any other term or condition of this Agreement. ARTICLE 14. SEVERABILITY If any provision of this Agreement is held to be invalid or unenforceable as applied in a particular case for any reason, those circumstances shall not have the effect of rendering the provision invalid or unenforceable in any other case. The invalidity of one or more phrases, 221 sentences, clauses, or sections in this Agreement shall not affect the remaining portions of the Agreement. ARTICLE 15. GOVERNING LAW This Agreement shall be governed by and construed under the laws of the State of Texas, and venue in any proceeding relating to this Agreement shall be in Tarrant County, Texas. ARTICLE 16. ENTIRE AGREEMENT This agreement constitutes the entire agreement between the parties and neither of the parties shall be bound by any promises, representations or agreements except as expressly set forth in this Agreement. ARTICLE 17. BINDING CLAUSE This Agreement shall be binding upon the parties, their heirs, executors, administrators, devisees, legatees, trustees, successors, and assigns. ARTICLE 18. CITY OF SOUTHLAKE VALUES The City of Southlake has adopted values that are the fundamental principles that guide how members, officials, staff, and employees of the CITY conduct themselves in pursuit of the mission and vision. All business conducted with the CITY shall adhere to the CITY'S organizational values as described below: • Integrity: Being worthy of the public's trust in all things. We deal honestly and respectfully with each other and the public at all times. • Innovation: Valuing progressive thinking, creativity, flexibility and adaptability in service delivery. • Accountability: Taking personal responsibility for our actions or inaction while putting the interests of the taxpayer first. • Commitment to Excellence: Behaving responsively in our delivery of service to the public. Our work is characterized by its quality and by the diligence with which it is carried out. We proactively seek to solve problems in advance. • Teamwork: Recognizing the importance of working together to meet our citizen's needs, communicating clearly, sharing resources and information freely. 231 The values set forth in Article 18 are goals to which CITY officials, staff and employees are expected to adhere to in activities concerning this Agreement. While perceived failure to adhere to, comply with, or take action consistent with these values should be reported to an appropriate CITY official, staff member, or employee, such action or failure to act shall not be considered a breach of this Agreement. EXECUTED this; day of �c��� 2018 r CITY OF SO THLAKE, TEXAS By: V Mayor ATTEST: Carol Borges, TRMC, City Secretary "_� -"'•� CONTRACTOR $� ROXY TENNIS, LLC t� g . ort%ri-®dTwrtA-� -� y Mi Poorman, Member APPROVED AS TO FORM AND LEGALITY: City Attorney 24 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2021-799467 Roxy Tennis, LLC Southlake, TX United States Date Filed: 09/0812021 2 Name of governmental entity or state agency that Is a party to the contract for which the form is being filed. City of Southlake Date Acknowledged: g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 09212021 Renewal of Agreement for Southlake Tennis Center Management 4 Name of Interested Patty City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary Poorman, Stephen Southlake, TX United States X Gordon-Poorman, Mia Southlake, TX United States X 5 Check only if there is NO Interested Party. 6 UNSWORN DECLARATION My name is M. M. an and my date of birth is My address is 220 CanpDn +!.6 ao-TY' Soufbt 1-X , -40012 USA . (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in TQrran+ County, State of Texas , on the Q day of S f�p+ 20 2.1 (month) (year) Sig tune of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us version vi.,t. u tnt3coc