Item 4HCITY OF
SOUTHLAK
MEMORANDUM
November 30, 2010
TO: Shana Yelverton, City Manager
FROM: Chris Tribble, Director of Community Services
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SUBJECT: Approve renewal of Tennis Center Management Agreement with
Stephen and Mia Poorman, dba Roxy Tennis LLC, for one year
Action Requested: City Council authorization for the Mayor to execute a renewal of the
Tennis Center Management Agreement with Stephen and Mia
Poorman, dba Roxy Tennis, LLC, for one year to expire April 5,
2011.
Background
Information: Effective April 5, 2008, the City entered into a three -year renewal
agreement with Stephen and Mia Poorman as Roxy Tennis, LLC
for the management and operations of the Southlake Tennis
Center. Previous agreements were executed in April 2002 and
2005.
Over the past nine years, Stephen and Mia Poorman have provided
stability to the Tennis Center through their management and
operations of the facility. New programs were introduced or
expanded to include youth tennis programs, USTA Women's and
Men's Tournaments, lessons and clinics. Major tournaments are
held annually attracting players and visitors including several major
junior and adults tournaments. Community based activities are also
a part of their operations and include the S.O.S. Tournament
benefiting the Women's Shelter, "Serve for the Cure" benefiting the
Susan G. Komen Foundation, fundraising and donations for
"Forgotten Diamonds" and the "Tennis Gala."
The renewal of the agreement for one year will allow for continued
stability of the tennis center operations and also meets the
Poorman's desire for commitment from the City to support their
investment in new program development.
Financial
Considerations: The City currently receives approximately $11,000 annually in
revenue from the Tennis Center. The City is responsible for the
physical maintenance of the building and grounds, and utilities. The
Contractor is responsible for all furnishings, equipment, telephone,
and staffing costs.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 2 of 21
Renewal of this agreement is not anticipated to result in any new
financial impacts beyond what is listed above.
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 Provide Attractive and Unique Spaces
for Enjoyment of Personal Interests, Achieve the Highest Standards
of Safety and Security, Improve Performance of Delivery and
Operational Processes, Provide High Quality Customer Service,
Enhance Resident Quality of Life and Business Sustainability
Through Tourism, and Invest to Provide and Maintain High Quality
Public Assets.
Citizen Input/
Board Review: The existing Tennis Center Management Agreement with the
Poorman's was previously renewed April 25, 2008.
City Council consideration December 7, 2010 on one year renewal.
Legal Review: City Attorney has previously reviewed the agreement.
Alternatives: City Council action to approve or not to approve.
Supporting
Documents:
■ Proposed Tennis Center Management Agreement
Staff
Recommendation: City Council authorization for the Mayor to execute a renewal of the
Tennis Center Management Agreement with Stephen and Mia
Poorman, dba Roxy Tennis, LLC, for one year to expire April 5,
2012.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 3 of 21
MANAGEMENT AGREEMENT
THIS TENNIS CENTER MANAGEMENT AGREEMENT ( "Agreement ") is made
between the City of Southlake, Texas ( "CITY "), a municipal corporation, and Roxy Tennis LLC,
a Texas limited liability company, dba "Southlake Tennis Center" ( "CONTRACTOR ")
WHEREAS, CITY desires that CONTRACTOR manage the operation of the CITY'S
tennis center; 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 three (3) years after the beginning date or, if the Agreement
is automatically renewed, as provided in Section 3.1, any annual anniversary of the original
expiration date.
FISCAL YEAR means the period beginning October 1 of any year and ending
September 30 of the following year.
TENNIS CENTER means the property and all improvements located on the Property,
including, but not limited to the clubhouse, and any other tennis courts the City may make
available to the CONTRACTOR as provided herein.
OPERATING ADVANCE ACCOUNT means an interest - bearing account maintained by
CONTRACTOR for the deposit of funds received from customers for the operations of the
tennis center.
PROPERTY means the land on which the tennis center is located at 450 W. Southlake
Boulevard, Southlake, Texas.
STANDARD COMPARABLE TO SPECIFIED TENNIS CENTERS IN THE REGION
means a standard of operation comparable to the operation of moderately priced private tennis
centers and comparable municipal tennis centers in the region, including, but not limited to
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 4 of 21
municipal tennis centers in Fort Worth, Arlington, North Richland Hills, and the Bayard H.
Friedman Tennis Center at Texas Christian University.
"NON- LEAGUE OPEN PLAY" means any court usage other than private lessons or
leagues.
"LEAGUE" means any regularly scheduled, organized team competition with a season
of more than six weeks.
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. CITY delegates
to CONTRACTOR the responsibility and authority to implement operating policies and charge
court usage fees, both of which are subject to approval by CITY'S Council, and take other
actions necessary to operate the tennis center in a manner that meets a standard comparable
to specified tennis centers in the region. Other than court usage fees, all pricing associated
with lessons, leagues, drills, camps, services, food and beverages, shall be at the discretion of
the CONTRACTOR.
§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, and 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 his 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.
(a) In addition, CITY will make available to CONTRACTOR the two tennis courts
located in Bicentennial Park near the water tower (the "hill ") for CONTRACTOR's
exclusive use Monday through Friday, 8:00 a.m. to 12:00 p.m. On occasion,
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
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CITY may make these courts available to CONTRACTOR at other times for
tournaments or other special events.
§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 is one (1) year, commencing April 6, 2011
and expiring April 5, 2012, nn -the begiRRORg date, unless terminated earlier under one of the
following provisions.
TenegGt+ate the — teFrnsef the reeme t. Nothing in this Article shall be construed as a
limitation on either party's right to terminate this Agreement in accordance with Section 9.6
hereof.
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;
(b) retain employees sufficient and necessary to assure operation of the tennis center at
a standard comparable to specified tennis centers in the region;
(c) maintain restrooms, showers, and locker rooms in a clean and sanitary condition at
all times;
(d) provide food and beverage service and sales, offering a variety of food;
(e) operate a tennis pro shop, offering merchandise comparable to pro shops at
specified tennis centers in the region, and maintain an annual average minimum
wholesale inventory of $15,000 of merchandise in stock in the pro shop.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 6 of 21
(f) CONTRACTOR will ensure that the staff is trained in providing customer service,
and that staff is discrete and polite concerning complaints or concerns about the
tennis center;
(g) maintain the tennis center in a condition that is generally accepted in the tennis
industry as safe;
(h) maintain the courts and all elements of the tennis center in optimum playing
condition, in accordance with a standard comparable to specified tennis centers in
the region;
(i) maintain all personal property in good working order and replace items when
necessary to operate the tennis center at a standard comparable to specified tennis
centers in the region;
(j) comply with all applicable government health, safety and environmental regulations;
(k) operate the tennis center in an efficient and cost effective manner; and collect
membership and court reservation fees in amounts approved by the CITY;
(1) pay all operating expenses of the tennis center, except for those expenses which the
CITY agrees herein to pay for (i) repairs, and (ii) water, sewer, electricity and natural
gas expenses, which shall be paid by CITY.
(m) provide a full -time tennis professional with current membership in the USTA, who is
certified through the USPTA to provide lessons and coordinate events in accordance
with USPTA standards. The tennis professional and a sufficient number of
CONTRACTOR's staff must maintain First Aid and CPR certification.
(n) keep the Center open during certain standard days and hours of operation as
provided herein and as approved in writing by the Director of Community Services.
(o) Prohibit sales, possession and consumption of alcohol on the tennis center premises
at any time and prohibit anyone who is intoxicated to play tennis.
(p) Reserve two (2) tennis courts for open play at all times, except during USTA
sanctioned tournaments expressly permitted herein.
(q) schedule no more than nine USTA tournaments per year, a maximum of four of
which may utilize the entire tennis center complex. Not more than two tournaments
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 7 of 21
may be scheduled per month, and no tournament is to continue longer than fourteen
days.
(r) Require the tennis professional on site to retain the physical condition necessary to
perform the duties and responsibilities of the Agreement.
(s) Not cause to be placed any sign or advertisement upon the premises or upon the
property of CITY without the prior written consent of the CITY.
§4.2 Rules and policies. CONTRACTOR shall obtain CITY'S approval before
implementing or changing clubhouse and ground rules or other 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 CITY'S approval shall not unreasonably
be withheld.
CONTRACTOR will be permitted to close or partially close the tennis center for
inclement weather (on -going rain or snow, temperatures below 40 F, or approaching severe
weather such as tornadoes) with appropriate notice given to CITY in a form determined by the
Director of Community Services. The Center shall close not later than 10:00 p.m. on any day.
CITY reserves the right to approve the closing of the tennis center at times other than as
provided in this Agreement.
§4.3 Promotion of tennis activities.
(a) CONTRACTOR agrees to use reasonable efforts to conduct a continuous
program of advertising, public relations, and promotional activities to assure
that the tennis center has an appropriate and ongoing visual image and
presence in print and communications media.
(b) CONTRACTOR shall offer Southlake residents the opportunity to register
early for all tennis activities.
(c) CONTRACTOR may market and sell patron facility cards that allow for open
play reservation privileges, but shall ensure that Southlake residents who
are non -card holders are afforded the opportunity to make open play court
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 8 of 21
reservations prior to non - residents, regardless of whether such non-
residents hold patron facility cards.
§4.4 Tennis center personnel.
(a) CONTRACTOR shall recruit, interview, and hire the employees for the tennis
center, including management, tennis professionals, food and beverage staff,
child care providers, maintenance personnel, janitorial staff, and others
determined by CONTRACTOR to be necessary for the operation of a facility
comparable to specified tennis centers in the region. All personnel shall be
employees of CONTRACTOR or independent sub - contractors of
CONTRACTOR, and not employees of CITY.
(b) CONTRACTOR shall ensure that its employees have a professional
appearance at all times, and that all employees shall wear neat appearing
uniform shirts, or nametags clearly identifying them as employees of tennis
center.
(c) CONTRACTOR shall establish requirements for employees at least as
stringent as those established by the CITY'S personnel policies with respect
to CONTRACTOR's employees 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, any person
who fails such checks or screenings. CONTRACTOR will provide results of
such screenings to CITY. CITY will provide a copy of the CITY'S personnel
policies to CONTRACTOR and arrange for CITY'S Director of Human
Resources to review all applicable policies. CITY will also inform
CONTRACTOR regarding CITY'S current testing and screening procedures
and vendors.
§4.5 Operations review.
(a) Periodically, but not less than once a month, CONTRACTOR shall meet with
CITY staff and review its management, promotional activities, programs,
finances, and policy recommendations concerning the tennis center.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
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(b) CONTRACTOR shall keep CITY fully informed of all tennis center
management activities and operations and shall provide the weekly, monthly
and annual reports.
§4.6 Licenses, bonds and permits. CONTRACTOR shall obtain all licenses and
permits required by governmental entities for activities conducted at the tennis center.
ARTICLE 5. CONSIDERATION
§5.1 Amounts due to city. On or before the tenth day of each month, beginning with
the first month following the beginning date of the Agreement, CONTRACTOR shall pay CITY
the fees as stipulated below. A $25 fee will be charged for any checks returned from
CONTRACTOR'S bank for insufficient funds. A five percent (5% ) late fee will be charged if
payments are not made to CITY within five (5) days of the due date.
(a) During Year 1 of contract: 10 % of gross receipts for the prior month, less
sales tax, from all court usage fees. CONTRACTOR shall be allowed to defer
actual payment of CITY's earned receipts for first three (3) months, however,
these accrued payments shall become due and payable on a pro -rated basis
during the remaining nine (9) months of the contract year.
(b) During Year 2 of contract: 10% of gross receipts for the prior month, less
sales tax, from all court usage fees.
(c) During Year 3, and any subsequent years of contract: 10% of gross receipts,
less sales tax, from all court usage fees.
(d) In the event City chooses to seek a ruling from the State Comptroller
regarding the collection of sales tax on court usage fees.
In the event the State Comptroller rules that sales taxes do not need to be
collected on court usage fees, Contractor agrees to pay City 15% of gross
receipts from court usage fees in Year 1, and 20% of gross receipts from court
usage fees in subsequent years.
§5.2 Management fee due to contractor. As consideration and compensation for
the management, operation and supervision of the tennis center, CONTRACTOR shall
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 10 of 21
receive, and is authorized to withdraw from the account described in Section 6.1 below, all
gross revenues less and except only the sums due to CITY under Section 5.1 above.
§5.3 3 Following an annual review in accordance with Article 7, either party may
request a review and consideration of the fees and finances under Article 5 and Article 6 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 finances resulting
from such renegotiation shall be effective only if approved by both the Contractor and the City
Council and agreed in writing by the parties. In the event of such a modification to the fees
and finances, 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.
ARTICLE 6. FINANCES
§6.1 Deposit of revenues. All revenues from the operation of the tennis center shall
be deposited daily into an account established for that purpose.
§6.2 Fees and charges.
(a) Fees to be charged for tennis activities at the tennis center will be determined
each year during the budget process. CITY and CONTRACTOR agree that
fees should be sufficient to pay operating expenses, but also be competitive
with fees at other public tennis centers in the region.
(b) Court usage fees, and membership or patron facility card fees, if used, must
be approved by CITY. Prices charged for lessons, drills, camps, services,
food, beverages, and merchandise shall be determined by CONTRACTOR.
All patrons of the tennis center shall be charged according to a published
schedule of fees and charges, and any complementary food, merchandise, or
services shall be documented.
(c) Neither CONTRACTOR nor CONTRACTOR's employees, agents or sub-
contractors shall waive any court usage fees which would lessen the gross
revenue that would otherwise be derived from the operation of the Tennis
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 11 of 21
Center, except with the prior written consent of the Director of Community
Services.
§6.3 City's payment of certain expenses. CITY shall be responsible for physical
maintenance of, and pay for, all necessary repairs to the actual physical conditions of the
tennis center, including without limitation, the tennis courts, light poles, exterior of the tennis
pro shop (including all structural aspects such as the foundation, walls, roof, etc.), lawns,
parking, sidewalks, seating, landscaping and plumbing, electrical, heating, ventilating and air
conditioning, and natural gas systems and fixtures. CITY agrees to maintain such facilities in a
good and operational condition in keeping with the standards of comparable tennis centers in
the region as defined in this Agreement. CITY shall also perform court repair, resurfacing,
and /or necessary replacement of nets, windscreens, and lights due to ordinary wear and tear.
While CITY shall have no responsibility for maintenance or repairs until and unless the
CONTRACTOR first notifies CITY in writing of the specific need for repair. All other
maintenance responsibilities shall be CONTRACTOR's responsibility.
CONTRACTOR will notify CITY when, in the opinion of CONTRACTOR, that any of the
facilities maintained by CITY requires maintenance. 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 undertake
reasonable efforts to respond to CONTRACTOR in writing within ten (10) business days of
receipt of CONTRACTOR'S written request.
§6.4 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, office furniture and supplies, pro shop inventory and display racks,
racquet stringing equipment, ball machines, etc.
§6.5 Facility improvements. Any improvements or modifications to the tennis center
that are of a permanent nature or installed as fixtures to the tennis center, shall become the
property of the CITY. CITY approval is required prior to any modifications or improvements to
the tennis center.
§6.6 Annual operating budget.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 12 of 21
(a) CONTRACTOR shall submit proposed budget considerations to the Director of
Community Services by April 1 of each year for review of potential impact to the
City's operating budget and capital improvements budget.
ARTICLE 7. ACCOUNTING, REPORTS, AND AUDITS
§7.1 Accounting records. CONTRACTOR shall maintain efficient and accurate
accounting records in accordance with generally accepted accounting principles in a format
consistent with other public tennis centers.
§7.2 reports.
(a) CONTRACTOR shall prepare daily and weekly reports showing the amounts,
total and types of revenues collected at the Tennis Center.
(b) On or before the 10th day of each month, CONTRACTOR shall submit to
CITY a financial statement showing in detail the gross revenues and
operating expenses of the preceding month and the fiscal year to date
including the weekly reports for the preceding month as required by 7.2(a)
above.
§7.3 Annual financial review. Within 90 days after the close of each fiscal year of
the CITY, CONTRACTOR shall submit to CITY 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,
certified by a certified public accountant, should there be reason to believe an audit is
warranted. If the report does not contain an "unqualified opinion," CITY may take such steps
as it determines are necessary to obtain an unqualified opinion. CITY may terminate this
Agreement if CONTRACTOR fails to provide an unqualified opinion within 120 days of the end
of a fiscal year.
§7.4 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.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 13 of 21
§7.5 Location of records. CONTRACTOR shall keep all tennis center records on -site
at the tennis center or at home office and periodically relocate them to the CITY'S off -site
records storage facility.
§7.6 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 8. INDEMNITY AND INSURANCE
§8.1 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
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, HIS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
SUBCONTRACTORS, OR LICENSEES, IF ANY, REGARDLESS OF WHETHER USCH
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.
§8.2 Insurance .
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 14 of 21
(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:
(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
(ii) independent contractors
(iii) personal injury
(iv) products /completed operations
and
Property damage:
$ 250,000 per occurrence
or
$1,000,000 combined single
limit for bodily injury
and property damage.
(3) Property insurance for physical
damage to the property of
CONTRACTOR located at the
Coverage for minimum of
100% of the fair market value
of the property.
Tennis Center.
(4) Automobile liability, including
coverage for the following:
Bodily injury:
$ 500,000 each person
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 15 of 21
(i) owned /leased automobiles
(ii) non -owned automobiles
(iii) hired cars
$1,000,000 each occurrence
and
Property damage:
$ 250,000 per occurrence
$1,000,000 combined single
limit for bodily injury and
property damage.
(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 9. TERMINATION
§9.1 For default. CITY may terminate this Agreement in accordance with this article
for a default by CONTRACTOR.
§9.2 What constitutes a default. The following events constitute a default by
CONTRACTOR:
(a) a breach of the fiduciary obligations of CONTRACTOR under Sections 5.1, 5.2, and
7.6 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) a discontinuance by CONTRACTOR of its business or abandonment of its activities
at the tennis center;
(d) the inability of CONTRACTOR to provide an unqualified opinion in the annual audit
report in accordance with article 7; or
(e) a failure of CONTRACTOR to perform his duties under this Agreement.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 16 of 21
(f) The commission by CONTRACTOR or any of CONTRACTOR's employees of a
felony or crime of moral turpitude if the CITY, in its sole discretion, reasonably
believes that CONTRACTOR or CONTRACTOR's employee 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 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.
§9.3 Correction. CONTRACTOR shall have 30 days after written notice from CITY
specifying the nature of a default under Section 9.2(e) or Section 9.2(f) 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 9.2(f) 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.
§9.4 Election to terminate. 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
9.2(a), (b), (c), or (d), or is under Section 9.2(f) 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 9.2(e) or is under Section 9.2(f) 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 9.3, and CITY delivers to
CONTRACTOR notice of its election to terminate the Agreement.
§9.5 Remedy for certain defaults. If CONTRACTOR defaults under Section 9.2(a),
CONTRACTOR shall pay all amounts due CITY at the time of its default under the terms of
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 17 of 21
this Agreement and in addition, pay all costs, damages, expenses, and reasonable attorneys'
fees incurred by CITY as a result of the default and in pursuing its remedy.
§9.6 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 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
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 18 of 21
protect CITYs security interest in the property and proceeds under the provisions of the
Business and Commerce Code in force in Texas.
§9.7 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 10. ASSIGNMENT AND DELEGATION
Neither party shall assign or delegate this agreement without the prior written consent of
the other party.
ARTICLE 11. 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 Stephen Poorman, member
220 Canyon Lake Drive
Southlake, Texas 76092
All notices to CITY shall be sent to:
City Manager
City of Southlake
1400 Main Street, Suite 460
Southlake, Texas 76092
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 19 of 21
ARTICLE 12. MISCELLANEOUS
§12.1 Non - Waiver. This Agreement shall not be construed against the drafting party.
§ 12.2 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 13. 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,
sentences, clauses, or sections in this Agreement shall not affect the remaining portions of the
Agreement.
ARTICLE 14. 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 15. 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 16. BINDING CLAUSE
This Agreement shall be binding upon the parties, their heirs, executors, administrators,
devisees, legatees, trustees, successors, and assigns.
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 20 of 21
ARTICLE 17. 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.
The values set forth in Section 8 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 , 2010
CITY OF SOUTHLAKE, TEXAS
Mayor
ATTEST:
City Secretary
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Shana Yelverton, City Manager
City Council Meeting Date — December 7, 2010
Page 21 of 21
CONTRACTOR
Stephen Poorman
Mia Gordon - Poorman