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CC Resolution No. 9115 ., RESOLUTION NO. 9115 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF CONTRACT BETWEEN CITY OF CUPERTINO AND TENNIS PRO LIFETIME TENNIS, CUPERTINO SPORTS CENTER WHEREAS, there has been presented to the City Council a contract between the City of Cupertino and Tennis Pro Lifetime Tennis providing for tennis instruction at the Cupertino Sports Center; and WHEREAS, the terms, conditions and provisions of the contract have been reviewed and approved by the City Attorney and the Director of Parks and Recreation. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned contract and authorizes the Mayor and City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 20tlrlayof June ,1994 by the following vote: Y!!1!: Members QÍ~ Q.b:: Council AYES: Bautista, Burnett, Sorensen, Dean NOES: None ABSENT: Koppel ABSTAIN: None ATTEST: APPROVED: 181 Kim Marie Smith City Clerk 181 Wally Dean Mayor, City of Cupertino resoluti\res9115.doc ACCOUNT NO. CONTRACT AMOUNT $ PURCHASE ORDER NO. PERSONAL SERVICES AGREEMENT (Tennis Pro) THIS AGREEMENT, made and entered into this day of 1994, by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and DANA K. GILL and MICHAEL A. SCADDEN, general partners in LIFETIME TENNIS with offices at 4800 La Fiesta Place, San Jose, CA, 95129, hereinafter referred to as "TENNIS PRO"; WITNESSETH: WHEREAS, CITY wishes to retain services in conjunction with providing tennis lessons to city sponsored groups at the Cupertino Sports Center; and WHEREAS, CITY wishes to engage TENNIS PRO to provide these services by reason of its qualifications and experience for performing such services, and TENNIS PRO has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: 1. DEFINITIONS. (a) The word "City" as used in this agreement shall mean and include all the territory lying within the municipal boundaries of the City of Cupertino, California, as presently existing, plus all territory which may be added thereto during the term of this agreement by annexation or otherwise. (b) The term "City Manager" shall mean the duly appointed City Manager of the City of Cupertino, California, or his designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or her designated representative. (e) The term "Personal Services" shall mean the providing of tennis instructions by Tennis Pro or his employees at the City's Sports Center. 2. COORDINATION OF SERVICES, (a) Cili· The City Manager shall be the representative of the CITY for all purposes under this agreement. Stephen G, Dowling, Director of Parks and Recreation, is hereby designated as the SERVICE COORDINATOR for the City Manager, and shall supervise the progress and execution of this agreement. (b) Tennis Pro. DANA K. GILL and MICHAEL A. SCADDEN shall have overall responsibility for the progress and execution of this agreement. 3. DUTIES OF THE TENNIS PRO. (a) Services to be Furnished. TENNIS PRO shall provide all specified services as set forth below: (1) Tennis lessons for all city-sponsored groups as determined by the CITY. Class size and court usage shall be established and approved by the CITY. (2) May give private tennis lessons utilizing court 12 of the Cupertino Sports Center and any other court approved by the CITY, provided, however that the CITY shall have the sole right to establish the use of all tennis courts at the Sports Center and the TENNIS PRO's right to give private lessons on any court is subject to the CITY's right to priority usage for the CITY sponsored activities. (3) All lessons above described shall be provided at a quality consistent with the standards found in other tennis facilities in the area which are open to the public. (4) During the winter and summer sessions, will distribute to each tennis pupil an evaluation form prepared by the CITY and designed for pupil to evaluate of the level of instruction given, and will, at the conclusion of each session, return all completed evaluation forms to the CITY. (5) Will provide all necessary and appropriate equipment for the purpose of teaching "high quality tennis lessons," including, but not limited to, tennis balls and ball machines. Such equipment shall be stored at the Cupertino Sports Center in space provided by CITY adjacent to court #12. (6) Will respond in writing to all public complaints no later than two (2) days after the complaint was registered. Both complaints and responses will be documented and forwarded to the CITY no later than the first of each month. 2 (7) Will teach lessons based on the following minimum and maximum number of students: Small Group Lessons Large Group Lessons Pee Wee Lessons Minimum 3 4 5 Maximum 4 8 10 The minimum and maximum number of students may be modified by mutual agreement. (b) Laws to be Observed. TENNIS PRO and his employees shall obey all rules, regulations, and laws of the CITY or any other governmental agency and shall procure, at his sole cost, all permits and licenses required for his conduct of business at the Sports Center. (c) Collection of Fees and Charges. All fees and charges for the services provided by TENNIS PRO shall be collected from the public by the CITY. 4. COMPENSATION. For the full performance of the services described herein by TENNIS PRO, CITY shall pay TENNIS PRO 80% of all gross revenue received by CITY for the TENNIS PRO's services to be paid as follows: (a) Payments for lessons given to city-sponsored groups shall be paid within thirty (30) days of the beginning of each class session. (b) Payments for private lessons shall be paid within thirty (30) days of commencing instruction. (c) The CITY shall provide TENNIS PRO a written monthly accounting of all monies received pursuant to this agreement. Unless written objections to any particular accounting is received by CITY from TENNIS PRO within thirty (30) days of receipt, such accounting shall be deemed to be final. (d) The fees and charges for all lessons both for city-sponsored and private pupils will be established solely by the CITY pursuant to its normal procedure for establishing such fees and charges. (e) Exclusive Privilege. During the term of this agreement, TENNIS PRO is granted the exclusive privilege of providing tennis instruction at the Cupertino Sports Center other than that which is provided by CITY employees in connection with city-sponsored programs, 3 5. TERM AND EARLY TERMINATION. The services to be performed hereunder shall commence on June 20, 1994, and shall continue, unless earlier terminated pursuant to this agreement until June 19, 1995 when this contract shall be automatically terminated. Either party may terminate this agreement at an earlier time than above specified by giving ninety (90) days written notice to the other party. 6. TERMINATION FOR BREACH. Notwithstanding the provisions of section 6 above, should either party be in default in the performance of this agreement or materially breach any of its provisions, the non-breaching party may, at its option, immediately terminate this agreement by giving written notification to the other party. 7. TEMPORARY SUSPENSION. The City Manger shall have the authority to suspend this agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the TENNIS PRO to perform any provision of this agreement. 8, ASSIGNMENT' SUBCONTRACTORS: EMPLOYEES. (a) Assignment. Both parties shall give their personal attention to the faithful performance of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any right, title, or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment without such approval shall be void and, at the option of the other party, shall terminate this agreement and any license or privilege granted herein. This agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (b) Subcontractors: Employees. TENNIS PRO shall be responsible for employing or engaging all persons necessary to perform the services of TENNIS PRO hereunder. No subcontractor of TENNIS PRO will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of TENNIS PRO, and it agrees to be responsible for their performance. TENNIS PRO shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subcontractors, if any, and shall keep the work under its control. If any employee or subcontractor of TENNIS PRO fails or refuses to carry out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be discharged immediately from the work under this agreement on demand of the CITY. 4 9. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Office of the City Clerk 10300 Torre Avenue Cupertino, CA 95014 TO TENNIS PRO: LIFETIME TENNIS DANA K. GILL 4800 La Fiesta Place San Jose, CA 95129. 10. INTEREST OF TENNIS PRO. TENNIS PRO covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. TENNIS PRO further covenants that, in the performance of this agreement, no subcontractor or person having such an interest shall be employed. TENNIS PRO certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY, It is expressly agreed that, in the performance of the services hereunder, TENNIS PRO shall at all times be deemed an independent contractor and not an agent or employee of CITY. 11. INDEMNITY. TENNIS PRO hereby agrees to indemnify and save harmless CITY, its officers, agents, and employees of and from: (a) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of any person or damage suffered or sustained by any person or corporation caused by, or alleged to have been caused by, any act or omission, negligent or otherwise, of TENNIS PRO or any subcontractor under this agreement or of TENNIS PRO's or any subcontractor's employees or agents; (b) Any and all damage to or destruction of the property of CITY, its officers, agents, or employees occupied or used by or in the care, custody, or control of TENNIS PRO, or in proximity to the site of TENNIS PRO's work, caused by any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of TENNIS PRO's or any subcontractor's employees or agents. (c) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any employee or agent of TENNIS PRO or any subcontractor under this agreement, however caused, excepting, however, any such claims and demands which are the result of the sole negligence or willful misconduct of CITY, its officers, agents, or employees; 5 (d) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any infringement or alleged infringement of any patent rights or claims caused or alleged to have been caused by the sue of any apparatus, appliance, or materials furnished by TENNIS PRO or any subcontractor under this agreement; and (e) Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit. TENNIS PRO, at its own cost, expense, and risk, shall defend any and all suits, actions, or other legal proceedings that may be brought or instituted by third persons against CITY, its officers, agents, or employees on any of the above claims or demands of such third persons, or to enforce any of the above penalties, and pay and satisfy any judgment or decree that may be rendered against CITY, its officers, agents, or employees in any such suit, action, or other legal proceedings. 12. WORKERS' COMPENSATION. TENNIS PRO certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 13. INSURANCE. TENNIS PRO, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this agreement the insurance coverage of at least a "B" rating as determined in accordance with the insurance industry standard, insuring not only TENNIS PRO, but also (with the exception of workers' compensation and employer's liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed by TENNIS PRO for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days thereafter. Said certificates shall be subject to the approval of the City Attorney and shall contain an endorsement stating that said insurance is primary coverage and will not be cancelled or altered by the insurer except after filing with the City Clerk thirty (30) days' written notice of such cancellation or alteration, and that the City of Cupertino is named as an additional insured, Current certificates of such insurance shall be kept on file at all times during the term of this agreement with the City Clerk. 14. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. 6 15. WAIVERS, The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or any provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 16. COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. 17. NONDISCRIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. If the value of this agreement is, or may be, Five Thousand Dollars ($5,000) or more, TENNIS PRO agrees to meet all requirements of the Cupertino Municipal Code pertaining to nondiscrimination in employment and to complete and submit the "Compliance Report--Nondiscrimination Provisions of City of Cupertino Contracts" on the form furnished by CITY. If TENNIS PRO is found in violation of the nondiscrimination provIsIons of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, CITY shall have the pOwer to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to TENNIS PRO the sum of Twenty-five Dollars ($25) for each person for each calendar day during which said person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. If TENNIS PRO is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement, TENNIS PRO shall be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to TENNIS PRO the sum of Two Hundred Fifty Dollars ($250) for each calendar day during which TENNIS PRO is found to have been in such noncompliance as damages for said breach of contract, or both. 7 18. AGREEMENT CONTAINS ALl, UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and TENNIS PRO and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and TENNIS PRO, All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and TENNIS PRO have executed this agreement the day and year first above written. ATTEST CITY OF CUPERTINO City Clerk APPROVED AS TO FORM: City Attorney .Y~M /;¡,~/d ~t2'/¿::-¿{/Y'- Michael A. Scadden, Tennis Pro .Dana K. Gill, Tennis Pro 4800 La Fiesta Place. San Jose. CA 95129 Address 408-554-6060 Telephone 5"3n-Ç3/-/Gd.-3 4:r Social Security number or Tax I.D. number 572-V'1-"ð5<6'è ~ 8