HomeMy WebLinkAboutCC AG PKT 2011-07-25 #FAGENDA STAFF REPORT
DATE: July 25, 2011
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Sean P. Crumby PE, Assistant City Manager /Public Works
SUBJECT: SEAL BEACH TENNIS CENTER - MANAGEMENT
SERVICES AGREEMENT
SUMMARY OF REQUEST:
That the City Council adopt Resolution No. 6168 approving a revised agreement
for the management and operation of Seal Beach Tennis Center with First Serve
Tennis, Inc. ( "First Serve ").
BACKGROUND AND ANALYSIS:
On November 11, 2008 the City Council adopted Resolution Number 5812
authorizing the City Manager to execute an agreement with First Serve for
management of the Seal Beach Tennis Center. The term of the agreement was
from January 1, 2009 through December 31, 2014.
First Serve, through Chief Executive Officer Cathy Jacobson -Guzy, began
operating the facility full time on January 1, 2009. Under the current
management agreement, First Serve is tasked to operate, manage and supervise
the Seal Beach Tennis Center, consisting of 16 tennis courts, clubhouse, pro
shop, gym, and locker room facilities. Additionally, two of the major scopes of
services terms require First Serve to actively promote the sport of tennis and the
Seal Beach Tennis Center and enhance the Tennis Center's appeal and use
within the community, and manage the Tennis Center so that all facilities,
buildings, structures, and equipment are in good, safe, operating, useable and
sanitary order and condition.
During the fiscal year 2011/12 budget hearings it was projected that the Seal
Beach Tennis Center was operated at a deficit of approximately $70,000 for the
fiscal year 2010/11. After completion of the fiscal year, the actual deficit is
approximately $64,000. At that time staff was directed to look into all contracts in
conjunction with the Seal Beach Tennis Center in an effort to reduce the
expected deficit for the fiscal year 2011/12 budget.
Agenda Item F
Page 2
The largest expenditures that have the potential to reduce expenses are the
landscape maintenance, janitorial services, and First Serve's draw on the
monthly salary. Each vendor was contacted individually to gauge possible
savings for the City. First Serve has approached the City about the possibility of
taking on the responsibility of janitorial services. First Serve is confident that its
current staff can manage the janitorial services at an equal level to what the
City's contract vendor is currently providing, and is also willing to accept $4,000 a
month in draw instead of $5,000. The table below details the anticipated savings
for fiscal year 2011/12:
2011 -2012 2011 -2012 Total Savings
Adopted Budget Reduction 2011 -2012
Landscape Maintenance $50,000 10% $1,133
Janitorial Services $25,000 100% $25,000
Manager's Draw $60,000 20% $11,000
The anticipated savings that the City can expect to see for 2011/12 is $37,133.
This would reduce the anticipated deficit from approximately $64,000 to
approximately $26,867 for the fiscal year 2011/12.
Staff believes that a fair and equitable agreement has been negotiated that
provides the same standards of management that the facility has become
accustomed to while offering the City necessary financial relief. Although the
Manager's Draw has been reduced by 20 %, this agreement provides an
incentive for First Serve to increase revenue for the facility: If the facility breaks
even, First Serve and the City will split all revenue above the cost neutral point.
Staff and Tennis Center Management are also working closely together to
identify future revenue sources such as advertising, personal training and an
increased juniors program. Staff anticipates presenting a detailed review of the
finances and management of the Seal Beach Tennis Center during the upcoming
midyear budget review.
AMENDMENTS TO CURRENT AGREEMENT
For the most part, the revised agreement is virtually identical to the current
agreement, except as noted below:
• Section 2.2: City will pay First Serve $4,000 (instead of $5,000) per
month;
• Section 2.3: If revenue exceeds expenses during the preceding
fiscal year, CITY shall pay CONTRACTOR 50% of any surplus, up
to a maximum of $12,000;
• Section 1.1.15: First Serve shall provide janitorial services and pay
for all costs associated therewith;
Page 3
• Section 4.0: Term of the Agreement has been extended to June 30,
2016 (Current expiration date is December 31, 2014);
• Section 1.6 has now been renumbered as Section 1.5;.
• Sections 1.6 (formerly Section 1.5) and 1.7 have been revised to
clarify that First Service will purchase all retail items with its own
money, and not include the purchase price of any retail items as an
operating expense (There is no change to the provision that the
City will continue to receive $10% of the gross receipts of retail
sales); and
• Section 3.0 has been amended to refer to the provisions in the
"Individual Joint -Use Agreement for Seal Beach Tennis Center"
dated January 26, 2009 regarding the use by the Los Alamitos High
School Tennis Teams so that each agreement is consistent (The
Council may recall that the Council changed those provisions at the
time it approved the Joint Use Agreement, two months after the
agreement with First Serve was approved.)
FINANCIAL IMPACT:
The following represents anticipated savings as a result of the revised
agreement:
2011 -2012
Adopted Budget
Landscape Maintenance $50,000
Janitorial Services $25,000
Manager's Draw $60,000
RECOMMENDATION:
2011 -2012
Total Savings
Reduction
2011 -2012
10%
$1,133
100%
$25,000
20%
$11,000
That the City Council adopt Resolution No. 6168 approving a Tennis Center
Management Services Agreement with First Serve Tennis, Inc.
SUBMITTED BY:
�. _,o
Sean P. Crumby,
Assistant City Manag /Public Works
NOTED AND APPROVED:
0 WE /��I�' L
P il R. In gram
l� .•-
Prepared by: Tim Kelsey, Community Services Supervisor
Attachment(s):
A. Resolution No. 6168
B. Agreement
RESOLUTION NUMBER 6168
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A TENNIS CENTER MANAGEMENT SERVICES
AGREEMENT WITH FIRST SERVE TENNIS, INC.
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
SECTION 1. The City Council hereby approves a revised 5 year Tennis
Center Management Services Agreement between the City of
Seal Beach and First Serve Tennis, Inc. regarding the Seal
Beach Tennis Center.
SECTION 2. The Council hereby directs the City Manager to execute the
Tennis Center Management Services Agreement.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a
regular meeting held on the 25th day of July , 2011 by the following vote:
AYES:
NOES: Council Members
ABSENT: Council Membe
ABSTAIN: Council Members
Mayor
ATTEST:
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 6168 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council at
a regular meeting held on the 25th day of July , 2011.
Council Members
City Clerk
TENNIS CENTER
MANAGEMENT SERVICES AGREEMENT
(REVISED)
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
.1.
First Serve Tennis, Inc.
1040 Park Avenue
Long Beach, CA 90804
(562) 425 -0553
This Professional Service Agreement ( "the Agreement ") is made as of July 25, 2011
(the "Effective Date "), by and between First Serve Tennis, Inc., a California Corporation
(CONTRACTOR), and the CITY OF SEAL BEACH, a California Municipal Corporation
( "CITY ") (collectively, the CONTRACTOR and the CITY shall be referred to herein as
the "Parties" and individually as a "Party ").
RECITALS
& WHEREAS, the Parties have mutual interest in the accomplishment of the
following goals:
a. To provide wholesome, high - quality sports programming in proper facilities
for athletes of all abilities; and
b. To provide a first -class competitive and recreational tennis program to
meet the recreation needs of the community; and
C. To ensure that the community's tennis center is operated in the most
responsible, cost - effective and efficient manner possible; and
B. WHEREAS, tennis is a practical, accessible and lifelong sport critical to the
CITY's recreational program; and
C. WHEREAS, CITY is charged with the responsibility of providing public facilities
for the purpose of leisure time and recreation activities and health enrichment for
general public wellness and fitness; and
D. WHEREAS, CITY is the owner of the Seal Beach Tennis Center ( "TENNIS
CENTER "), located at 3900 Lampson Avenue, Seal Beach and desires to contract for
the management of the TENNIS CENTER; and
E. WHEREAS, CONTRACTOR is dedicated to promoting high athletic achievement,
good sportsmanship, and integrity; and
F. WHEREAS, both CONTRACTOR and its Chief Executive Officer Cathy
Jacobson -Guzy ( "Jacobson - Guzy ") represent that CONTRACTOR and Jacobson -Guzy
are qualified and able to provide CITY with such services. Jacobson -Guzy represents
that she is fully qualified to perform the professional services required by this
Agreement, by virtue of her experience, training, education, and expertise; and
G. WHEREAS, there is an existing Tennis Center Management Services Agreement
between CITY and CONTRACTOR dated November 11, 2008 (the "2008 Agreement ");
and
H. WHEREAS, it is the express mutual intentions of the Parties that this Agreement
terminate and supersede the 2008 Agreement as of the effective date of this
Agreement.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows.
2of13
AGREEMENT
1.0 Scope of Services
1.1. CONTRACTOR shall provide professional management services for the
TENNIS CENTER. Specifically, CONTRACTOR shall:
1.1.1. Actively promote the sport of tennis and the TENNIS CENTER for
the City of Seal Beach; enforce all rules and regulations for public use of the TENNIS
CENTER, including but not limited to regulating play and conduct of players; preserving
order, and providing safety for the TENNIS CENTER and its guests.
1.1.2. Provide courteous and informative tennis instruction and all
services customarily provided by a tennis professional. Ensure that qualified instructors
teach private, semi - private and group lessons for all ages and all skill levels.
1.1.3. Take reasonable steps to improve the TENNIS CENTER; be a
good steward of it; monitor, inspect and properly manage the facilities and grounds;
maintain tennis courts in good playing condition; on a daily basis sweep and clean the
tennis courts; repair and replace court nets and windscreens as required. The CITY
shall be responsible for the cost of replacing court nets and windscreens in accordance
with Subsection 2.1.
1.1.4. Schedule tournaments and other tennis activities with special
interest groups, private groups, tennis clubs, school interests, or any of these to assure
the best overall, well- rounded tennis program for the community while incorporating
public play and use of facilities in the overall program.
1.1.5. Maintain, sell, and rent merchandise, supplies, and equipment to
meet customer demand and suitable for use at the TENNIS CENTER. Operate,
manage and supervise a fully stocked pro shop, with services including, but not limited
to, a complete selection of top of the line tennis equipment and attire for men, women
and juniors. Operate, manage and supervise the sale and repair of tennis rackets and
other tennis related equipment.
1.1.6. Operate, manage and supervise the clubhouse, which services
may include, but not be limited to, food and beverage service or catering as permitted
by the CITY, the County of Orange Health Care Agency and the California Department
of Alcoholic Beverage Control.
1.1.7. Run the TENNIS CENTER in an ethical fashion; be dedicated to
the highest ideals of honor and integrity in all relationships so that operation of the
TENNIS CENTER may merit the respect and confidence of the City Manager, and of
the public. Maintain proper financial records and procedures. Conduct criminal
background checks and fingerprinting of all employees who contract for or provide
tennis instruction to any person under the age of 18.
3of13
1.1.8. Organize and operate recreational and competitive tennis
programs, including, for example, singles and doubles nights, recreation and
competitive ladders, age and /or gender- specific activities, instructional clinics and
academies.
1.1.9. Promote and market the TENNIS CENTER, including the tennis
courts, clubhouse, pro shop and other pertinent areas, in a manner calculated to
enhance revenue flow to the CITY and in a manner that will provide quality service for
public and private use. Such efforts may include outreach and advertising efforts,
subject to CITY approval.
1.1.10. Gather information about program participants and facility
user satisfaction, and share such information with CITY on a regular basis.
1.1.11. Manage the TENNIS CENTER so that all facilities, buildings,
structures, improvements, fixtures, trade fixtures, equipment, and utility systems are in
good, safe, operating, usable and sanitary order and condition.
1.1.12. Promptly notify the CITY when TENNIS CENTER facilities
require repair, replacement, rebuilding, or restoration.
1.1.13. Keep interiors of all buildings including restrooms,
furnishings, and fixtures in a safe and sanitary condition.
1.1.14. Keep the TENNIS CENTER clear of trash, debris, and
graffiti.
1.1.15. Provide janitorial service, which shall be at the sole expense
of the CONTRACTOR.
1.1.16. Provide and maintain court cleaning equipment, empty trash
receptacles on individual courts, and place trash bins in suitable locations for waste
removal services.
1.1.17. Use reasonable efforts to prohibit intoxicated persons,
profane or indecent language, or boisterous or loud conduct in or about the TENNIS
CENTER and will call upon the aid of the CITY police department to assist in
maintaining peaceful conditions.
1.2. CONTRACTOR hereby designates Jacobson -Guzy as the Principal
Operator for purposes of this Agreement. Jacobson -Guzy shall be primarily responsible
for the day -to -day management of the TENNIS CENTER in accordance with the terms
and conditions set forth in this Agreement. CITY is retaining CONTRACTOR based on
and for Jacobson - Guzy's special expertise and experience. Thus, Jacobson -Guzy shall
personally perform or supervise all of the services required under this Agreement, and
CONTRACTOR agrees that it will not hire any subcontractor or third party to provide or
perform the services required under this Agreement, except tennis pros, office
personnel, and such personnel as required.
4of13
1.3. CONTRACTOR must maintain the following operating hours for the
TENNIS CENTER: 7:30 a.m. to 9 :30 p.m., Monday through Friday; and 7:30 a.m. to
5:30 p.m. on Saturdays and Sundays. Prior to December 15 of each year,
CONTRACTOR and CITY will develop a holiday schedule for the following year.
1.4. CONTRACTOR must not permit any children under the age of 16 to use
the fitness center, lockers, spa, or sauna, except that members the Los Alamitos High
School may use the TENNIS CENTER in accordance with Section 3 of this Agreement.
1.5. CONTRACTOR must collect all usage fees required by the CITY for use
of the TENNIS CENTER, including but not limited to, membership fees, rental fees, pay -
to -play fees, and tournament fees in accordance with the CITY's adopted fee schedule,
based on costs reasonably borne. CONTRACTOR shall not charge any fee in excess
of the fees established by the City Council nor shall CONTRACTOR waive fees for any
person or organization without the CITY's prior written approval. Nothing in this
Agreement shall be construed as limiting the CITY's ability to establish and alter usage
fees for the TENNIS CENTER.
1.6. CONTRACTOR shall pay all operating costs and expenses for the
TENNIS CENTER, including but not limited to, costs and expenses related to staffing
and employee payroll, office, athletic equipment and supplies for the operation and use
of the TENNIS CENTER, accounting, telephone service, bank charges on credit card
transactions and license fees, except for those operating costs and expenses set forth
in Subsection 2.1 of Section 2.0 (City Responsibilities). CONTRACTOR will deduct its
actual operating costs and expenses from revenue prior to disbursing the revenue to the
CITY as follows: on the 15th day of every month, CONTRACTOR must deliver to CITY:
(1) all revenues less the costs and expenses deducted pursuant to this subsection; and
(2) an itemized statement of TENNIS CENTER revenues and expenses from the
previous month.
1.7. In connection with the Pro Shop, CONTRACTOR shall, at its sole
expense, purchase all items for retail sales, including athletic supplies and inventory,
and food and beverages. On the 15th day of every month, CONTRACTOR must deliver
to CITY: (1) 10% of the gross receipts from all such retail sales; and (2) an itemized
statement of TENNIS CENTER revenues and expenses from the previous month.
1.8. CONTRACTOR must maintain complete and accurate records of TENNIS
CENTER revenues and expenses for the term of this Agreement, inclusive of any
extensions, and for one year thereafter. All such records must be clearly identified as
being associated with this Agreement. CONTRACTOR must meet on a monthly basis
with the CITY or its designated representative, during normal business hours, to
examine, audit, and make transcripts or copies of such records. CONTRACTOR must
allow CITY or its designated representative to inspect during normal business hours, all
work, data, documents, proceedings, and activities related to this Agreement during the
term of this Agreement, and for a period of one year thereafter.
5of13
1.9. CONTRACTOR must perform all services under this Agreement in a
skillful and competent manner, in accordance with the standard of care generally
exercised by like professionals under similar circumstances and in a manner reasonably
satisfactory to CITY. CONTRACTOR represents and warrants that it has all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
practice its profession and to perform the work hereunder. CONTRACTOR further
represents and warrants that it shall keep in effect all such licenses, permits, and other
approvals during the term of this Agreement, including, without limitation, any liquor
license obtained by CONTRACTOR.
1.10. In performing this Agreement, CONTRACTOR must comply with all
applicable provisions of federal, state, and local law.
1.11. CONTRACTOR will not be compensated for any work performed not
specified in the Agreement unless the CITY authorizes such work in advance and in
writing.
2.0 CITY's Responsibilities
2.1. CITY shall be responsible for the paying all costs and expenses related to
water, gas and electric, landscaping, facility maintenance and repair, security, and pest
control.
2.2. CITY shall pay CONTRACTOR a monthly fee of $4,000, due on the 15th
of every month.
2.3. No later than June 30 of every year during the Term of this Agreement,
the CITY shall assess the finances of the TENNIS CENTER and determine whether the
revenue generated by the TENNIS CENTER has exceeded its operating expenses
during the preceding fiscal year. If revenue exceeds expenses during the preceding
fiscal year, CITY shall pay CONTRACTOR on or before July 31, an annual performance
based fee equal to 50% of any surplus from the preceding fiscal year, up to a maximum
of $12,000.
2.4. Upon consulting with CONTRACTOR, CITY shall establish fees and rates
for the use of the TENNIS CENTER facilities by City Council resolution.
2.5. CITY agrees that if during the course of the Agreement, CONTRACTOR
identifies new revenue streams, the CITY will, upon CONTRACTOR's request, entertain
negotiations regarding additional compensation for CONTRACTOR for the provision of
additional services.
2.6. CITY may, in its sole discretion, close the TENNIS CENTER to preclude
use by the public. Whenever possible, the CITY shall provide CONTRACTOR with
advance notice of any unscheduled closures. Closures will be kept to a minimum when
the TENNIS CENTER is in usable condition. Priority will be given to maintenance
needs and renovation periods.
6of13
3.0 Use by Los Alamitos High School Tennis Teams
Unless otherwise directed by CITY, CONTRACTOR shall allow each member of
the Los Alamitos High School boys and girls tennis teams and the teams' coaches to
use the tennis courts at the TENNIS CENTER in accordance with Section 5.3 of that
certain "Individual Joint -Use Agreement for Seal Beach Tennis Center" dated January
26, 2009.
4.0 Term
This term of this Agreement shall commence July 25, 2011 and continue until
June 30, 2016 unless previously terminated as provided by Section 6.0 of this
Agreement. By written amendment, the Parties may extend the Agreement for up to 2
additional 5 -year terms, and exercised upon giving 90 days written notice prior to the
end of each 5 -year term. Each such extension will be subject to re- negotiation of all
terms and conditions of this agreement.
5.0 Biannual Consultation
The Parties shall meet at least twice a year to discuss the status and condition of
the TENNIS CENTER and the performance of this Agreement.
6.0 Termination
6.1. Either party may terminate this Agreement without cause upon 90 days
written notice.
6.2. CITY may terminate this Agreement:
6.2.1. Upon 30 days written notice to CONTRACTOR in the event of
substantial breach of the Agreement by CONTRACTOR. CONTRACTOR shall
discontinue all services within 10 days of receipt of such notice, unless otherwise
instructed by CITY in writing, and CONTRACTOR shall be liable to CITY for any
reasonable additional costs incurred to correct or cure unsatisfactory work performed by
CONTRACTOR which, at CITY's discretion, must be revised, in part or in whole, to
complete services that were to be performed by CONTRACTOR hereunder.
6.2.2. Upon 10 days written notice to CONTRACTOR if CONTRACTOR
fails to provide satisfactory evidence of renewal or replacement of comprehensive
general liability insurance as required by this Agreement at least 20 days before the
expiration date of the previous policy.
7.0 Party Representatives
7.1. The City Manager is CITY's representative for purposes of this
Agreement.
7of13
7.2. Jacobson -Guzy is CONTRACTOR's sole representative for purposes of
this Agreement.
8.0 Notices
8.1. All notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed 48 hours after deposit in the U.S. Mail,
first class postage prepaid and addressed to the party at the following addresses:
To CITY: City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attention: City Manager
With a copy to: Seal Beach City Attorney
c/o Richards, Watson & Gershon
355 South Grand Avenue
40th Floor
Los Angeles, California 90071 -3101
To CONTRACTOR: First Serve Tennis, Inc.
1040 Park Avenue
Long Beach, California 90804
Attention: Cathy Jacobson -Guzy
8.2. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
9.0 Independent Contractor
9.1. CONTRACTOR is an independent contractor and not an employee of the
CITY. All services provided pursuant to this Agreement shall be performed by
CONTRACTOR or under its supervision. CONTRACTOR will determine the means,
methods, and details of performing the services. Any additional personnel performing
services under this Agreement on behalf of CONTRACTOR shall also not be employees
of CITY and shall at all time be under CONTRACTOR's exclusive direction and control.
CONTRACTOR shall pay all wages, salaries, and other amounts due such personnel in
connection with their performance of services under this Agreement and as required by
law. CONTRACTOR shall be responsible for all reports and obligations respecting such
additional personnel, including, but not limited to: social security taxes, income tax
withholding, unemployment insurance, disability insurance, and workers' compensation
insurance.
9.2. CONTRACTOR shall indemnify and hold harmless CITY and its elected
officials, officers and employees, servants, designated volunteers, and agents serving
as independent contractors in the role of CITY or agency officials, from any and all
liability, damages, claims, costs and expenses of any nature to the extent arising from
11 o MdJc
CONTRACTOR's alleged violations of personnel practices. CITY shall have the right to
offset against the amount of any fees due to CONTRACTOR under this Agreement any
amount due to CITY from CONTRACTOR as a result of CONTRACTOR's failure to
promptly pay to CITY any reimbursement or indemnification arising under this Section.
10.0 Assignment
CONTRACTOR must not assign or transfer any interest in this Agreement
whether by assignment or novation, without the prior written consent of CITY. Any
purported assignment without such consent shall be void and without effect.
11.0 Insurance
11.1. CONTRACTOR must not commence work under this Agreement until it
has provided evidence satisfactory to the CITY that CONTRACTOR has secured all
insurance required under this Section in the form attached hereto as Exhibit A.
CONTRACTOR must furnish CITY with original certificates of insurance and
endorsements effecting coverage required by this Agreement on forms satisfactory to
the CITY. The certificates and endorsements for each insurance policy must be signed
by a person authorized by that insurer to bind coverage on its behalf, and must be on
forms provided by the CITY if requested. All certificates and endorsements must be
received and approved by the CITY before work commences. The CITY reserves the
right to require complete, certified copies of all required insurance policies, at any time.
11.2. CONTRACTOR must, at its expense, procure and maintain for the
duration of the Agreement, insurance against claims for injuries to persons or damages
to property that may arise from or in connection with the performance of this Agreement.
Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:
VIII, licensed to do business in California, and satisfactory to the CITY. Coverage must
be at least as broad as the latest version of the following: (1) General Liability:
Insurance Services Office Commercial General Liability coverage (occurrence form CG
0001); and (2) Automobile Liability: Insurance Services Office Business Auto Coverage
form number CA 0001, code 1 (any auto). CONTRACTOR must maintain limits no less
than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury
and property damage and if Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury
and property damage.
11.3. The insurance policies must contain the following provisions, or
CONTRACTOR must provide endorsements on forms supplied or approved by the
CITY to state: (1) coverage shall not be suspended, voided, reduced or canceled except
after 30 days prior written notice by certified mail, return receipt requested, has been
given to the CITY; (2) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the
CITY, its directors, officials, officers, (3) coverage must be primary insurance as
9of13
respects the CITY, its directors, officials, officers, employees, agents and volunteers, or
if excess, must stand in an unbroken chain of coverage excess of the CONTRACTOR's
scheduled underlying coverage and that any insurance or self- insurance maintained by
the CITY, its directors, officials, officers, employees, agents and volunteers shall be
excess of the CONTRACTOR's insurance and must not be called upon to contribute
with it; (4) for general liability insurance, that the CITY, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with respect
to the services or operations performed by or on behalf of the CONTRACTOR, including
materials, parts or equipment furnished in connection with such work; and (5) for
automobile liability, that the CITY, its directors, officials, officers, employees, agents and
volunteers shall be covered as additional insureds with respect to the ownership,
operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the CONTRACTOR or for which the CONTRACTOR is responsible.
11.4. All insurance required by this Section must contain standard separation of
insureds provisions and must not contain any special limitations on the scope of
protection afforded to the CITY, its directors, officials, officers, employees, agents, and
volunteers.
11.5. Any deductibles or self - insured retentions must be declared to and
approved by the CITY. CONTRACTOR guarantees that, at the option of the CITY,
either: (1) the insurer shall reduce or eliminate such deductibles or self- insured
retentions as respects the CITY, its directors, officials, officers, employees, agents, and
volunteers; or (2) the CONTRACTOR shall procure a bond guaranteeing payment of
losses and related investigation costs, claims and administrative and defense expenses.
12,0 Indemnification, Hold Harmless, and Duty to Defend
12.1. CONTRACTOR must indemnify, and hold the CITY, its officials, officers,
employees, volunteers and agents (collectively "CITY's Indemnitees ") free and harmless
from any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to any acts or omissions of CONTRACTOR, its
employees, or its agents in connection with the performance of this Agreement,
including without limitation the payment of all consequential damages and attorney's
fees and other related costs and expenses. With respect to any and all such aforesaid
suits, actions, or other legal proceedings of every kind that may be brought or instituted
against CITY's Indemnitees, CONTRACTOR must defend CITY's Indemnitees, at
CONTRACTOR's own cost, expense, and risk, and must pay and satisfy any judgment,
award, or decree that may be rendered against CITY's Indemnitees. CONTRACTOR
must reimburse CITY and its directors, officials, officers, employees, agents and /or
volunteers, for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity provided by this Subsection.
CONTRACTOR's obligation to indemnify shall not be restricted to insurance proceeds, if
any, received by the CITY, its directors, officials, officers, employees, agents or
volunteers. All duties of CONTRACTOR under this Subsection shall survive termination
of this Agreement.
10 of 13
12.2. CITY must indemnify, and hold CONTRACTOR, its officials, officers,
employees, volunteers and agents (collectively "CONTRACTOR's Indemnitees ") free
and harmless from any and all claims, demands, causes of action, costs, expenses,
liability, loss, damage or injury, in law or equity, to property or persons, including
wrongful death, in any manner arising out of or incident to any acts or omissions of
CITY, its employees, or its agents in connection with the performance of this
Agreement, including without limitation the payment of all consequential damages and
attorney's fees and other related costs and expenses. With respect to any and all such
aforesaid suits, actions, or other legal proceedings of every kind that may be brought or
instituted against CONTRACTOR's Indemnitees, CITY must defend CONTRACTOR's
Indemnitees, at CITY's own cost, expense, and risk, and must pay and satisfy any
judgment, award, or decree that may be rendered against CONTRACTOR's
Indemnitees. CITY must reimburse CONTRACTOR and its directors, officials, officers,
employees, agents and /or volunteers, for any and all legal expenses and costs incurred
by each of them in connection therewith or in enforcing the indemnity provided by this
Subsection. CITY's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by the CONTRACTOR, its directors, officials, officers,
employees, agents or volunteers. All duties of CITY under this Subsection shall survive
termination of this Agreement.
13.0 Equal Opportunity
CONTRACTOR affirmatively represents that it is an equal opportunity employer.
CONTRACTOR must not discriminate against any subcontractor, employee, or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, sexual orientation, or age. Such non - discrimination includes, but is not
be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff, or termination.
14.0 Labor Certification
By its signature hereunder, CONTRACTOR certifies that it is aware of the
provisions of Section 3700 of the California Labor Code that 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 agrees to comply with such provisions
before commencing the performance of the services.
15.0 Entire Agreement
This Agreement contains the entire Agreement of the parties with respect to the
subject matter hereof, and supersedes all prior negotiations, understandings, or
agreements, including but not limited to the 2008 Agreement, which is hereby
terminated and superseded by this Agreement. This Agreement may only be modified
by a writing signed by both Parties.
11 of 13
16.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not
void or affect the validity of the other provisions of this Agreement.
17.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
18.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either Party
as a result of this Agreement.
19.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach,
whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
20.0 Prohibited Interests
CONTRACTOR maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for
CONTRACTOR, to solicit or secure this Agreement. Further, CONTRACTOR warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for CONTRACTOR, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, CITY has the right to
rescind this Agreement without liability. For the term of this Agreement, no member,
officer or employee of CITY, during the term of his or her service with CITY, shall have
any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising therefrom.
21.0 Attorney's Fees
If either Party commences an action against the other Party, legal, administrative
or otherwise, arising out of or in connection with this Agreement, the prevailing Party in
such litigation shall be entitled to have and recover from the losing Party all of its
attorney's fees and other costs incurred in connection with such action.
22.0 Corporate Authority
The persons executing this Agreement on behalf of the parties hereto warrant
that they are duly authorized to execute this Agreement on behalf of said parties and
12 of 13
that by doing so, the parties hereto are formally bound to the provision of this
Agreement.
23.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the
Agreement as if set forth in full herein. In the event of any material discrepancy
between the terms of any exhibit so incorporated and the terms of this Agreement, the
terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives, have executed this Agreement as of the date and year first above
written.
CITY OF SEAL BEACH
Attest:
Jill R. Ingram, City Manager
Linda Devine, City Clerk
Approved as to Form:
Quinn M. Barrow, City Attorney
FIRST SERVE TENNIS, INC.
By:
Cathy Jac son -Guzy,
Chief Exe tive Officer
13 of 13