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HomeMy WebLinkAbout*AGMT - Stephens, Eric ADDENDUM TO AGREEMENT FOR SERVICES THIS ADDENDUM TO AGREEMENT FOR SERVICES is entered into by and between the City of Seal Beach ( "City "), and Eric Stephens ( "Contractor "), this J j)" day of lr►4(U , o 200 f . WHEREAS, on December 13, 2004, City and Contractor entered into an Agreement for Services for the operation and maintenance of the Seal Beach Tennis Center ( "Agreement "); whereby, Contractor agreed to provide professional management and operational services for the Center as set forth in the Agreement. WHEREAS, the Agreement provides that after the Introductory Period described in Section 1.2 of the Agreement, the Agreement shall continue for a period of two calendar years commencing on February 1, 2005 and expiring December 31, 2006, and may be annually extended for three additional one -year periods by written notice from the City Manager or his designated representative to the Contractor. WHEREAS, Contractor continued to operate under the terms of Agreement for an additional one year period from January 1, 2007 to December 31, 2007. WHEREAS, City and Contractor desire to modify, alter or amend certain provisions of said as set forth in this Addendum: NOW THEREFORE, City and Contractor agree as follows: 1. The Agreement for Services shall extend for an additional one -year period from January 1, 2008 to December 31, 2008. Except as expressly modified, altered or amended by this Addendum, all other terms, conditions, and covenants of said Agreement shall remain in full force and effect. City of Seal Beach Co tr BY: BY: City Manager I Eric Stephens Date: 3 - la - b"5 Date: l/3/°/ AGREEMENT FOR SERVICES Operation and Maintenance of Seal Beach Tennis Center This AGREEMENT FOR SERVICES is dated as of December 13, 2004, and is entered into by and between THE CITY OF SEAL BEACH, a municipal corporation ( "CITY ") and ERIC STEPHENS, an individual, and as an independent contractor ( "CONTRACTOR "). RECITALS WHEREAS, Seal Beach Tennis Center, located at 3900 Lampson Avenue, Seal Beach, CA 90740, consists of a seven -acre site, 16 tennis courts, a pro shop, a 2,100 square foot clubhouse with kitchen and lounge area, a 3,200 square foot locker /shower restroom facility, a 1,000 square foot fitness room and a parking lot (collectively "the Center "); WHEREAS, CITY requires qualified management and operation of the Center; WHEREAS, CITY desires to contract for said services as is consistent with public park and recreation purposes; WHEREAS, CONTRACTOR has been deemed qualified and experienced to provide for the management and operation of the Center; and WHEREAS, CONTRACTOR desires to enter into an Agreement with CITY pursuant to which CONTRACTOR shall operate and maintain Center subject to the terms and conditions set forth in this Agreement; and NOW, THEREFORE, CITY and CONTRACTOR hereby agree as follows: ARTICLE I SCOPE OF SERVICES: TERM 1.1 General Scope of Services. CONTRACTOR shall provide professional management and operational services for the Center as set forth in Exhibit A -Scope of Services. 1.2 Introductory Period. From December 24, 2004 through January 31, 2005 "the Introductory Period ", CONTRACTOR shall perform the services described in Exhibit A -Scope of Services; provided however, during the Introductory Period, the Center will be open for public play at no charge, on a first come, first serve basis as a marketing tool to introduce the Center to the community, and services such as the pro shop, snack bar and fitness room will not be operated. (This will provide the CONTRACTOR opportunity to set up operations and services, hire employees, establish subcontracts, apply for a liquor license and fulfill the startup requirements identified in this Agreement.) Additionally, CONTRACTOR shall be responsible for initiating a marketing campaign to attract Center users on a monthly fee basis as well as the daily court play fee that will commence on February 1, 2005 as set forth in Exhibit B -Fees and Payments. CONTRACTOR may charge a prorated fee for monthly players during the Introductory Period of which the contractor shall pay to the City 8 %. If a prorated fee is charged to monthly play, such players must sign an indemnity agreement and sign agreement to abide by the rules of the Center. Agreerne nt for Services -Seal Beach Tennis Center CONTRACTOR shall be permitted to conduct private tennis instruction during the Introductory Period. Prior to December 24, 2004, and before any work can be performed on site, CONTRACTOR must fulfill all necessary requirements covering the CONTRACTOR, including proper insurance, fingerprinting and background investigation and security bond as identified in this Agreement. 1.3 Term of Agreement; Rights to Terminate or Extend. After the Introductory Period described in Section 1.2, this Agreement shall continue for a period of two calendar years (the "Term "), commencing on February 1, 2005 and expiring December 31, 2006, subject to extension or termination pursuant to the provisions of this Agreement. The City Manager (or his designated representative) may annually extend the terms of this Agreement beyond the initial two - year period for three additional one -year periods by written notice to CONTRACTOR. ARTICLE II RESPONSIBILITIES 2.1 General Responsibilities. During the Term, CONTRACTOR shall provide the services described in Exhibit A -Scope of Services. 2.2 Control and Payment of Subordinates. CITY retains CONTRACTOR as an independent contractor and not an employee of the CITY. All personnel to be utilized by CONTRACTOR in the performance of this Agreement shall at all times 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 with respect to such personnel, including, but not limited to social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 2.3 Standard of Care; Licenses. CONTRACTOR shall perform the services under this Agreement in a skillful and competent manner. CONTRACTOR represents and warrants to CITY 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, as deemed necessary for the operation of the Center. CONTRACTOR shall be responsible for the application and maintenance of a liquor license in accordance with all applicable regulations of the Alcohol and Beverage Control Board and local, county, state and/or federal law. At such time, that the CONTRACTOR obtains said liquor license, CONTRACTOR shall provide CITY with additional insurance coverage for such activity related to the alcohol sales at the Center and shall be responsible for obeying all requirements and limitations associated with such activity. -2- Agreeme nt for Services -Seal Beach Tennis Center 2.4 Condition of Facility. CITY makes no representation as to the quality, condition or status of the Center. CONTRACTOR shall assume responsibilities of the Center and related facilities and services in an "as is" condition, without representation or warranty express or implied. 2.5 Contract Representatives. CONTRACTOR "i.e. Eric Stephens, the individual", shall serve as on -site manager, be responsible for the daily operations of the Center and be accessible at all times during the hours of operation as described in Exhibit A -Scope of Services. June Yotsuya, Assistant City Manager for the City of Seal Beach, shall act as CITY'S Contract Representative for purposes of this Agreement, and such Contract Representative shall have the right to make all decisions to be made by CITY under the Agreement (unless otherwise expressly provided herein). CITY may designate other representatives as deemed necessary in the execution of the terms set forth in this Agreement. 2.6 Accounting Records. CONTRACTOR shall maintain complete and accurate records with respect to revenues and expenses incurred in the performance of this Agreement. All such records shall be clearly identifiable as being associated with this Agreement. CONTRACTOR shall meet on a monthly basis with an authorized representative of CITY, during normal business hours, to examine, audit, and make transcripts or copies • of such records. CONTRACTOR shall allow CITY to inspect all work, data, documents, proceedings and activities related to this Agreement during the term of this Agreement (including any extensions) and for a period of one year thereafter. 2.7 Hours of Operation. CONTRACTOR shall maintain a schedule and hours of operation as identified in Exhibit A- Scope of Services and may change the hours upon prior written notification to and prior written consent of CITY at its sole and absolute discretion. 2.8 Restrictions. CONTRACTOR shall not permit any children under the age of sixteen (16) to use the fitness room, lockers, spa or sauna. 2.9 Facility Supervision and Maintenance. CONTRACTOR shall maintain staffing levels and maintenance of the Center necessary to fulfill the requirements identified in the Exhibit A- Scope of Services throughout the term of this Agreement. CONTRACTOR shall provide general supervision of all tennis courts, fitness room, locker rooms and any accessory use of the Center including the enforcement of safety practices and regulations in connection with the operation of the Center. CONTRACTOR shall exercise the right to exclude persons from using the Center who do not abide by established rules. -3- • Agnt for Services -Seal Beach Tennis Center CONTRACTOR shall use its reasonable efforts to prohibit intoxicated persons, profane or indecent language, or boisterous or loud conduct in or about the Center, maintain proper security of the Center and will call upon the aid of peace officers to assist in maintaining peaceful conditions. 2.10 Standards and Quality of Service. CITY shall have the right to establish reasonable standards of performance for CONTRACTOR and to specify the kind and quality of operation to be conducted at the Center. CITY shall deliver such standards and the kind and quality of operations in writing to CONTRACTOR by July 1, 2005. CONTRACTOR shall comply in every respect with such standards and specifications. If the CITY determines that CONTRACTOR is not complying with the standards of performance as outlined by CITY, the CITY will inform CONTRACTOR in writing of said deficiencies and allow CONTRACTOR thirty (30) days to comply. If CITY determines after such period of time that CONTRACTOR is not complying with said standards, CITY will have the right to terminate this Agreement immediately. ARTICLE III COMPENSATION 3.1 Payments. In consideration for the rights granted to CONTRACTOR under this Agreement, CONTRACTOR shall pay to CITY a base amount as set forth in Exhibit B -Fees and Payments on the first day of each month, as adjusted in accordance with the last paragraph in Section 3.1. A 10% late fee will be added to payments not paid by the 10 of same month. In addition, CONTRACTOR shall pay to CITY a percentage of gross revenues less the base amount paid monthly to CITY. The percentage shall be determined on the amount of gross revenue as set forth in Exhibit B -Fees and Payments. Gross revenue shall be defined as all cash receipts from the Center operations including pro shop, snack bar and other accessory uses, monthly and daily fees for use of courts, facility rentals and subcontractor agreements, advertising and marketing revenue and any other services for which a fee is charged that is not included in any rental or subcontractor agreement. CONTRACTOR shall provide to authorized representative of CITY a written accounting of gross revenues received each month for calculation of additional payments of percentage of gross revenue less base amount as established in Exhibit B -Fees and Payments and shall be due and payable the first day of the following month of accrual. A 10% late fee will be added for such additional payments not paid by the tenth day of same month. CONTRACTOR is entitled to retain all gross revenues beyond the payments made to the CITY under this Agreement. Monthly base amount paid to the CITY by CONTRACTOR shall be adjusted periodically as follows. Starting January 1, 2006 and January 1 of each year thereafter, "Adjustment Date ", the adjusted minimum base amount shall be equal to the greater of a) the then current minimum monthly base amount, or b) ninety percent (90 %) of the average of monthly payments (i.e. (1) the minimum monthly base amount plus (2) the applicable monthly percentage of gross revenues minus the base amount paid by CONTRACTOR during the year immediately preceding the Adjustment Date.) 3.2 Capital Improvement and Equipment Fund. If CONTRACTOR elects to contribute towards capital improvements and/or equipment for the Center, such as the purchase of exercise equipment, kitchen upgrades, etc., the CITY shall use up to the -4- Ant for Services -Seal Beach Tennis Center amount of funds paid to CITY under this Agreement to match investment by CONTRACTOR. Expenditures from said fund shall be made upon the recommendation of CONTRACTOR subject to the prior written consent of CITY in its sole and absolute discretion. Any purchases from said fund shall become the property of the CITY upon expiration or early termination of this Agreement. 3.3 Non- Tennis Related Use of Center Clubhouse. The CITY retains the right to use the Center clubhouse for community purposes at no charge to CITY up to six times per year provided the CITY notifies the CONTRACTOR no less than four weeks in advance. If CONTRACTOR can provide verification of a conflict with a previously scheduled event within one week after the CITY gives notification, CITY shall select another date and time that is not in conflict with such prescheduled event. CONTRACTOR may rent the Center clubhouse for non - tennis related activities subject to prior written notification to and prior written consent of City in its sole and absolute discretion. 3.4 Notices. All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U.S. Mail postage prepaid, return receipt requested to the following addresses indicated below: IF TO CITY: City of Seal Beach City Hall 211 Eighth Street Seal Beach, California 90740 Attn: June Yotsuya, Assistant City Manager TO CONTRACTOR: Eric Stephens 14957 Cerritos Avenue Bellflower, CA 90706 The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or forty -eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. ARTICLE IV INDEMNIFICATION AND INSURANCE 4.1 Indemnification. From and after the execution of this Agreement, CONTRACTOR and any subcontractors shall indemnify, defend, protect, and hold harmless the CITY and any and all agents, employees and representatives of the CITY, from and against all losses, liabilities, claims, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out of pocket litigation costs and actual attorney's fees), and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with: -5- • Ant for Services -Seal Beach Tennis Center (i) any breach or default by CONTRACTOR or any subcontractor hereunder, or (ii) any activities of CONTRACTOR (or the activities of agents, employees, representatives, licensees, guests, invitees, or subcontractors of CONTRACTOR); and except to the extent such losses or liabilities are caused solely and exclusively by the gross negligence or intentionally wrongful acts of the CITY. CONTRACTOR or any subcontractor shall defend, at its expense, including all attorneys' fees incurred in such defense, the CITY and its council members, board members, officers, agents, attorneys, consultants, independent contractors, servants and employees in any legal action based upon items (i) and (ii) above or either of them. The CITY may in its discretion, and at its own cost, participate in the defense of any such legal action. The provisions of this Section shall survive the expiration and any earlier termination of this Agreement. 4.2 Insurance. Insurance requirements for CONTRACTOR or any subcontractor under this Agreement are provided are set forth in Exhibit C- Insurance Provisions. ARTICLE V TERMINATION OR BREACH OF CONTRACT 5.1 Termination; Breach of Contract In the event of a default by CONTRACTOR under the Agreement, the CITY shall provide written notice of the alleged default and CONTRACTOR shall have thirty (30) days after CITY gives such notice in which to cure the default by rendering a satisfactory performance. In the event CONTRACTOR fails to cure the default within said time, the CITY shall have the right to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. CONTRACTOR shall discontinue all services affected by such termination immediately, unless otherwise instructed by CITY in writing. 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. 5.2 Severability. If one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable, under any duly promulgated and applicable law, order or regulation, the validity and enforceability of the remaining provisions contained herein shall not be in any way affected, impaired, prejudiced or disturbed as a result. 5.3 Property Rights. CONTRACTOR shall retain all rights to title and interest to personal property purchased and provided by CONTRACTOR during the term of this Agreement excluding any property purchased under Section 3.2. CITY shall retain title and interest to all equipment and physical improvements provided by CITY before and during the term of this Agreement. -6- • AgOnt for Services -Seal Beach Tennis Center ARTICLE VI GENERAL PROVISIONS 6.1 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 agreement whether verbal or written, concerning the same subject matter. This Agreement may be modified only in writing signed by both parties. 6.2 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. This Agreement may not be sold, transferred or assigned by either party, or by operation of law, to any other person or persons or business entity, without the other party's written permission. Any such transfer or assignment, or attempted transfer or assignment without written permission, may be deemed by the other party to constitute a voluntary termination of this Agreement and this Agreement shall thereafter be deemed terminated and void. 6.3 Subcontractors. CONTRACTOR shall -not subcontract any portion of the work required by this Agreement without prior consent of CITY. CONTRACTOR shall have a written agreement or contract with all subcontractors. Such written agreement or contract shall contain an express assumption by the subcontractor of all conditions and terms and covenants contained in this Agreement. It shall be the responsibility of the CONTRACTOR to ensure that all subcontractors conform to fingerprinting and insurance requirements of the CITY. 6.4 Equal Opportunity Employment. CONTRACTOR represents that it is an equal opportunity employer and shall not discriminate either directly or indirectly against a subcontractor, or an employee or applicant for employment with CONTRACTOR because of race, color, religion, national origin, ancestry, sexual preference, sex or age. 6.5 Attorneys' Fees. • If either party commences a legal action against the other party arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover actual attorneys' fees and costs of suits. 6.6 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Any action to enforce the terms of this Agreement or for the breach thereof shall be brought and tried in the County of Orange. 6.7 Time of Essence. Time is of the essence for each provision of this Agreement. -7- • Ant for Services -Seal Beach Tennis Center 6.8 Conflict of Interest. CONTRACTOR covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. CONTRACTOR further covenants that in the performance of this Agreement, CONTRACTOR shall not employ any person having any such conflict of interest. 6.9 Statement of Economic Interest. If CITY determines CONTRACTOR meets the definition of local code filer under the Political Reform Act (Government Code §87100 et. Seq.), the following shall apply. CONTRACTOR shall complete and file and shall require any other person doing work under this Agreement, to complete and file a "Statement of Economic Interest" with the City Clerk of the CITY disclosing CONTRACTOR and/or such other person's financial interests. 6.10 Performance Bond Requirement. CONTRACTOR will, at or before the execution of the resulting Agreement, furnish to the CITY an acceptable corporate surety bond in the sum of five thousand dollars ($5,000.00), or equivalent security, as security for faithful performance and non - negligent performance of the Agreement. The bond shall be in force at all times during the term of the Agreement. 6.11 Pollution Prevention Requirements. CONTRACTOR acknowledges the Santa Ana and San Diego Regional Water Quality Control Boards (RWQCB) have issued permits which govern storm water and non -storm water discharges resulting from municipal activities performed by or for the County of Orange, Orange County Flood Control District and incorporated cities of Orange County (collectively referred to as Permittees). The RWQCB Permits are National Pollutant Discharge Elimination System (NPDES) Permits Nos.R8 -2002- 0001, and R9- 2002 -0001, respectively. Copies of the RWQCB Permits are available from the CITY for review. In order to comply with the Permit requirements, the Permittees have developed Drainage Area Management Plan (DAMP) that contains Model Maintenance Procedures with Best Management Practices (BMPs) - that parties leasing municipal owned properties must follow. These Model Maintenance Procedures contain pollution prevention and source control techniques to minimize the impact of those activities upon dry - weather urban runoff, storm water runoff and receiving water quality. Activities performed at the Center that is subject to this Agreement shall conform to the Permits, the DAMP and the Model Maintenance Procedures and must be performed in accordance with all applicable Model Maintenance Procedures. CONTRACTOR shall maintain copies of the Model Maintenance Procedures at the Center throughout the duration of the Agreement. Evaluation of activities subject to DAMP requirements performed at the Center under this Agreement will be conducted by CITY to verify compliance' with DAMP requirements. The CITY may require CONTRACTOR to conduct self - evaluation as determined by CITY. -8- • Agnt for Services -Seal Beach Tennis Center 6.12 Utilities. CONTRACTOR shall be responsible for electricity, gas, and telephone expenses. The CITY will furnish a monthly statement of charges for electricity and gas to CONTRACTOR that is due immediately upon receipt. CONTRACTOR shall be responsible for establishing telephone service to the Center. The CITY will be responsible for providing water, sewer and refuse, landscaping and janitorial services. 6.13 Fees. Initial fees are provided in Exhibit B -Fees and Payments. CONTRACTOR shall have the right to increase and add additional fees upon prior written notification to and prior written consent of CITY in its sole and absolute discretion. 6.14 Records and Audits. CONTRACTOR shall keep the books of accounts and records of all operations and establish a system of bookkeeping and accounts in a manner considered to be good accounting practice and satisfactory to the CITY. CONTRACTOR shall permit inspection of said books and records by the CITY as often as deemed necessary in the opinion of the CITY. CONTRACTOR shall submit at the end of each calendar year a certified, audited annual report, or as required by the CITY, a profit and loss statement of operations under the terms of the this Agreement, in a form considered to be good accounting practice and satisfactory to the 6.15 Force Majeure. Neither the CITY nor CONTRACTOR shall be deemed in breach of any contract if it is prevented from performing any of the obligations hereunder by reason of Acts of God, acts of the public enemy, acts of superior governmental authority, strikes or labor disputes, floods, riots, rebellion, sabotage, or any similar other circumstances not within its reasonable control. 6.16 No Waiver of Breach; Time. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought referring expressly to this Paragraph. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 6.17 Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to create, and the parties do not intend to create, any rights in third parties. 6.18 Compliance With Law. CONTRACTOR shall comply with applicable federal, state and local laws, rules and regulations affecting the CONTRACTOR and his/her work hereunder. -9- • Aglint for Services -Seal Beach Tennis Center 6.19 Validity. The validity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provisions of this Agreement. 6.19 Headings. Section and subsection headings are not to be considered part of this Agreement, are included solely for convenience, and are not intended to modify or explain or to be a full or accurate description of the content thereof. 6.20 Counterparts. This Agreement may be executed by in one or more counterparts by the parties hereto. All counterparts shall be construed together and shall constitute one Agreement. 6.21 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with the respect to the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the date and year first above written. ATTEST: APPROVED AS TO FORM: 11 .z•—, AkIA p"), Ci Clerk City Attorney CI BEAC C' anager Date ERIC STEPHENS, an independent contractor: • 4i# /� O Contractor Date -10- • Agreeme. Services -Seal Beach Tennis Center EXHIBIT A Scope of Services CONTRACTOR shall manage and operate the Seal Beach Tennis Center during the term of this Agreement, including the following operations: Snack bar Fitness room Lockers and Spa areas Clubhouse Pro Shop Tennis Instruction Tennis Court Rentals The basic service obligations of CONTRACTOR shall include the following: a) Enforcement of all rules and regulations. b) Regulation of play and conduct of players. c) Policing of the Center, preserving order and providing for security of the Center, and preventing injury to the Center by players and others. d) Keeping the Center open for number of hours and days as designated in this Agreement. e) Inspection and general upkeep of the Center and notification to City of any problems with its landscaping and janitorial contracts. fj Maintenance of tennis courts, with regular cleaning and sweeping of the same. g) Repairing and replacing any nets as required, in order to maintain tennis courts in good playing condition. h) Providing private and/or group lessons and instructions in tennis and all services customarily provided by a tennis professional, either by contractor personally or by qualified employees or subcontractors. i) Scheduling tournaments and other tennis activities with special interest groups, private groups, tennis clubs and/or school interests to assure the best overall, well - rounded tennis program for the community while incorporating public play and use of facilities in the overall program. Agreemege Services -Seal Beach Tennis Center j) Operating, managing and supervising the pro shop that includes, but is not limited to, maintaining, selling and renting a stock of merchandise, supplies and equipment to meet customer demand and suitable for use at the facility. Operating, managing and supervising a snack bar at the Center. Contractor shall purchase inventory for pro shop and snack bar. k) Maintaining and operating a business for the repair of tennis rackets and other tennis related equipment. 1) Providing for use of clubhouse including potential food service or catering as permitted by County of Orange Health Department. m) Contractor shall provide for the background checks and fingerprinting of all employees that contract for or provide services such as tennis instruction, etc. to any person under the age of 18 and shall require same from any subcontractors prior to use of the Center. n) Operate and maintain recreational and competitive tennis programs such as but not limited to the following: singles and doubles nights, recreation and competitive ladders, age and/or gender - specific activities, instructional clinics and academies, special events, etc. o) Operate and manage 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. p) Center rental rates and tournament participation rates will be based on prevailing rates for other public and private facilities in the Orange County area determined by Contractor and under sole and absolute discretion of City. q) Establish a specific rental rate structure for monthly and daily use of courts. r) Development of outreach, promotional and advertising efforts subject to City approval. s) Subject to City approval, Contractor shall create a method of collection of program participant and facility user satisfaction and evaluation information for the purpose of review by City and Contractor. t) During course of operation, Contractor shall be responsible for maintaining and keeping of all interiors of buildings including restrooms, furnishings and fixtures in good and sanitary condition. u) Contractor shall keep the facilities and tennis courts clear of trash and debris. • Agreeme Services -Seal Beach Tennis Center v) Any modifications and additions to the Center shall have the written approval of the City representative before any implementation by Contractor. w) Contractor shall provide and maintain all court cleaning equipment, empty trash receptacles on individual courts and place trash bins in suitable locations for City's refuse services. x) Contractor shall be responsible for contractual agreements with subcontractors and rental parties and shall assume responsibility for ensuring such agreements meet the requirements of indemnity, insurance and operation as defined in this Agreement. y) Contractor has initially established the following hours of operation and may be changed by Contractor subject to notification and approval of the City in its sole and absolute discretion. Monday through Friday 7:00 a.m. to 10:00 p.m. Saturday 7:00 a.m. to 9:00 p.m. Sunday 8:00 a.m. to 7:00 p.m. Closed on Thanksgiving Day, Christmas Day, New Year's Day Closed early at 3:00 p.m. on Christmas Eve and New Year's Eve. • AgreemelServices -Seal Beach Tennis Center EXHIBIT B Fees and Payments Fees that may be charged to users of the Center: Contractor has established the following initial fee schedule: Monthly Center Fee $105 (includes monthly use of courts, lockers and fitness room) Daily Court Fee $8 per person Payments by Contractor to City: The following payment schedule shall apply: Base amount paid to City: $1500 monthly = $18,000 annually Additional monthly payment to City: Percentage of gross revenues (based on the following schedule) minus base amount: Monthly gross revenue Applicable monthly percentage $15,000 up to $20,000 8% $20,001 up to $25,000 9% $25,001 and above 10% • Agreeme• Services -Seal Beach Tennis Center EXHIBIT C Insurance Provisions During the term of this Agreement, Contractor shall maintain in full force and effect, at its own cost and expense, the following minimum insurance coverage: Contractor shall be responsible for providing proof of appropriate liability insurance coverage identified, at a minimum, below: a) Contractor shall and will, during period of any Agreement with the City, provide and maintain in such form and with a company or companies satisfactory to City, a policy or policies in conformance with the requirements set forth below. Contractor shall acknowledge that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to the City in excess of the limit and coverage required in an Agreement and which is applicable to a given loss, will be made available to the City. b) Contractor shall indemnify and hold harmless the City of Seal Beach, its officers, employees and agents, from and against any and all claims, demands, orders, decrees or judgments for injury or death or damage to person or Center, loss damage and liability (including all costs and attorneys' fees incurred in defending any claim, demand or cause of action), occasioned by, growing out of, or arising or resulting from any act or omission on the part of contractor, or his agents or employees, arising or resulting from the performance of any services required herein to be performed by contractor or arising from the use of the facilities, -- tennis courts or pro shop by contractor, or his agents or employees, or arising from the use of any buildings or improvements thereon or therein by any person • or persons, or arising out of the operation or maintenance of dangerous or defective condition of any structure, facility or thing erected or placed on Center and under the control or supervision of contractor. 1) Commercial General Liability Insurance using Insurance Services Office Commercial General Liability policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate. 2) Workers Compensation on a state - approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident for all covered losses. • Agreeme. Services -Seal Beach Tennis Center 3) Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than $1,000,000 per accident, combined single limit. If contractor owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. If contractor or contractor's employees will use personal autos in any way during term of Agreement, contractor shall provide evidence of personal auto liability coverage for each person. 4) Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverage. Any such coverage provided under an umbrella liability policy shall include a drop down provision with a maximum $25,000 self - insured retention for liability not covered by primary, but costs payable in addition to policy limits. There shall be no cross liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to city for injury to employees of contractor, subcontractors or others involved in the work. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. 5) A contractual liability endorsement shall be included in each insurance policy, extending coverage to include the liability assumed under (1) above. 6) If necessary, a products liability endorsement shall be added to each insurance policy in the amount of Ten Thousand Dollars ($10,000.00) for each person and Twenty Thousand Dollars ($20,000.00) on account of any one occurrence. c) Any policy of insurance required of contractor shall also contain an endorsement providing that thirty (30) days' notice must be given in writing to the City, of any pending change in the liability or of any cancellation or modification of the policy. d) Contractor shall fill out and forward to the City an accident report on any injury that takes place in and around the Center within twenty -four (24) hours. e) Contractor shall be required to comply with State of California OSHA regulations. Section 3203 of Title 8 in the California Code of Regulations requires all California employees to have a written, effective Injury and Illness Prevention Program (IIPP) that addresses hazards pertaining to the particular workplace covered by the program. 1 p AgreemE. Services -Seal Beach Tennis Center f) Contractor shall be responsible for any other insurance necessary for work performed under this Agreement and to require that all subcontracts, rentals and other contractual arrangements made by the Contractor under this Agreement comply with applicable indemnity and insurance requirements set forth hereunder.