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Resolution 018-2012 Agreement RESOLUTION NO. 18-2012 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PALM BEACH, PALM BEACH COUNTY, FLORIDA, APPROVING THE RENEWAL OF THE CONCESSION AGREEMENT FOR THE TOWN OF PALM BEACH TENNIS FACILITIES BETWEEN THE TOWN OF PALM BEACH AND NETRESULTS TENNIS, LLC AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THE SAME ON BEHALF OF THE TOWN. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PALM BEACH, PALM BEACH COUNTY, FLORIDA, as follows: Section 1: The Concession Agreement for the Town of Palm Beach Tennis Facilities between the Town of Palm Beach and NetResults Tennis,LLC, attached hereto as Exhibit"A" and incorporated by reference as a part of this resolution, is hereby renewed with the following changes. Section 2: NetResults Tennis, LLC will be compensated in the following manner for tennis instruction and related services, including lessons, clinics, camps, or other such teaching services. These compensation rates will also apply to the sale of tennis related merchandise, stringing services,tournaments and events,other than those conducted by Town staff, or any other agreed upon service or goods. ® 89% of the first$100,000 of gross revenues ® 86% of the second $100,000 of gross revenues ® 84% of the third$100,000 (and above) of gross revenues The contractor will also pay the Town an administrative fee of $13,200 (thirteen thousand two-hundred dollars) in 12 monthly installments of$1,100. Section 3: The Town Manager is authorized to execute the same on behalf of the Town. Page 1 of 2 PASSED AND ADOPTED in a regular, adjourned session of the Town Council of the Town of Palm Beach assembled this 10th day of April, 2012. 0"" I e y� 'e it Coniglio, . ay or David A. Rosow, Town Council President a r ' Robert 'ldrick, Tow uncil President Pro Tem i - i Williarr�J. iamo , ouncil Member ATTEST: Richard M. Kleid, Town Council Member Susan O s'Town Clerk Michae J. Pucillo T64 Council Member Resolution No. 18-2012 Page 2 of 2 David Macburnie Subject: NETRESULTS/Palm Beach Contract Extension W ... U ftl Vm"'W at-ookllrre"s A4unlolpnl&Peclalists Dear Mr Boodheshwar, The purpose of this letter is to inform you and the town of palm Reach that NETRESULTS Tennis Management of Wellelesly Wills, MA would very much like to continue our contractual arrangement to provide the tennis services at bath Seaview park Tennis Center and the Phipps Ocean Park Tennis Center.We have accomplished a significant amount of our initial goals.We have converted the lesson culture into a vibrant and thriving group program that has become the staple of Palm Reach Tennis. NETRESULTS has brought a significant amount of professionalism and customer service to a community that has come to expect only the best. We would like to discuss further the opportunity to extend the contract to another 3 year term,allowing both parties to continue to feel the commitment to make palm Reach Tennis the destination in South Florida. Reap ly, •..may David MacBurnie David MaCBurnie, USPTA NETRESULTS Tennis PO Box 81313 Wellesley Hills, MA 07.481. netresultstennis.net paimbeachtennisms tampatennis,net ri =z. ... €.... ......'s ►: i i CQ ICE, SIGN AGREEMENT FOR THE TOWN OF PALM BEACH TENNIS FACILITIES THIS AGREEMENT made and entered into this 2-1Pday of A04"41'4 2009,by and between the TOWN OF PALM BEACH, hereinafter referred to as "Town" and NETRESULTS Tennis,LLC,hereinafter referred to as the"Contractor". WITNESSETH: WHEREAS,the Town owns and operates tennis facilities at Scaview Park and Phipps Ocean Park,both situated within the Town of balm Beach and WHEREAS, the Town and Contractor desire an agreement wherein and whereby the Contractor shall. have the concession for tennis teaching services, merchandise sales and equipment rental upon the terms and conditions hereinafter set forth,to wit: 1. TERM OF AGREEMENT The initial term of this agreement shall be in effect beginning June 1, 2009, and terminating May 31,2012,unless terminated sooner as hereinafter set forth. Upon expiration of the initial term, this agreement shall be automatically renewed on our annual basis unless terminated or modified by either party through written notice to the other as hereinafter set forth. 11. SCOPE OF SERVICES.. 1. The head tennis professional on site will be Mr, Dejan Minic as specified by the Contractor. Mr. Minis shall be required to be actively involved in tennis teaching services on court for a minimum of 20 hours per week, unless on vacation or sick leave. Should the performance of Mr. Minis be deemed as less than satisfactory at any time during the agreement period, the Town shall have the right to request a replacement Bead tennis professional from the Contractor. The Contractor shall be responsible for providing a suitable replacement for the vacated position within 30 days of notification,The replacement most be approved by the Director of Recreation. In the event that the suggested replacement head professional provided by the Contractor is not deemed acceptable by the Director of Recreation this contract agreement between the Town and Contractor shall be considered terminated. 2. Contractor shall have the sole concession for all tennis related teaching services on Town tennis facilities. Contractor shall also provide a quality line of tennis related merchandise, including clothing with appropriate tennis facility logo in the pro shops. The types of items rented and sold under these concessions shall be tennis related, Limited pre-packaged frozen ice cream and nutritional bars may also be sold. Contractor shall also provide racket stringing and other tennis related services. Contractor shall be fully responsible for the payment and maintenance of all insurance and applicable taxes related to these concessions as required by the legal obligations of an independent contractor. Page 1 of 7 3. Contractor shall have exclusive use of two courts at each facility for teaching purposes. (Teaching restrictions will apply during morning hours in peak season months during league matches and special events.) Additional courts may be available to the Contractor following approved booking procedures for non pre reserved courts on a daily basis. The junior tennis prograrrr is primarily conducted at the Seaview facility and may use up to 5 courts between the hours of 3130 to 6:00,Monday through Friday as dictated by program demand, Contractor shall use these assigned courts to provide teaching services through lessons, clinics, camps and social activities as part. of a comprehensive year round tennis program intended to increase rosident participation and develop a dynamic and progressive junior tennis program. Agreed upon client registration forms and information sheets shall be used for the provision of teaching services.Additional courts may be available for new program use(i.e. cardio tennis). Q. Contractor shall assist facility supervisors with seeding and other tasks related with the coordination of competitive town tournaments, and coordination of league play and activities. S. Contractor shall be responsible for the hiring, training, and payment of all tennis teaching staff performing services on Town facilities as subcontractors reporting directly to the Contractor. 6, If in the course of the duties,operations and services under this Agreement,in the event the Contractor or their agent, representative, employee or sub-contractor becomes aware or should become aware of any dangerous condition(s)in or on the premises or equipment, Contractor or their agent,.representative, employcc or subcontractor shall immediately take appropriate action and cease activities,so as not to endanger persons or property, 7. The Contractor shall be responsible for notifying the Town of any maintenance related concerns that do not meet or satisfy the standards adopted and/or applied by the USTA. 8, The Contractor is an independent contractor who will be responsible for payment of federal withholding tax and social security contributions. Furthermore, the Contractor shall not be entitled to any fringe benefits normally provided Town employees such as worker's compensation insurance coverage, unemployment compensation, retirement, disability leave,and any leave with pay. llT. CONTRACTUAL, R l?ONSI�TI ITIIrS CONTRACTOR shall be responsible for the following: 1, The Contractor shall report to and direct all correspondence acid daily business through the Assistant Director of Recreation, 2. Contractor agrees to perform a reference check on all tennis instructors prior to their starting work on Town property. This reference check shall be completed in written Page 2 of 7 form with a copy of same submitted to the Town of palm Beach Recreation Department Administrative Office. All tennis instructors employed by the Contractor shall have a background check performed by the Town prior to starting work on Town property. Cost of these background checks shall be borne by the Contractor. Contractor is required to have a written employment agreement in place with all tennis instructors prior to teaching. 3. In conjunction with all of the concession related responsibilities,the Contractor hereby agrees to maintain a good credit rating with all suppliers, manufacturers and others as well as to compensate all personnel under the Contractor's employment in a timely manner so as not to discredit the,reputation of the Tennis Program, the Palm Beach Recreation Department or the Town of Palma Beach. 4. Contractor may set fees for all instructional services and merchandise. Nees must be approved by the Recreation Director and be competitive within the local municipal market, S. The Contractor shall provide daily teaching logs to the Town, including availability of all teaching staff for the purposes of booking lessons and tracking services rendered. Daily logs should accurately reflect lessons,clinics or other teaching services provided on the Town courts. 6. The Contractor shall be responsible for the reconciliation of daily teaching logs to a Town provided revenue report to insure the accurate tracking of, and payment to, all subcontracted teaching professionals under it's employment for any toaching services they may render. Contractor shall be responsible for the tracking and payment of any monies due it's subcontracted employees. 7. The Contractor shall provide a financial report on a biweekly basis,following receipt of a revenue summary from the Town, such that a reconciliation may be made prior to the Contractor receiving a biweekly concession payment from the Town. S. The Contractor shall provide all necessary supplies that are required as part of the program or activity being planned.This shall include,but not be limited to,tennis balls, hoppers,tubes,rackets or other training aids. 9. Contractor shall provide statistical information on participants in all Contractor provided programs and activities. Statistics to be provided shall include, but not be limited to, resident/non-resident status, gender, adult/junior status or other information as requested. TOWN shall be responsible for the following: 1. Town shall collect and process all foes for goods and services provided by the Contractor. No monies shall be, paid directly by customers to the Contractor or it's subcontracted employees for services rendered. Page 3 of 7 2. Town shall provide a revenue summary to the Contractor on a biweekly basks, on approximately the 5th slid 201h day of each month. The summary will include documentation of all monies collected for Contractor provided services and goods on a daily basis. 3. Town shall provide all. administrative, clerical, and customer service assistance necessary for the day to day operation of the tennis facilities. Town staff shall be assigned to each pro shop dmring scheduled hours of operation. 4. Town staff shall be responsible for all maintenance related to the tennis courts and related amenities, Town staff`assigned to the pro shops shall perform.evening brushing and lining of courts. 5. Town shall provide any forms necessary for daily operations and Contractor payments for services. b. Town shall maintain a daily log of Contractor related revenues collected including, but not limited to, such statistical data as receipt number, date, type of service, and staff initials. 1V. COMPENSATION PACKAGE. 1. Contractor shall be paid for concession related services on a biweekly basis. Payment shall be provided by the Town on or before the 1 S'h and last day of each month for the two week period prior. Contractor shall be paid according to the following compensation package: m Tennis instruction and related services, including lessons, clinics, camps, or other such teaching services. 90%of the first$100,000 of gross revenues 87%of the second$100,000 of gross revenues 85%of the third$100,000 of gross revenues # Sales of tennis related merchandise, stringing services, tournaments and events other than those conducted by Town staff, or any other mutually agreed upon service or goods, 90%of the first$100,000 of gross revenues 87%of the second$100,000 of gross revenues 85%of the third$100,000 of gross revenues 2. Contractor shall pay the Town an administrative fee of $12,000 (twelve thousand dollars) to be paid in 12 equal monthly installments of$1,000. Checks shall be made payable to the Town of Palm Beach and shall be submitted to the Town on or before the 1st of each month. V. INSURANCE AND INDEMNIFICATION,, The Contractor shall obtain and maintain in force at all times during. the tern of this Page 4 of 7 Agreement, insurance coverage pertaining to Public Liability, Property Damage and Workers Compensation in the following types and amounts: Workers'Cotnvensation and Employers'Liability: This insurance shall be written, when applicable, in accordance with the laws of the State of Florida for all employees of the Contractor engaged in work under this contract. Workers' Compensation limits shall be Statutory. Employers' Liability limits shall not be less than $100,000 per occurrence and shall be written only by insurance companies duly authorized and licensed to conduct business in the State of Florida. Comprehensive General Liab'hW This insurance shall be written in comprehensive form and shall protect against all claims arising from irR uries to persons or damage to property of the Town of Palm Beach or others arising out of any concession related act or omission of the Tennis Professional, his agents, employees, or sub-contractors. This policy shall also include protection against claims for usual personal injury liability coverage, an endorsement. to include the contractual liability assumed under this Agreement, and Completed Operations/Products Liability coverage for the concession related operations. The limits of liability shall not be less than $500,000 per occurrence and shall be written only by insurance companies duly authorized and licensed to conduct business in the State of Florida. Re, .it dEnd„orsements/Provisjons,. The Town of Palm Beach shall be listed as an Additional Insured on.all applicable policies, Violation by the Contractor of any terms or conditions of the policy shall not invalidate the policy or reduce any coverages for the Town of Palm Beach, All required insurance policies shall provide a waiver of subrogation and rights of recovery against the Town of Palm Beach, and insurers shall agree that they shall have no recourse against the Town of Palm Beach for payment or assessments in any form on any policy of insurance. Policy cancellation, non-renewal or reduction of coverage shall not be effective until after the Town of Palm Beach has received thirty(30)days advanced notice by certified mail sent to the attention of the Risk Manager. An original Certificate of Insurance, evidencing that the insurance ooverage(s) have been procured in. the types and amounts required by this Agreement, shall be forwarded to the Risk Manager for review and approval prior to the Tennis Professional performing any operations or other activity under the terms of this Agreement. A "true and certified" copy of the applicable policies trust also be provided for review and approval within forty-five(45)days of the effective date of this Agreement, Contractor agrees to protect, defend, indemnify, and hold harmless the Town of Palm Beach, its agents, employees,acid representatives,from any and all claims said liabilities including attorney's fees and court casts, including appeals, for which the Town of Palm Beach, its employees and representatives call or tray be field liable as a result of injury (including death)to persons or damage to property occurring by reason of any acts or omissions of the Contractor, its employees,agents or sub-contractors,arising out of or in connection with this Agreement. The Contractor shall not be required to indemnify the Town of Patin Beach or its agents, Page 5 of 7 employees, or representatives, when an occurrence results solely from the wrongfihl acts or omissions of the Town of Palm Beach,or its agents,employees or representatives. Nothing contained herein is intended nor shall be construed to waive the Town of Palm Beach's rights and immunities under the common law or Florida Statute 768.28, Compliance with the foregoing requirements shall not relieve the Contractor of liability and obligation hinder this Section or under any Section of the Agreement, No changes to these insurance amounts may be made without a written agreement between the parties, The Contractor will name the Town as an additional insured (hereinafter "Named Insured"), The insurance companies shall endorse the policies to state that the Named Insured is not liable for the payment of any premiums or assessments. A copy of the.endorsements naming the Named Insured must be submitted to the Town prior to commencement of the service heremider. All policies shall be specifically endorsed to provide that the coverage obtained by virtue of the Agreement between the Town and the Contractor will be primary and that any insurance carried by the Town and the Contractor shall be excess and non-oontributory. All policies shall be specifically endorsed to provide that such coverage shall not be cancelled or materially changed without at least thirty (30) days prior written notice to the Town and the Contractor. Tlne Contractor shall deliver to the Town the original, signed Certificates of Insurance which evidence the required coverage prior to commencing operations. The Conb•actor's liability insurance coverage shall extend to and include the following contractual indemnity and hold harmless agreement: Contractor shall indemnify,hold harmless and defend at its sole cost the Town.of Patin Beach and any other person or entity that becomes a Named Insured,as outlined herein, their respective officers,agents,and employees,against and assume all liability for any and all claims, suites, actions, damages, liabilities, expenditures, or causes of action of any kind arising from the services authorized in this Agreement and resulting or occurring from any alleged negligence, act omission or error of the Contractor, its agents or employees and/or arising from the failure of the Contractor, its agents, or employees to comply with each and every requirement of this Agreement or with any Town, county, state, or federal law or regulation applicable to the service provided resulting in or relating to bodily injury, loss of life or limb, or damage to property sustained by any person,firm,corporation,or other business entity, The foregoing indemnity agreement shall apply to any and all claims and suits other than claims and suits arising out of the sole and exclusive negligence of the Named Insured, their officers, agents, and employees as determined by a court competent jurisdiction. The Contractor shall obtain and maintain contractual liability insurance in adequate limits for the sole purpose of protecting the 'Down and the Named Insured under the hold harmless agreenhent frorn any and all claims arising out of the operations authorized by this Agreement. Insurance coverage required by this Agreement shall be in force throughout the Agreement terra. Should the Contractor fail to provide acceptable evidence of current insurance within Page 6 of 7 seven (7) days of receipt of written notice at any time during the term of the Agreement, the Town shall have the right to consider the Agreement breached and shall have the right to immediately terminate the Agreement. The Contractor shall understand and agree that the inclusion of more than one insured ruder these required policies shall not restrict the coverage provided by these policies•for one insured hereunder with respect to liability claim or suit by 00 her insured hereunder or any employee of such other insured and that with respect to claims against any insured hereunder, other insured hereunder shall be considered members of the public; but the provision of this Cross Liability Clause shall apply only with respect to liability arising out of dye ownership, maintenance, use occupancy, or repair of such portions of the premises insured hereunder as are not reserved for the exclusive use of occupancy of the insured against whom claim.is 3nade or suit is tiled. VI. TERMINATION I. Termination for Cause This agreement may be terminated for good cause shown prior to the expiration date of this Agreement. Good cause shall be based upon violation of the terms of this Agreement,or policies and procedures of the Town or the Recreation Department. 1 Termination without CA Either party may terminate this agreement without cause upon 60 days notice in writing to the other party to the Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year herein above set:forth. RECOMMEND APPROVAL; TOWN OF PALM BEACH S 5" 2009 .iay'Boodheshwar,Nrvibr of Recreation Peter B. Elwell,Town Manager "TO N" ATTEST: J xa Cu gh n, own Clerk David MacBurnie "CONTRAC'T'OR" Approved o gal F rtxr and Sufficiency i ohn C. Randolph,Town Attorney Page 7 of 7 i