DRAFT SERVICES AGREEMENT BETWEEN THE CITY OF SUNNYVALE AND
CALIFORNIA SPORTS CENTER TO PROVIDE RECREATIONAL
GYMNASTICS INSTRUCTION SERVICES AND CAMP PROGRAMS
THIS AGREEMENT, dated ______________________, is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY"), and CALIFORNIA SPORTS CENTER (“CONTRACTOR"), a corporation.
WHEREAS, the CITY issued a Request for Proposals (RFP) F23-113; WHEREAS, CONTRACTOR submitted a proposal on June 15, 2023; WHEREAS, the CITY is in need of recreational gymnastics instruction services; and WHEREAS, in reliance upon CONTRACTOR’s representations regarding its qualifications, CITY finds that CONTRACTOR has the skill and ability to provide the required services;
NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.
1. Scope of Services
CONTRACTOR shall provide services in accordance with Exhibit "A" attached and incorporated by reference (the “Services”). CONTRACTOR shall determine the method, details and means of performing the services.
2. Time for Performance
The term of this Agreement shall be two years, commencing on Jan. 1st, 2024 and continuing through Dec. 31, 2026, unless otherwise terminated. Agreement may be extended for four additional one-year periods at the option of the CITY. CONTRACTOR shall deliver the agreed upon services to CITY as specified in Exhibit "A".
3. Duties of CITY
CITY shall provide a facility within which CONTRACTOR shall perform the Services, include a listing provided by Contractor for each of CONTRACTOR’s classes and camps in each Sunnyvale Recreation Activity Guide published during the term of this Agreement, and provide class and camp registration services.
4. Compensation
CITY agrees to pay CONTRACTOR as full compensation for the services rendered pursuant to this Agreement, the amounts set forth in Exhibit "A".
5. Conflict of Interest
CONTRACTOR shall avoid all conflicts of interest, or appearance of conflict, in performing the services and agrees to immediately notify CITY of any facts that may give rise to a conflict Attachment 1
of interest. CONTRACTOR is aware of the prohibition that no officer of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement CONTRACTOR shall not accept employment or an obligation which is inconsistent or incompatible with CONTRACTOR’S obligations under this Agreement.
6. Compliance with Laws
(a) CONTRACTOR shall not discriminate against any participant, student, employee or applicant for employment under this Agreement because of race, religion, creed, color, gender, age, disability, national origin or any other basis to the extent prohibited by federal, state or local law.
(b) During the term of this Agreement CONTRACTOR shall comply with all applicable federal, state and local laws and regulations relating to the provision of the Services.
CONTRACTOR shall also comply with all City policies, including but not limited to the Library and Community Services Division Contractor Handbook, unless, taking into consideration all of the surrounding facts and circumstances, a policy or policies or a portion of a policy does not reasonably apply to CONTRACTOR.
CONTRACTOR shall provide the Services in a manner that complies with the Americans with Disabilities Act (ADA) including but not limited to Title II's program access requirements, and all other applicable federal, state and local disability rights legislation. CONTRACTOR hereby acknowledges and agrees that it accepts all risks and responsibilities for its failure to comply with any law, regulation, or applicable policy and shall indemnify City under the provisions of section 10 (Indemnification) of this Agreement for all liability, loss, damage and expense (including reasonable attorneys’ fees) resulting from or arising out of CONTRACTOR’s failure to comply with such laws, regulations or policies.
7. Background Checks (boxes not checked do not apply to this agreement):
Individual Contractors: CONTRACTOR authorizes CITY to conduct a criminal background check of CONTRACTOR including fingerprints and subsequent arrest notification.
CONTRACTOR shall cooperate with the procedures established by City for such background checks and understands and agrees that he/she shall not be permitted to provide service if he/she has been a violation or attempted violation of any offense specified in Penal Code 11105.3 or Public Resources Code 5164.
☒ Business Entities/Contractors with Employees: CONTRACTOR shall not permit any employee to provide services to CITY under this Agreement until such employee has undergone criminal background screening through the California Department of Justice as provided in Penal Code 11105.3. No person who has been convicted of a violation or attempted violation of any offense specified in Penal Code 11105.3 or Public Resources Code 5164 shall be permitted to provide services to CITY under this Agreement.
CONTRACTOR shall provide CITY, upon request, a current list of all employees or other persons acting on CONTRACTOR’s behalf. Notwithstanding the restrictions on sharing and destroying criminal background check information, CONTRACTOR, upon demand, shall make available to CITY evidence of a successful criminal background check clearance and enrollment in subsequent arrest notice service, as provided, for each owner, operator, and employee.
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8. Tuberculosis Testing Requirement
CONTRACTOR shall comply with all applicable federal, state, land local regulations, ordinances, policies, and procedures regarding employee health and safety. Contractor shall ensure that no person paid or unpaid by Contractor shall be permitted to provide services requiring contact with children unless CONTRACTOR has complied with the TB testing requirements set forth in Section 5163 of the California Public Resources Code, verifying that the person or persons has provided evidence/verification of a negative TB skin test reading less than 2 (two) years old (if newly hired) or within 4 (four) years (if current employee) of the date of execution of this Agreement.
For persons with a positive TB skin test reading, a physician’s medical clearance must be obtained prior to services being provid ed as specified above. CONTRACTOR shall keep on file each “Certificate” of clearance for the persons described above, and shall also make available a copy of each Certificate to City, if requested and allowed by law. “Certificate” means a document signed by a licensed examining physician and surgeon or a notice from a public health agency or unit of the tuberculosis association, which indicates freedom from active tuberculosis.
9. Mandated Abuse Reporting
Contractor shall ensure that no person paid or unpaid by Contractor shall be permitted to provide services requiring contact with children or dependent adults until CONTRACTOR has trained that person on mandated child or dependent adult abuse reporting laws, as applicable, and shall maintain documentat ion, signed by each staff member receiving such training.
CONTRACTOR agrees that its obligations to report incidents of abuse or neglect are in addition to, and not in lieu of, CONTRACTOR’s obligation to immediately report suspected abuse or neglect to the appropriate public authorities pursuant to applicable provisions of state law. CONTRACTOR shall maintain confidential records of any report of suspected abuse and shall inform the City in writing within 24 hours of becoming aware of circumstances including, but not limited to allegations of abuse involving an employee, volunteer or agent.
10. Independent Contractor
This Agreement is by and between two independent entities that have an independent contractual relationship. CONTRACTOR shall provide all services under this Agreement as an independent contractor, and neither party shall have the authority to bind or make any commitment on behalf of the other. City does not retain the right to control the means or the method by which Contractor performs work under this Agreement. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture or relationship of principal and agent, master and servant, or employer and employee between the City and CONTRACTOR and any of their employees, agents, affiliates or other representatives, or between the City and any individual assigned by CO NTRACTOR to perform any services for the City. Contractor or any agent or employee of Contractor is liable for the acts and omissions of itself, its employees and its agents.
Contractor shall be responsible for all obligations and payments, whether imposed by federal, state or local law, including, but not limited to, FICA, income tax withholdings, unemployment compensation, insurance, and other similar responsibilities related to Contractor’s performing services and work, or any agent or employee of Contractor providing same.
10. Indemnity
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To the fullest extent permitted by law, Contractor shall hold harmless, defend at its own expense, and indemnify the City and its officers, officials, employees, agents, and volunteers, against any and all liability, claims, losses, damages, or expenses, including reasonable attorney’s fees, arising from all acts or omissions of Contractor or its officers, agents, or employees in rendering services under this Agreement; excluding, however, such liability, claims, losses, damages, or expenses arising from the City’s sole negligence or willful acts. The defense and indemnification obligations of this agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this agreement.
Contractor’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this agreement.
11. Insurance
The City requires that all contractors maintain insurance requirements on the Pacific Insurance Network System (PINS). CONTRACTOR procure and maintain, at its own expense during the life of this Agreement, policies of insurance as specified in Exhibit "B" attached and incorporated herein by reference, and shall provide all certificates and endorsements as specified in Exhibit "B" through PINS for approval by the City Risk Manager prior to CONTRACTOR (or subcontractor) commencing any work under this Agreement.
12. CITY Representative
Michelle Perera , Director , as City Manager's authorized representative, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this Agreement shall be coordinated through the CITY representative.
13. CONTRACTOR Representative
Dave Peterson, Director, shall represent CONTRACTOR in all matters pertaining to the services and materials to be rendered under this Agreement. All requirements of CONTRACTOR pertaining to the services to be rendered under this Agreement shall be coordinated through the CONTRACTOR representative.
14. Notices
All notices required by this Agreement, other than invoices for payment which shall be sent directly to Accounts Payable, shall be in writing, and sent by first class with postage prepaid, or sent by commercial courier, to address below.
To CITY: Michelle Perera, Director
Department of Library and Community Services
CITY OF SUNNYVALE
P. O. Box 3707
Sunnyvale, CA 94088-3707
To CONTRACTOR: Dave Peterson, Director
CALIFORNIA SPORTS CENTER
838 Malone Road
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San Jose CA 95125
Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by email or fax, to accomplish timely communication. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three business days after mailing.
15. Assignment and Subcontracting
Neither party shall assign or sub contract any portion of this Agreement without the prior written consent of the other party.
16. Termination
A. If CONTRACTOR defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to CONTRACTOR. In the event of such termination, CONTRACTOR shall be compensated in proportion to the percentage of satisfactory services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate.
CONTRACTOR shall present CITY with any work product completed at that point in time.
B. Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon ten (10) days' written notice to CONTRACTOR. In the event of such termination, CONTRACTOR shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. CONTRACTOR shall present CITY with any work product completed at that point in time.
C. If CITY fails to pay CONTRACTOR, CONTRACTOR at its option may terminate this Agreement if the failure is not remedied by CITY within (30) days after written notification of failure to pay.
17. Entire Agreement; Amendment
This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced in writing signed by all parties (wet or electronic signature).
18. Miscellaneous
A. Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision.
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B. This Agreement shall be governed and construed in accordance with the laws of the State of California. Venue shall be Santa Clara County, California.
C. Audit and Inspection of Records. Contractor agrees to maintain and make available to the City, during regular business hours, accurate books and accounting records relating to its Services. Contractor will permit City to audit, examine and make excerpts and transcripts from such books and records, and to make audits of all invoices, materials, payrolls, records or personnel and other data related to all other matters covered by this Agreement, whether funded in whole or in part under this Agreement. Contractor shall maintain such data and records in an accessible location and condition for a period of not fewer than five years after final payment under this Agreement or until after final audit has been resolved, whichever is later.
IN WITNESS WHEREOF, the parties have executed this Agreement.
ATTEST: CITY OF SUNNYVALE ("CITY")
By_________________________ By_________________________ City Clerk City Manager
APPROVED AS TO FORM: CALIFORNIA SPORTS CENTER
("CONTRACTOR")
By _________________________ By _________________________ City Attorney
____________________________
Name and Title
By _________________________
____________________________
Name and Title
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EXHIBIT “A”
SCOPE OF WORK
CONTRACTOR shall:
• Provide recreational gymnastics instruction services at City’s Indoor Sports Center mezzanine and bar room, 550 East Remington Drive, as required by CITY.
• Comply with the requirements of CITY’s Handbook for Independent Contract Instructors, dated 03/29/16 and/or as amended, throughout the term of this Agreement.
• Comply with Santa Clara County Public Health
• Use CITY’s facilities only during allotted class time and for pre -approved staff training, meetings and classroom maintenance. Additional use of CITY’s facilities, if any, shall be on a rental basis, according to CITY’s current Facility Rental Rate Schedule.
• Not solicit business in class nor use the class roster or other information obtained in class to create a mailing list or for any other business purpose.
• Be compensated at the rate of 73% of the resident class and summer camp rate per registered student minus any refunds.
CITY shall:
• Provide program listings in seasonal activity guides and City website. • Provide opportunities to highlight gymnastics programs at least once a year in “Community Connect” online newsletter and other City social media sites. • Submit facility work orders as reported to address repairs, safety issues, and janitorial needs. • Provide on-going janitorial maintenance which will include:
o Vacuuming the mezzanine and bar room once a week.
o Carpet steam cleaning the mezzanine and bar room once annually during winter closure. CSC staff will be responsible for moving mats. • Initiate payment after completion of the first two weeks of each session.
Traditional Structured Camp Programs:
CONTRACTOR may offer additional traditional structured camp programs during the school year (September to May) and be compensated at the rate of 80%. These camp programs are offered during the school breaks and may include the Holiday Recess (December/January Break), Winter Recess (February Break) and Spring Recess (April Break) pending no conflicts with facility closures. Payment shall be initiated after the completion of the camp.
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EXHIBIT “B”
INSURANCE REQUIREMENTS FOR CONTRACTORS
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the Contractor, their agents, representatives, or employees.
Minimum Scope and Limits of Insurance. Contractor shall maintain limits not less than:
1. Commercial General Liability: coverage written on an occurr ence basis with limits not less than $3,000,000 per occurrence and $6,000,000 aggregate for bodily injury, personal injury and property damage. ISO Occurrence Form shall be at least as broad as CG 0001.
2. Automobile Liability: coverage with a combined single limit of not less than $1,000,000 per occurrence applying to all owned, non -owned, or hired vehicles used in conjunction with this contract for bodily injury and property damage. ISO Form shall be at least as broad as CA 0001.
3. Workers’ Compensation: Statutory Limits and Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Industry Specific Coverages. If checked below, the following insurance is also required:
☐ Liquor Liability coverage written on an occurrence basis with limits not less than $1,000,000 per occurrence.
☐ Crime coverage with limits not less than $500,000 to include third party premises endorsement.
☒ If working directly with minors, the Ce rtificate of Insurance must include coverage for molestation and sexual abuse with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate.
☒ Garage Liability coverage written on an occurrence basis with limits not less than $1,000,000 per occurrence.
☐ Garage Keepers Liability coverage with limits not less than $100,000 per location.
☐ On-Hook coverage with limits not less than $100,000 per vehicle.
Deductibles, Self-Insured Retentions and Other Coverages:
Any deductibles or self -insured retentions must be declared and approved by the City of Sunnyvale, Risk Manager. The Contractor shall guarantee payment of any losses and related investigations, claim administration and defense expenses within the deductibl e or self-insured retention.
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The aforementioned insurance requirements can be met through any combination of self-insured, primary and excess/umbrella policies that fulfill the stipulated coverage as cited above.
Other Insurance Provisions:
1. During the te rm of the contract, the City of Sunnyvale, its officers, officials, employees, agents, and volunteers are to be covered as an additional insured in the Contractor’s commercial general liability policy (and if industry specific coverage is checked above, liquor liability, and molestation and sexual abuse policies) with respect to liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contrac tor. The coverage shall contain no special limitations on the scope of protection afforded to the City of Sunnyvale, its officers, officials, employees, agents, or volunteers.
Additional Insured Endorsement for ongoing operations at least as broad as ISO CG 20 10 Scheduled, or automatic CG 20 38.
2. During the term of the contract, the Contractor’s Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Sunnyvale.
3. For any claims related to this project, the Contractor’s insurance shall be primary. Any insurance or self -insurance maintained by the City of Sunnyvale, its officers, officials, employees, agents and volunteers shall be excess of the Contractor’s insurance and shall not contribute with it and shall be at least as broad as ISO CG 20 01 04 13.
4. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Sunnyvale, its officers, officials, employees, agents or volunteers.
5. The Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
6. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City of Sunnyvale.
7. Any umbrella or excess insurance liability policies shall be true “following form” of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this document, including the additional insured , SIR, and primary and non-contributory insurance requirements for the benefit of City (if agreed to in a written contract or agreement) until all coverage carried by or available to the Contractor’s primary and excess liability policies are exhausted and before the City’s own Insurance or self-insurance shall be called upon to contribute to a loss.
8. The policy limits of coverage shall be made available to the full limits of the policy. The minimum limits stated above shall not serve to reduce the Contracto r’s policy limits of coverage. Therefore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement, or (2) the broader coverage and Attachment 1
maximum limits of coverage of any insurance policy or proceeds avai lable to the named insured, whichever is greater.
Acceptability of Insurers:
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII, and who are admitted and authorized to do business and in good standing in Calif ornia unless otherwise acceptable to the City of Sunnyvale’s Risk Manager.
Verification of Coverage:
The City of Sunnyvale utilizes PINSAdvantge.com (PINS) to track and verify all insurance related documents. They City is no longer accepting Certificates of Insurance by mail and requires the use of PINS. The City will email the Contractor requesting proof of insurance for this Contract through the PINS platform ([email protected]), which include instructions on how to upload insurance documents electronically. Contractor shall furnish the City of Sunnyvale with an original Certificate of Insurance effecting the coverage required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City of Sunnyvale, Risk Manager prior to commencement of work.
The Contractor shall provide certificate(s) evidencing renewals of all insurance required herein prior to the expiration date of any such insurance. Contractor shall submit insurance certificates reflecting the policy renewals through PINS. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Subcontractors
Contractor shall require all subcontractors to procure and maintain insurance policies subject to these requirements. Failure of Contractor to verify existence of sub-contractor’s insurance shall not relieve Contractor from any claim arising from sub-contractors work on behalf of Contractor.
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