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HomeMy WebLinkAboutReso 41-22 Approving a Contract Instructor Services Agreement with Squad Estates dba Skyhawks Tri Valley East Bay for Rec Services Reso. No. 41-22, Item 4.2, Adopted 05/17/2022 Page 1 of 1 RESOLUTION NO. 41 - 22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A CONTRACT INSTRUCTOR SERVICES AGREEMENT WITH SQUAD ESTATES DBA SKYHAWKS TRI VALLEY EAST BAY FOR RECREATION SERVICES WHEREAS, the Parks and Community Services Department receives and approves proposals from independent contractors who are interested in providing recreational activities or programs to the Dublin community; and WHEREAS, Staff has reviewed and accepted a proposal from Squad Estates DBA Skyhawks Tri Valley East Bay to provide sport classes and camps through the City of Dublin; and WHEREAS, Staff has negotiated terms with Squad Estates DBA Skyhawks Tri Valley East Bay for an agreement that shall begin on July 1, 2022 and shall end on June 30, 2024. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve a Contract Instructor Services Agreement with Squad Estates DBA Skyhawks Tri Valley East Bay for Recreation Services. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement, attached hereto as Exhibit A, and make any necessary, non-substantive changes to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 17th day of May 2022, by the following vote: AYES: Councilmembers Hu, Josey, Kumagai, McCorriston and Mayor Hernandez NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: ______________________________ City Clerk AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 1 AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES This Agreement for Contract Instructor Services (“Agreement”) is made and entered into as of the 1st day of July, 2022 by and between the City of Dublin, a municipal corporation of the State of California ("City") and Squad Estates DBA Skyhawks Tri Valley East Bay (“Contractor”), a sole proprietorship in the State of California (collectively, the “Parties”). In consideration of their mutual covenants, the Parties hereto agree as follows: 1. Scope of Work. The Parties acknowledge that Contractor possesses experience and knowledge of value to the City and, as such, enter into this Agreement for specialized services. Subject to the terms and conditions of this Agreement, the Contractor shall provide the following (“Services”): [SEE “EXHIBIT A” FOR DESCRIPTION OF SERVICES] 2. Performance of Services. Contractor has the right and power to control how the Services provided under this Agreement will be performed by the Contractor and its employees, agents, or representatives. Contractor shall direct the means, manner, and method by which the Services under this Agreement will be performed, without interference from the City as to the mode of accomplishing or effectuating the performance of Services. Contractor may, at its own expense, retain the services of third- parties in performing the Services under this Agreement, unless doing so would result in a material breach of any provision contained herein. 3. Payment Terms. For the services described in Section 1 above, the City agrees to pay Contractor 60% of the resident rate of onsite courses for each participant, or, 70% of the resident rate of offsite/virtual courses for each participant, which amount shall include all expenses . Except as specifically authorized by City, Contractor shall not bill City for duplicate services performed by more than one person (reasonable quality control and assurance work as generally recognized as an acceptable practice in this field is expected). Contractor understands that any time a participant requests a refund or credit, that amount will be reduced from the gross revenue on which Contractor’s payment is calculated. Contractor understands and agrees that Contractor will complete and submit a Contract Contractor Course Proposal Form for each session that courses will be offered. Submitting a proposal does not guarantee that the course, program or activity will be added to the City’s public recreation offerings. Session dates may be altered from time to time at the City’s discretion. City, at its sole discretion, will accept or reject Contractor’s proposal and collaborate with Contractor in finalizing a session schedule. When each session schedule is finalized, the City will produce a Schedule Summary. Final Schedule Summaries will be incorporated herein by this reference as if set forth in full. At the end of each session, the City shall pay Contractor for services rendered. The City will issue payment to Contractor within 30 business days after services are complete. Prior to City processing payment, Contractor shall submit course attendance sheets and completed evaluation forms, if applicable, to the Parks and Community Services Department within five working days upon completion of service. 4. Location of Work. Due to the nature of work and subject to the terms and conditions of this Agreement, the City and Contractor agree that Contractor will provide services and/or class instruction (check all that apply): † Offsite: At his/her/their own facility, located off-premises from any City-owned facility located at ____________________________________________________________. (Street, City, Zip Code) _ Onsite: At a City-owned facility. _ Other: ____________________Virtual_____________________________________. (Please Describe) Exhibit A AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 2 5. Expenses. Except as otherwise specified in this Agreement or mutually agreed upon by the Parties, the Contractor shall be responsible for all the necessary costs and expenses incurred in connection with the performance of the Services under this Agreement. This may include, but is not limited to, supplies, software, subscriptions, working spaces, equipment, operating costs, business costs, licenses, registrations, employment costs, taxes, Social Security contributions / payments, disability insurance, unemployment taxes, and any other cost that is made in connection with the Services provided Contractor. 6. Term. Contractor’s engagement with the City, and the terms and conditions of this Agreement, shall be effective as of July 1st 2022 (“Effective Date”) and shall terminate on June 30th 2024. 7. Termination. This Agreement may be terminated by either Party upon sixty (60) days of prior written notice, or as mutually agreed upon in writing by both Parties. At the time of termination, Contractor agrees to return all the City property in Contractor’s possession including, but not limited to, any documents, materials, and other proprietary information belonging to the City, in both physical and electronic form. The City shall issue a final payment to Contractor for all Services provided and due as of the date of termination. If either Party materially breaches any term of this Agreement, in addition to any other remedies at law or equity, the other Party may terminate the Agreement if such breach is not cured within ten (10) days after written notice of such breach is given. In addition, if the Contractor is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directive of City, is guilty of serious misconduct in connection with performance hereunder, or materially breaches provisions of this Agreement, City at any time may terminate the engagement of the Contractor immediately and without written notice to the Contractor. By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq. 8. Relationship of Parties. It is understood by the Parties that, under the code of the Internal Revenue Service (IRS) and applicable law, the Contractor is an independent contractor with respect to the City. Therefore, the Parties agree and acknowledge that neither the Contractor, or any of its employees, subcontractors, volunteers, or agents (collectively, “Representatives”) are employed by the City. Furthermore, at all times during the term of this Agreement, the Contractor and its Representatives shall have no authority, express or implied, to bind the City to any obligation whatsoever. Notwithstanding any other state or federal law to the contrary, the Contractor and its Representatives shall not qualify for, or become entitled to any compensation, benefit, except as specified in this Agreement, or any incident of employment with the City. In its capacity as an independent contractor, Contractor agrees and represents that: (i) Contractor has the right to control and direct the means, manner, and method by which the Services required by this Agreement will be performed; (ii) Contractor maintains all necessary licenses, registrations, permits, and certifications required to perform the Services under this Agreement; (iii) Contractor sets its own hours and maintains a business location that is separate from the business or work location of the City; (iv) Contractor is customarily engaged in an independently established business providing the same or similar services as provided by this Agreement; (v) Contractor has the ability to contract with other businesses to provide the same or similar services as provided by this Agreement, without restriction from the City; (vi) Contractor holds itself out to the public as available to provide the same or similar services; (vii) Contractor provides its own tools, equipment, software, programs, and any other supplies necessary to perform the Services; (viii) Contractor can negotiate its own rates; (ix) Contractor has the right to hire assistants, retain subcontractors, or utilize employees to provide the services required under this Agreement; AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 3 (x) Contractor shall be solely responsible for the payment of payroll taxes and any unemployment compensation on behalf of their employees and personnel; (xi) Contractor shall be responsible for providing all workers’ compensation insurance on behalf of their employees and, if Contractor hires employees to perform any work under this Agreement, Contractor agrees to grant workers’ compensation coverage to the extent required by law. By initialing below, Contractor agrees and acknowledges that Contractor has reviewed the enumerated list contained in Section 8. Contractor further agrees and acknowledges that everything listed in subsections (i) through (xi) above is true and accurate. _______________ Initial 9. Non-Exclusivity. It is contemplated that the relationship between the Contractor and the City shall be a non-exclusive one. Contractor has the right and ability to perform services for other business entities, organizations, and/or individuals, without restriction from the City, except where matters may arise as to confidentiality and conflicts of interest. 10. Indemnification. Contractor will defend and indemnify the City and its officers, directors, managers, employees, agents, and representatives (“Affiliates”) against any and all claims, deductibles, self-insured retentions, demands, liability, judgments, awards, fines, mechanics’ lien s, or other liens, labor disputes, losses, damages, expenses, charges or costs, of any kind or character, including attorneys’ fees and court costs (collectively, “Claims”), which arise out of or are in any way connected to this Agreement or Contractor’s activities pursuant to this Agreement, including without limitation, Claims related to sexual abuse or molestation, and Claims caused by the concurrent negligent act, error, or omission, whether active or passive, of the City and its Affiliates. 11. Insurance. Where necessary to perform the Services under this Agreement, Contractor, at its sole cost and expense, shall procure and maintain for the duration of the Agreement the types and amounts of insurance listed below against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor and its Representatives. Contractor will obtain and maintain policies of commercial general liability insurance and automobile liability insurance, and worker’s compensation insurance and/or sexual abuse and molestation liability insurance, if applicable, from an insurance company authorized to transact the business of insurance in the State of California. The insurance requirements are as follows: (i) Commercial General Liability: Insurance plan, at least as broad as Insurance Services Office Form CG 0001 (most recent edition), with an “occurrence” basis, including property damage, bodily injury, personal & advertising injury, and sexual abuse and molestation with limits no less than $1,000,000 per occurrence. (ii) Automobile Liability: Contractor shall maintain a current and valid Automobile Insurance Policy at or above the minimum level required by the State of California for any and all vehicles used to perform the Services under this Agreement. (iii) Workers’ Compensation: Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. Proof of workers’ compensation insurance is applicable if Contractor has employees other than self. If Contractor does not have employees other than self, Contractor shall submit a completed “No Employees Declaration Form” provided by the City. (iv) Sexual Abuse or Molestation (SAM) Liability: If the Commercial General Liability policy referenced above is not endorsed to include affirmative coverage for sexual abuse or molestation, Contractor shall obtain and maintain a policy covering Sexual Abuse and Molestation with a limit no less than $1,000,000 per occurrence. AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 4 The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A-:VII. The City of Dublin and its elected officials, officers, employees, agents, and volunteers must be named as additional insureds on commercial general liability insurance, automobile liability insurance, and sexual abuse or molestation liability insurance, if applicable. Contractor’s insurance coverage will be primary insurance with respect to City and its elected officials, officers, employees, agents, and volunteers. The insurance policies must include a waiver of all rights of subrogation against the City, its elected or appointed officers, officials, agents, and employees for losses paid under the terms of any policy which arise from work performed by the Contractor for the City (including workers’ compensation insurance, if applicable). Any insurance or self-insurance maintained by the City will be in excess of Contractor’s insurance and not contributory with it. Contractor will furnish certificates of insurance and endorsements to City prior to City’s execution of this Agreement. This Agreement is expressly contingent upon the insurance requirements being met, and this Agreement shall not be complete and no work may commence until Contractor has provided adequate proof of insurance. If the City does not receive the required insurance documents prior to the Contractor beginning work, it shall not waive the Contractor’s obligation to provide them. The City reserves the right to modify these requirements, and reserves the right to require complete copies of all required insurance policies at any time. 12. Nondiscrimination and Equal Opportunity. The Parties shall not discriminate, on the basis of a person’s race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), against any employee, applicant for employment, subcontractor, bidder for a subcontract, or applicant for any services or programs provided under this Agreement. 13. Mandated Reporting. Contractor recognizes and acknowledges that persons under the age of 18 may participate in classes/activities to be conducted by Contractor pursuant to this Agreement. Contractor further recognizes and acknowledges that if any person under the age of 18 does, in fact, participate in said classes/activities, then Contractor is deemed to be a “Mandated Reporter” pursuant to the California Child Abuse and Neglect Reporting Act (Penal Code §§ 11164-11174.3) (“CANRA”). Concurrently with the execution of this Agreement and pursuant to Penal Code section 11166.5, Contractor has been provided with, and has executed, an Acknowledgement of Mandated Requirements, Receipt of Training, and Receipt of Penal Code Statutes, which acknowledgement shall be maintained by the City during the term of this Agreement. If the Contractor has employees, subcontractors, volunteers, and agents, and those employees, subcontractors, volunteers, and agents will come into contact with minors on a regular basis, those employees must also follow the Mandated Reporter requirements. Contractors who have employees will be required to execute an Acknowledgement and Release of Information, which acknowledgement shall be maintained by the City during the term of this Agreement. 14. TB Test Requirements. If the Services include contact with minors, Contractor shall produce a certificate, issued by a licensed physician or other authorized agency, showing that within the last two years the Contractor has been examined and has been found to be free of communicable tuberculosis (TB). If the Contractor has employees, those employees must also follow the TB requirements set forth in this Agreement. Contractors who have employees, subcontractors, volunteers, and agents will be required to execute an Acknowledgement and Release of Information, which acknowledgement shall be maintained by the City during the term of this Agreement. AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 5 15. Fingerprint Requirements. If class/program is open to youth under the age of 18 years, Contractor and any of its employees, subcontractors, volunteers, and agents of the Contractor agrees to fulfill all fingerprint/background checks prior to the first class. Contractor and the Contractor’s employees, subcontractors, volunteers, and agents, if any, are not eligible to work until the clearance is received from the Department of Justice and Contractor has been notified by a Parks & Community Services Department representative. 16. Transporting Participants. Contractor or any of its employees, subcontractors, volunteers, and agents shall not transport any participant in his/her own vehicle. Transportation is the responsibility of the program participant. 17. Mutual Representations and Warranties. Both the City and Contractor represent and warrant that each Party has full power, authority and right to execute and deliver this Agreement, has full power and authority to perform its obligations under this Agreement, and has taken all necessary action to authorize the execution and delivery of this Agreement. No other consents are necessary to enter into or perform this Agreement. 18. No Implied Waiver of Breach. The waiver of performance or any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 19. Notice. Any notice or other communication given or made to either Party under this Agreement shall be in writing and delivered by hand, sent by certified or registered mail, return receipt requested, to the addresses provided below or to another address as that Party may subsequently designate by notice, and shall be deemed given on the date of delivery. City Contractor Linda Smith City Manager 100 Civic Plaza Dublin CA 94568 (925) 833-6650 Sergio Parra - Squad Estates DBA Skyhawks Tri Valley East Bay 1222 136th Avenue San Leandro CA 94578 (925) 339-6859 20. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 21. Disputes. All disputes arising out of this agreement shall be submitted to final and binding arbitration in accordance with the rules of the American Arbitration Association. The dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator's award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof. 22. Governing Law and Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. The laws of the State of California will govern this Agreement. 23. Integration and Amendments. This Agreement represents the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral as of the Effective Date. The Parties may amend this Agreement if mutually agreed upon in writing. SIGNATURES ON THE FOLLOWING PAGE AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 6 IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the Effective Date. CITY OF DUBLIN: CONTRACTOR: BY: ____________________________________ BY: ____________________________________ SIGNATURE SIGNATURE ____________________________________ ____________________________________ NAME NAME DATE: __________________________________ DATE: __________________________________ 3629050.1     AGREEMENT FOR CONTRACT INSTRUCTOR SERVICES 7 EXHIBIT A Skyhawks Sports Academy is a franchise youth sports organization that offers nationwide programs for ages 4 – 14 years old. Skyhawks Tri Valley East Bay provides programming in the Tri Valley focusing on the basics and fundamentals of specific sports including: basketball, lacrosse, soccer, golf, track and field, flag football, baseball, and multi-sport classes and camps year round. Classes are taught by coaches who have been trained by professional sport grade curriculums and all programming welcomes players of all skill levels, including beginners and those looking to fine tune their current skills. During Spring and Fall seasons, Skyhawks also offers basketball and soccer clinics in Dublin. All equipment and class materials are provided by Skyhawks so that participants can simply arrive to class ready to engage in fun.