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HomeMy WebLinkAboutContractAGREEMENT WITH SKYHAWKS SPORTS ACADEMY THIS AGREEMENT, dated for reference purposes only as October 5, 2021, is by and between the City of Renton (the “City”), a Washington municipal corporation, and Skyhawks Sports Academy, LLC (“Consultant”), a Delaware limited liability company. The City and the Consultant are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties. 1.Scope of Work: Consultant agrees to provide life skills through sports as specified in Exhibit A, Confirmation of Services, which is attached and incorporated herein and may hereinafter be referred to as the “Work.” 2.Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Work consisting of additions, deletions or modifications. Any such changes to the Work shall be ordered by the City in writing and the Compensation shall be equitably adjusted consistent with the rates set forth in Exhibit A or as otherwise mutually agreed by the Parties. 3.Time of Performance: Consultant shall commence performance of the Agreement pursuant to the schedule(s) set forth in Exhibit A. All Work shall be performed by no later than September 30, 2022. 4.Compensation: A.Amount. Total compensation to the City for completed programs provided pursuant to this Agreement is as follows: (1) For each Renton resident who registers: The City will receive 16% of the resident registration fee; and (2) For each non-Renton resident who registers: The City will receive 16% of the non-resident registration fee plus 100% of the difference in price between the resident registration fee and the non-resident registration fee. For example: A course registration fee is $155 for Renton residents and $184 for non- Renton residents. The City will receive $24.80 for each Renton resident registration and $58.44 for each non-Renton resident registration. Compensation shall be paid based upon completed program according to the rate(s) or amounts specified in Exhibit A (Confirmation of Services). The City agrees that a flat rate charged for completed and approved programs shall remain locked at the CAG-21-254 PAGE 2 OF 10 negotiated rate(s) unless otherwise agreed to in writing or provided in Exhibit A. Except as specifically provided herein the Consultant shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. B. Method of Payment. On a monthly or no less than quarterly basis during any quarter in which Work is performed, the Consultant shall submit a report in a form specified by the City, including a description of what Work has been performed, the name of the personnel performing such Work, and any hourly labor charge rate for such personnel. The Consultant shall also submit a final payment upon completion of all Work. Payment shall be made by the Consultant for Work performed within thirty (30) calendar days after receipt and approval by the appropriate City representative of the report. If the Consultant’s performance does not meet the requirements of this Agreement, the Consultant will correct or modify its performance to comply with the Agreement. The City may withhold payment for work that does not meet the requirements of this Agreement. C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Consultant for failure of the Consultant to perform the Work or for any breach of this Agreement by the Consultant. D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5. Termination: A. The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten (10) calendar days’ notice to the Consultant in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Consultant pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. B. In the event this Agreement is terminated by the City, the Consultant shall be entitled to payment for all hours worked to the effective date of termination, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation is a fixed fee, the City shall pay the Consultant an equitable share of the fixed fee. This provision shall not prevent the PAGE 3 OF 10 City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the City shall be deducted from the final payment due the Consultant. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the City. 6. Warranties And Right To Use Work Product: Consultant represents and warrants that Consultant will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards and laws. Compliance with professional standards includes, as applicable, performing the Work in compliance with applicable City standards or guidelines (e.g. design criteria and Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall certify engineering plans, specifications, plats, and reports, as applicable, pursuant to RCW 18.43.070. Consultant further represents and warrants that all final work product created for and delivered to the City pursuant to this Agreement shall be the original work of the Consultant and free from any intellectual property encumbrance which would restrict the City from using the work product. Consultant grants to the City a non- exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement. The City’s or other’s adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the Consultant. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Record Maintenance: The Consultant shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. The Consultant agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 8. Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Consultant shall make a due diligent search of all records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Consultant believes said records need to be protected from disclosure, it may, at Consultant’s own expense, seek judicial protection. Consultant shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Consultant has responsive PAGE 4 OF 10 records and for which Consultant has withheld records or information contained therein, or not provided them to the City in a timely manner. Consultant shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Independent Contractor Relationship: A. The Consultant is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Consultant and the City during the period of the Work shall be that of an independent contractor, not employee. The Consultant, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Consultant shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Consultant shall retain the right to designate the means of performing the Work covered by this agreement, and the Consultant shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Consultant is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to Consultant or any employee of the Consultant. C. If the Consultant is a sole proprietorship or if this Agreement is with an individual, the Consultant agrees to notify the City and complete any required form if the Consultant retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Consultant’s failure to do so. 10. Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the Consultant in its performance of this Agreement or a breach of this Agreement by Consultant, except for that portion of the claims caused by the City’s sole negligence. PAGE 5 OF 10 Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees and volunteers, Consultant’s liability shall be only to the extent of Consultant’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Consultant’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance with the City’s Code of Ethics and state law, the Consultant shall not give a gift of any kind to City employees or officials. Consultant also confirms that Consultant does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Consultant, negotiating or administering this Agreement, or evaluating the Consultant’s performance of the Work. 12. City of Renton Business License: The Consultant shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: http://www.rentonwa.gov/cms/One.aspx?portalId=7922741&pageId=9824882 Information regarding State business licensing requirements can be found at: http://dor.wa.gov/doing-business/register-my-business 13. Insurance: Consultant shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability, Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. "Professional Services", for the purpose of this section, shall mean any PAGE 6 OF 10 Work provided by a licensed professional or Work that requires a professional standard of care. C. Workers’ compensation coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Consultant’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes. E. Consultant shall name the City as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Consultant liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of Consultant to the coverage provided by such insurance or otherwise limit the City’s recourse to any remedy available at law or in equity. F. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before performing the Work. G. Consultant shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. 14. Delays: Consultant is not responsible for delays caused by factors beyond the Consultant’s reasonable control. When such delays beyond the Consultant’s reasonable control occur, the City agrees the Consultant is not responsible for damages, nor shall the Consultant be deemed to be in default of the Agreement. 15. Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. 16. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission. Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. PAGE 7 OF 10 CITY OF RENTON Tania Thomas 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-6707 tthomas@rentonwa.gov CONSULTANT Andrew Chapman 1826 E Sprague Ave Spokane, WA 99202 Phone: (360) 670-6868 achapman@skyhawks.com 17. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Consultant agrees as follows: A. Consultant, and Consultant’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Consultant will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If the Consultant fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. The Consultant is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 18. Miscellaneous: The parties hereby acknowledge: A. The City is not responsible to train or provide training for Consultant. PAGE 8 OF 10 B. Consultant will not be reimbursed for job related expenses except to the extent specifically agreed within the attached exhibits. C. Consultant shall furnish all tools and/or materials necessary to perform the Work except to the extent specifically agreed within the attached exhibits. D. In the event special training, licensing, or certification is required for Consultant to provide Work he/she will acquire or maintain such at his/her own expense and, if Consultant employs, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. E. This is a non-exclusive agreement and Consultant is free to provide his/her Work to other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. F. Consultant is responsible for his/her own insurance, including, but not limited to health insurance. G. Consultant is responsible for his/her own Worker’s Compensation coverage as well as that for any persons employed by the Consultant. 19. Other Provisions: A. Approval Authority. Each individual executing this Agreement on behalf of the City and Consultant represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Consultant. B. General Administration and Management. The City’s project manager is Tania Thomas. In providing Work, Consultant shall coordinate with the City’s contract manager or his/her designee. C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Consultant proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Consultant prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. PAGE 9 OF 10 E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. Consultant and all of the Consultant’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Consultant hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Consultant is a foreign corporation not registered with the State of Washington. H. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I. Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Work is essential to the Consultant’s performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M.Waivers.Allwaiversshallbeinwritingandsignedbythewaivingparty.Eitherparty’sfailuretoenforceanyprovisionofthisAgreementshallnotbeawaiverandshallnotpreventeithertheCityorConsultantfromenforcingthatprovisionoranyotherprovisionofthisAgreementinthefuture.WaiverofbreachofanyprovisionofthisAgreementshallnotbedeemedtobeawaiverofanypriororsubsequentbreachunlessitisexpresslywaivedinwriting.N.Counterparts.ThePartiesmayexecutethisAgreementinanynumberofcounterparts,eachofwhichshallconstituteanoriginal,andallofwhichwilltogetherconstitutethisoneAgreement.INWITNESSWHEREOF,thePartieshavevoluntarilyenteredintothisAgreementasofthedatelastsignedbythePartiesbelow.CITYOFRENTONCONSULTANTBy:BY:Jj/F.U€-mrnunityServicoAdministratorlefOperatingOfficerDateDateAttestJasonA.SethCityClerkApprovedastoLegalFormBy:______________________________ShaneMaloneyCityAttorneycontractTemplateUpdated9/9/20200PAGE10OF10--------------------(approved via email from Alex Tuttle) Exhibit A Skyhawks Sports Leagues that will be offered throughout the year Baseball Learn the fundamentals of fielding, catching, throwing, hitting and base running - all in a fun, positive environment. Specifically designed for beginning and intermediate players, this program teaches athletes new baseball skills along with vital life lessons such as respect, teamwork and responsibility. Basketball This fun, skill-intensive program is designed for beginning to intermediate players. Using our progressional curriculum, we focus on the whole player - teaching sportsmanship and teamwork. Boys and girls will learn the fundamentals of passing, shooting, ball handling, rebounding and defense through skill-based instruction and small-sided scrimmages. Soccer Your young athlete will gain the technical skills and sport knowledge required for their next step into soccer. Areas of focus are dribbling, passing, shooting and ball control. By the end of the program, your child will have learned new life skills such as teamwork and sportsmanship, made new friends and improved their soccer skills. Volleyball Skyhawks Volleyball takes the energy and excitement of this great team sport and puts it all together into one fun-filled program. All aspects of the game are taught through drills and exercises that focus on bumping, setting, spiking, hitting and serving. This program is designed for the beginning to intermediate player. Mini-Hawk This multi-sport program was developed to give children a positive first step into athletics. Sports are taught in a safe, structured environment filled with encouragement and fun. Through exciting games and activities, campers explore balance, hand/eye coordination and skill development at their own pace. Multi-Sport Multi-Sport programs are designed to introduce young athletes to a variety of different sports in one setting. Athletes will learn the rules and essential skills of each sport, along with vital life lessons such as sportsmanship and teamwork. Beginning Golf Participants will learn the fundamentals of swinging, putting, body positioning, etiquette and keeping score. The program is specifically designed for the entry-level player, simplifying instruction so that young players can make an easy and effective transition onto the golf course. All equipment provided. Lacrosse Athletes will learn all the fundamentals of stick handling, cradling, passing and shooting in a fun, non- checking environment. Participants should wear appropriate athletic attire and bring protective gloves, a helmet with full mask (or goggles) and lacrosse stick. *Limited lacrosse kits available for rent through Skyhawks. Call 800-804-3509 or visit www.skyhawks.com to reserve your kit prior to the program. Tennis Whether your child is a beginning or intermediate player, this program will improve their game and help them get more enjoyment from tennis. Our tennis programs focus on skill refinement as well as practice and match play to develop consistent, well-rounded tennis players. Track and Field The fundamentals of body positioning, stride, proper stretching and cool-down techniques are taught. Track and field events include javelin, discus, shot put, hurdles, long jump, triple jump and various running and relay events (activities may vary by area). Cheerleading This class teaches young athletes the essential skills to lead the crowd and support the home team! Each participant will learn cheers, proper hand/body movements and jumping techniques. There is no stunting, just a big focus on fun while each cheerleader learns important life skills such as teamwork and leadership. The program concludes with a final cheer performance. Flag Football Skyhawks Flag Football Fueled by USA Football is an exciting introduction to America’s favorite game! Using skills and drills from the Football Development Model, developed by the experts at the sport’s national governing body – USA Football – players will gain confidence and prepare for league play. Coaches will teach the key concepts of passing, receiving, running, kicking, punting and flag pulling, all presented in a positive environment. Athletes will learn developmentally appropriate fundamentals and critical life lessons leading to the Skyhawks Sports Bowl, where participants showcase their skills! Visit skyhawks.com for information and schedules. Stem & Play: Soccer/Basketball/Volleyball/Multi-Sport This program combines strategic STEM-based activities with traditional Skyhawks soccer instruction and a focus on life skills such as teamwork and sportsmanship. STEM Sports® soccer curriculum gives students the opportunity to get behind the sport they love with modules on soccer ball design, throw-in science, angles and goal-line technology! Participants will also learn the fundamentals of passing, shooting, dribbling and defense through skill-based drills and scrimmages. Skyhawks puts the Sports in STEM.