HomeMy WebLinkAboutC-8380-1 - Services Agreement for Basketball League AdministrationAMENDMENT NO. ONE TO
SERVICES AGREEMENT
WITH DARRYL CLARK FOR
BASKETBALL LEAGUE ADMINISTRATION
THIS AMENDMENT NO. ONE TO SERVICES AGREEMENT ("Amendment No.
One") is made and entered into as of this 16th day of November, 2017 ("Effective Date"),
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and DARRYL CLARK, a sole proprietor doing business as ("DBA")
HANGTIME SPORTS ("Contractor"), whose address is P.O. Box: 2138, Carlsbad,
California 92018-2138, and is made with reference to the following:
RECITALS
A. On January 1, 2017, City and Contractor entered into a Services Agreement
("Agreement") to engage Contractor to provide Administration and Operation
Services for the Adult Basketball League.
B. The parties desire to enter into this Amendment No. One to increase the total
compensation as a result of an unexpected increase in volume of services.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. COMPENSATION TO CONTRACTOR
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Contractor for the Services on a time and expense not -to -exceed
basis in accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit B and incorporated herein by reference. Contractor's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subcontractor fees, shall not exceed Eighty Thousand Dollars
and 00/100 ($80,000.00), without prior written authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior written
approval of City."
The total amended compensation reflects Contractor's additional compensation for
an increased volume services to be performed in accordance with this Amendment No.
One, including all reimbursable items and subcontractor fees, in an amount not to exceed
Five Thousand Dollars and 00/100 ($5,000.00).
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Darryl Clark DBA Hangtime Sports Page 1
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: n 17x/ L-7
0
Aaron C. Harpy (AM WTI_ik.
City Attorney
ATTEST: 17,
Date:
By. 4M�,I )1V/ ,
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 1
By:
Dave iff
City Manager
CONTRACTOR: DARRYL CLARK, a sole
proprietor doing business as ("DBA")
HANGTIMf SPORTS
Date. U q
IL
By:
Dar rk
Sole Propne - r
[END OF SIGNATURES]
Darryl Clark DBA Hangtime Sports Page 2
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 8/22/17
Dept./Contact Received From:
Teri
Date Completed: 8/22/17 Sent to: Teri By: Jan
Company/Person required to have certificate: Darryl Clark
Type of Contract: Recreation
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/1/17 - 8/1/18
A.
INSURANCE COMPANY: Greenwich Insurance Company
B.
AM BEST RATING (A-: VII or greater): A:XV
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1M or greater): What is limit provided?
1,000,000/5,000,000
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: On File Per Teri Craig 8/21/17
A. INSURANCE COMPANY:
B.
C.
D.
E.
F.
AM BEST RATING (A-: VII or greater)
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
N/A
❑ Yes ❑ No
Haulers only): ® N/A ❑ Yes ❑ No
G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ®No
H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No
WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: On File Per Teri Craig 8/21/17
A. INSURANCE COMPANY:
B. AM BEST RATING (A-: VII or greater):
C. ADMITTED Company (Must be California Admitted):
D. WORKERS' COMPENSATION LIMIT: Statutory
E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater)
F. WAIVER OF SUBROGATION (To include): Is it included?
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
H. NOTICE OF CANCELLATION:
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved: 3
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
8/22/17
Date
❑ Yes ❑ No
❑ Yes ❑ No
❑ Yes ❑ No
® N/A ❑ Yes ❑ No
❑ N/A ® Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management Date
* Subject to the terms of the contract.
SERVICES AGREEMENT
WITH DARRYL CLARK FOR
BASKETBALL LEAGUE ADMINISTRATION
THIS SERVICES AGREEMENT ("Agreement") is made and entered into as of
this 1st day of January, 2017 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("Citta'), and
DARRYL CLARK, a sole proprietor doing business as ("DBA") Hangtime Sports,
("Contractor"), whose address is P.O. Box 2138, Carlsbad, CA 92018-2138 and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to provide Administration and Operation
Services for the Adult Basketball League ("Project').
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the Administration and Operation services described in this
Agreement.
D. Contractor has examined the locations of all proposed work, carefully reviewed
and evaluated the specifications set forth by City for the Project, is familiar with
all conditions relevant to the performance of services, and has committed to
perform all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2017, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall diligently perform all the services described in the Scope
of Services/Additional Terms & Conditions attached hereto as Exhibit A and
incorporated herein by reference ("Services" or "Work"). As a material inducement to
City entering into this Agreement, Contractor represents and warrants that Contractor is
a provider of first class work and Contractor is experienced in performing the Work
contemplated herein and, in light of such status and experience, Contractor covenants
that it shall follow community professional standards with the ordinary degree of skill
and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances, in performing the Work required hereunder.
2.2 Contractor shall perform all Work required to be performed, and shall
provide and furnish all the labor, materials, necessary tools, expendable equipment and
all utility and transportation services necessary for the Project.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Contractor shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Contractor to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3.4 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the circumstances, by
fax, hand -delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except
as otherwise provided herein, no rate changes shall be made during the term of this
Agreement without the prior written approval of City. Contractor's compensation for all
Services performed in accordance with this Agreement, including all reimbursable
items, shall not exceed Seventy Five Thousand Dollars and 00/100 ($75,000.00),
without prior written amendment to the Agreement.
4.2 Contractor shall submit weekly invoices to City describing the Work
performed the preceding week. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it relates, the date
the Services were performed, the number of games in which Services were rendered
during the preceding week, and a description of any reimbursable expenditures. City
shall pay Contractor no later than thirty (30) calendar days after approval of the weekly
invoice by City staff.
Darryl Clark Page 2
4.3 City shall reimburse Contractor only for those costs or expenses
specifically identified in Exhibit B to this Agreement, or specifically approved in writing in
advance by City.
4.4 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B.
5. PROJECT MANAGER
5.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Darryl Clark to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Recreation & Senior Services
Department. City's Recreation Manager or designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator shall represent City in all matters pertaining to the Services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Contractor's Work schedule. City shall also
be responsible for Section 3 in the Scope of Services/Additional Terms & Conditions
attached hereto as Exhibit A.
8. STANDARD OF CARE
8.1 RESERVED
8.2 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
Darryl Clark Page 3
the Services required by this Agreement, and that it will perform all Services in a
manner commensurate with community professional standards and with the ordinary
degree of skill and care that would be used by other reasonably competent practitioners
of the same discipline under similar circumstances. All Services shall be performed by
qualified and experienced personnel who are not employed by City. By delivery of
completed Work, Contractor certifies that the Work conforms to the requirements of this
Agreement, all applicable federal, state and local laws and legally recognized
professional standards.
8.3 Contractor represents and warrants to City that it has, shall obtain and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
used or employed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or
its subcontractors, or its workers, or anyone employed by either of them.
9.2 Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the
Work of any subcontractor or supplier selected by Contractor.
9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
the property upon which Contractor performs the Project and/or Services contemplated
by this Agreement (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Contractor's presence or
activities conducted on the Project (including the negligent, reckless, and/or willful acts,
Darryl Clark Page 4
errors and/or omissions of Contractor, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly
by any of them or for whose acts they may be liable, or any or all of them).
9.4 Notwithstanding the foregoing, nothing herein shall be construed to
require Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Contractor.
9.5 Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original
condition and former usefulness as soon as possible, and to protect public and private
property. Contractor shall be liable for any private or public property damaged during
the performance of the Work by Contractor or its agents.
9.6 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
9.7 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Contractor, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Contractor or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Contractor or any of Contractor's employees or agents, to be the agents or employees
of City. Contractor shall have the responsibility for and control over the means of
performing the Work, provided that Contractor is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Contractor as to the details of the performance of the Work or to exercise a measure of
control over Contractor shall mean only that Contractor shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with Contractor on the Project.
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12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
iEIl 6111OT-1 11[a=
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Contractor, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Contractor is a
partnership or joint -venture or syndicate or cotenancy, which shall result in changing the
control of Contractor. Control means fifty percent (50%) or more of the voting power or
twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -
venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Contractor shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
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17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Additionally, all material posted in
cyberspace by Contractor, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Contractor under this Agreement. All such records and invoices shall be clearly
identifiable. Contractor shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Contractor shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Contractor under this Agreement.
20. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
21. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project.
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22. CONFLICTS OF INTEREST
22.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
22.2 If subject to the Act, Contractor shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Contractor shall indemnify and hold harmless
City for any and all claims for damages resulting from Contractor's violation of this
Section.
23. NOTICES
23.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
23.2 All notices, demands, requests or approvals from Contractor to City shall
be addressed to City at:
Attn: Laura Detweiler, Recreation & Senior Services Director
Recreation & Senior Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
23.3 All notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at:
Attn: Darryl Clark
P.O. Box 2138
Carlsbad, CA 92018-2138
24. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Contractor's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Contractor in writing as unsettled at the time of its final request
for payment. Contractor and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Contractor shall be required to file any claim
Darryl Clark Page 8
Contractor may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
25. TERMINATION
25.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
25.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
26. LABOR
26.1 Contractor shall conform with all applicable provisions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor
Standards Act ("FLSK) (29 USCA § 201, et seq.).
26.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
26.3 Contractor represents that all persons working under this Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
26.4 To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees from loss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any
applicable federal, state and local labor laws or law, rules, and/or regulations. This
obligation shall survive the expiration and/or termination of the Agreement.
27. STANDARD PROVISIONS
27.1 Recitals. City and Contractor acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference.
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27.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
27.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
27.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
27.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
27.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
27.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
27.8 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.
27.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
27.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
27.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
Darryl Clark Page 10
27.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Darryl Clark Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATT�FICE a California municipal corporation
Date: Date: • ��
• j
By: By
: "
Aaron C. Harp la �q l� eiler
City Attorney & Senior Services Director
ATTEST:
Date:
By:
—Z - I
Leilani I. Brown
City Clerk
CONTRACTOR: Darryl Clark, a sole
proprietor doing business as ("DBA")
Hangtime Sports
Date: r-)% if , 1 1-7
By:
Darryl
Sole Proprietor
�tiWPp��
04
U [END OF SIGNATURES]
Attachments: Exhibit A – Scope of Services/Additional Terms & Conditions
Exhibit B – Schedule of Billing Rates
Exhibit C – Insurance Requirements
Darryl Clark Page 12
EXHIBIT A
SCOPE OF SERVICES/ADDITIONAL
TERMS & CONDITIONS
1. ADULT BASKETBALL 5v5 LEAGUE STRUCTURE - Four seasons per year:
1.1 SEASONS —Specific season commencement dates will be provided by the
City at the end of the year.
• Winter (begins on or about January of each year)
• Spring (begins on or about April of each year)
• Summer (begins on or about July of each year)
• Fall (begins on or about September of each year)
1.2Season will consist of 6 -10 -games — not including playoff games
1.3Games are played Monday through Thursday (no weekends).
II AGame times: (actual game times are determined based on the availability of
the gymnasiums)
• 6 -team leagues — 6:30pm, 7:30pm, 8:30pm
• 8 -team leagues— 6:15pm, 7:15pm, 8:15pm, 9:15pm
1.5Gymnasiums
• Ensign School Gym
• Lincoln Athletic Center
• Newport Coast Community Center
• West Newport Community Center
2. CONTRACTOR'S RESPONSIBILITES/
ADDITIONAL TERMS & CONDITIONS
Contractor shall be expected to assist in the promotion, organization and
operation of the City of Newport Beach Recreation and Senior Services
Department's Adult Basketball program, to including the following:
2.1 Administration
Contractor and its designated representatives and officials shall cooperate
fully with the City's Adult Basketball Program, including meeting with the
City's Project Administration or his or her designee when requested, making
assignment changes, including removal when in the interest of the program,
and maintaining an open and regular dialogue with the City and the City's
Project Administrator or his or her designee regarding program matters.
Darryl Clark Page A-1
Contractor's Project Manager shall notify the City's Project Administrator or
his or her designee of any problems or changes in Contractor's assignments
of officials due to causes within Contractor's reasonable control no later than
twenty-four (24) hours prior to each scheduled game. When this notice is not
possible, Contractor agrees to notify the City's Project Administrator or his or
her designee immediately.
Contractor shall provide payment to all assigned officials and scorekeepers.
Contractor shall provide City's Project Administrator with access to database
of certified officials as assigned; must include names, addresses, phone
numbers and current certifications for all officials working under Contractor's
employment.
Contractor's Project Manager shall provide the City with an annual evaluation
report of all assigned officials, including the evaluation process, training
procedures and certification requirements.
Contractor shall be responsible for keeping and submitting a bi-weekly log of
player misconduct, ejections and technical fouls.
Contractor's Project Manager shall report and provide the City with an
assessment of any rule or game related disputes, protests or facility related
issues within twenty-four (24) hours following the game in question.
Contractor's Project Manager shall be required to attend any and all League
Manager meetings.
Contractor may referee games throughout the week as long as assignments
are rotated consistently throughout all divisions during each season. In the
event that the Contractor is refereeing, a designated representative shall be
appointed as primary league contact and Project Manager during such time
periods.
Contractor's Project Manager shall update game scores, forfeits, and
standings through the City designated website no later than twenty-four (24)
hours after each scheduled game.
Contractor shall ensure that all assigned officials are aware of, and will
comply with, any extra officiating obligations, including but not limited to:
• Filing misconduct reports in written form with the City's Project
Administrator or his or her designee within twenty-four hours
following incidents such as fighting and ejections.
Darryl Clark Page A-2
Filing accident reports in written form with the City's Project
Administrator or his or her designee within twenty-four hours
following game related injuries or accidents.
• Fully cooperate and communicate with the City's Project
Administrator or his or her designee for matters pertaining to the
Adult Basketball program and City.
2.2 Assigning Duties
Contractor will assign experienced officials with two (2) or more years of
experience that can competently officiate games in accordance with City rules
and regulations, National Federation of State High School Association rules,
and any and all other policies or procedures governing adult basketball
leagues and tournaments.
Contractor will only assign officials that are able to traverse the entire area of
a basketball court as necessitated by typical game play.
Contractor shall assign two (2) officials per game and one (1) scorekeeper.
Contractor will assign scorekeepers that are trained and certified in AED and
First -Aid.
2.3 Officials / Scorekeepers
Contractor shall ensure that all responsibilities and requirements of officials
and scorekeepers are fulfilled including, but not limited to:
• Wearing company uniform.
• Arriving at the site fifteen (15) minutes prior to game time and
inspecting the court for safety related issues.
• Dry mopping the gymnasium floor and inspecting the playing site
before the scheduled game start time.
• Meeting with team managers prior to each game to review game
rules.
• Maintaining timely rate of play and ensuring that games adhere to
their allotted time limits.
• Verifying all participants have signed the master roster and ensure
score sheets are filled out with both team's lineup prior to game
time. Officials may be required to conduct ID checks periodically by
matching specified player(s) on the master roster with a requested
picture ID.
• Keeping accurate score.
• Enforcing and administering City of Newport Beach Adult
Basketball program League Rules & City of Newport Beach
Participant Code of Conduct, as adopted on May 23, 2014 and
Darryl Clark Page A-3
amended on May 4, 2016, which is available to Contractor upon
request of Contractor.
• Ability to maintain a positive rapport and open line of
communication with team managers and players.
• Maintaining the general organization and cleanliness of relevant
storage areas.
• Locking up the following facilities after use: Ensign School Gym,
Lincoln Athletic Center, Newport Coast Community Center, West
Newport Community Center.
• Distributing awards to winning team at the last game of each
season, as supplied by the City.
3. CITY'S RESPONSIBILITIES/
ADDITIONAL TERMS & CONDITIONS
City shall provide score sheets, team rosters, and blank accident/incident report
forms.
City shall follow-up with reports stemming from player misconduct, ejections and
technical fouls as needed.
City shall provide Contractor with gymnasium allocation for all leagues, including
reserving School District facilities, if needed.
City shall provide keys to the following facilities: Ensign School Gym, Lincoln
Athletic Center, Newport Coast Community Center, and West Newport
Community Center.
City shall provide the maintenance of the Newport Coast Community Center
gymnasium and will serve as the point of contact for the maintenance of Ensign
School Gym, Lincoln Athletic Center, and the West Newport Community Center.
City shall provide first aid supplies at all gymnasiums, including Automated
External Defibrillator (AED) units.
City shall provide opportunities for AED training for scorekeepers that are not
currently certified.
City shall provide awards to all league or tournament champions in all divisions,
including one (1) team and separate individual awards to all players on the
winning champion team up to 12.
Darryl Clark Page A-4
EXHIBIT B
SCHEDULE OF BILLING RATES
$30 each for (2) Referees per game
$17 Scorekeeper fee per game
$9 Assigning fee per game
• Contractor shall provide payment to all assigned officials and
scorekeepers.
• Contractor shall submit invoices on a weekly basis, according to City
schedule.
• Contractor shall be compensated for the following:
o Scheduled games.
o Forfeits.
o Weather, maintenance, and facility related cancellations that occur
during game play.
• Contractor shall not be compensated for the following:
o All fees: Unforeseen maintenance/facility related cancellations
notified forty eight (48) hours before the start of the cancelled
game.
o Referee & Scorekeeper fees: Games cancelled or reschedule by
City so long as Contractor is notified more than one-week in
advance.
o Referee or Scorekeeper fees: A no-show or any game where either
a referee or a scorekeeper is not present shall be deemed
circumstances within Contractor's reasonable control and therefore
Contractor shall not be compensated in such circumstances.
Darryl Clark Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS — SERVICES
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance,
a Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers, employees and
any person or entity owning or otherwise in legal control of the property
upon which Contractor performs the Project and/or Services
contemplated by this Agreement.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, products -
completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another
assumed in a business contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
Darryl Clark Page C-1
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in
legal control of the property upon which Contractor performs the Project
and/or Services contemplated by this Agreement or shall specifically allow
Contractor or others providing insurance evidence in compliance with
these requirements to waive their right of recovery prior to a loss.
Contractor hereby waives its own right of recovery against City, and shall
require similar written express waivers from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in
legal control of the property upon which Contractor performs the Project
and/or Services contemplated by this Agreement shall be included as
insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
Darryl Clark Page C-2
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at anytime.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters
into contracts with on behalf of City will be submitted to City for review.
Failure of City to request copies of such agreements will not impose any
liability on City, or its employees. Contractor shall require and verify that
all subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as
CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
Contractor maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits maintained
by the Contractor. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
Darryl Clark Page C-3
G. City Remedies for Non -Compliance If Contractor or any sub -
consultant fails to provide and maintain insurance as required herein, then
City shall have the right but not the obligation, to purchase such
insurance, to terminate this Agreement, or to suspend Contractor's right to
proceed until proper evidence of insurance is provided. Any amounts paid
by City shall, at City's sole option, be deducted from amounts payable to
Contractor or reimbursed by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
I. Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
Darryl Clark Page C-4