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HomeMy WebLinkAboutGASOL FOUNDATIONINSURANCE NOT Oi, HLE WORK MAY NOT PROCEED N-2023-033 CLERK OF COUNCIL DATE: RECREATION SERVICES AGREEMENT WITH THE GASOL FOUNDATION FOR FEB 15 2023 THE GALACTIC SPORTS PROGRAM (AV), THIS AGREEMENT is made and entered into on this 31 st day of January, 2023 by and I between the Gasol Foundation, a Tennessee nonprofit corporation ("Provider"), and the City of RUf wl H Santa Ana, a charter city and Municipal Corporation organized and existing under the Constitution uu and laws of the State of California ("City"). City and Provider are also referred to as "the Parties." RECITALS A. The City recognizes the benefit of the Galactic Sports community -based program being conducted at locations within the City, B. Provider represents that it is able and willing to provide such services to the City C. In undertaking the performance of this Agreement, Provider represents that they are knowledgeable in their Held and that any services performed by Provider under this Agreement will be performers in compliance with such standards as may reasonably be expected D. The Parties acknowledge that the City intends to provide recreational activities to the public but must balance the need to comply with all COVID-19 guidance and restrictions. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES A. Provider shall perform those services as set forth in Exhibit A to this Agreement B. All classes operated pursuant to this Agreement for conducting recreation classes at City facilities, including parks, will comply with all applicable guidance and public health orders, including those from the Centers for Disease Control ("CDC"), California Department of Public Health ("CDPH"), the Orange County Health Care Agency ("OCHCA") and the City itself for as long as those orders and guidance remain in place. Provider will remind participants of these guidelines. To the extent that Provider needs assistance with enforcing any rules or requirements, Provider will contact a City Parks' employee or City security for assistance. C. Provider shall not attend a class or teach any class if Provider is sick or has any symptotn(s) associated with COWD-19 including but not limited to, fever above 100.4, chills, cough, shortness of breath loss of taste or smell, nausea, muscle or body aches, vomiting, headache, sore throat or diarrhea. R Provider will not attend class or teach a class if Provider or rnry member of Provider's household has been asked to quarantine or self -isolate due to symptoms of COVID-19 or a positive test result for COVIfi-19. fi. Provider acknowledges that, to the extent that City is able to and chooses to conduct classes indoors, this Agreement will also cover classes conducted at one of City's recreational centers during the tern, of this Agreement. h, City reserves the right to change the location(s) at which the services contemplated by this Agreement are provided. G. Provider shall comply with the City's recreation classes policy manual and any other City roles and regulations regarding the operation of recreation classes. C:C)MPUNSATICIN Provider is volunteering to conduct the Galactic Sports ill tare Community free of charge as a community -based program. L'CAM This Agreement shall commence on the date first written above and terminate on December 31, 2023 unless terminated earlier in accordance with Section 14 below. The terra of this Agreement may be extended by a writing executed by the City Manager and the City Attorney, 4. INDF'PENDENT CDN` RAC'.TOR Provider shall, during the entire term of this Agreement, be construed to be tin independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards andregulations governing such services. Provider shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar takes relating to employees and shall be responsible for all applicable withholding taxes. Provider is not an agent, representative or employee of City and Provider shall have no authority to act on behalf of the City. S. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Minimum Scope and Limit of Insurance: I. C"omulercial General Liability tnsurance (C"CYI,). Insurance Services officer Form CG 0o 01 covering CGL on an "occurrence" basis, including property damage, bodily injury and personal & advertising h}jory with lirnits no less than $1,000,000 per Occurrence, If a general aggregate limit applies, either the general aggn-igate limit shall apply separately to this project/location (180 CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence Iimit. 2. Automobile Llability. Insurance Services (office Form Number CA 0001 covering Code I (any auto), or if Provider has no owned autos, Code 8 (lured) and 9 (non - owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Worker's Compensation Insurance. In accordance with California State law, Provider, if Provider has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the, work under this Agreement, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 4. Sexual Abuse or Molestatiou (SAM) Liability, If the CGL policy referenced above is not endorsed to include affirmative coverage for sexual abuse or molestation, Provider shall obtain and maintain a policy covering Sexual Abuse and Molestation with a lirmit no less than $100,000 per occurrence or claim or an individual instructor and with it limit no less than $1,000,000 per occurrence or claim For an organization. Broader Coverage, If the Provider maintains broader coverage and/or higher limits than the minimrnms drown above, the City requires and shall be untitled to the broader coverage and/or the higher limits maintained by the Provider. Any available insurance proceeds in excess of the specified minimumr limits of insurance and coverage shall be available to the City. b, Other Insurance Provisions Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Provider including materials, parts, or equipment furnished in connectionwith such work or operations. General liability coverage can be provided in the form of an endorsement to the (Provider's insurance (at least as broad as ISO Form MY 20 10 It 85 or if not available, through the addition of both CG 20 10, CO 20 26, CCr 20 33, or CG 20 38; and CCi 2037 if it later edition is used). 2, Primary Coverage: For any claims related to this contract, the Provider's insurance coverage shall be primary coverage at least as broad as 180 CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City„ its officers, officials, employees, or volunteers shall be excess of the Provider's insurance and shall not contribute with it. 3. Notice of C.'ancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. 4. 'Waiver of Subrogation! provider hereby grants to City a waiver of any right to subrogation that any insurer of said Provider may acquire against the City by virtue Of the payment of any loss under such insurance. Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this Provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer, 5. Self Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City nzay require the Provider to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City, 6. Acceptability of Insurers! Insurance is to be placed with insurers authorized to conduct business in the state with a current AM, Best's rating of no less than A:Vll, unless otherwise acceptable to the City. Verification of Crrverage: provider shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy langnuage effecting coverage requiredby thus clause) and a copy of the Declarations and Indorsement page of the COL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Provider's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies,including endorsements required by these specifications, at any tune, 8. ,Subcontractors: Provider shall require and verify that till subcontractors maintain insurance meeting all the requirements stated herein, and Provider shall ensure that City is an additional insured on insurance required from subcontractors. 9. Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. G, INDEMNIFICATION Provider agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability, (h) for personal injury, damages, just compensation, restitutionjudicial or equitable reliefarising out of claims for personal injury, including death, and claims tot• property damage, which may arise fronx the negligent operations of the Provider or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in Section I of this Agreement; and (2) from any chant that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement, to the extent that tire injury, damages, just compensation, restitution, judicial or equitable relief is caused by the negligence of the Provider, This indemnity and hold harmless agreement applies to all claims for damages„ just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. City may make all reasonable decisions With respect to its representation in any legal proceeding. City agrees to defend, and shall indemnify and hold harmless the Provider, its officers, agents, employees, special counsel, and representatives from liability for injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligence of the City. 9. CONfIllmNTIALITi' "Confidential Information" shall include all nonpublic information disclosed directly or indirectly by one party (".Disclosing Party") to the other party ("Receiving Party") which due: to the nature of such information is reasonably understood to be confidential and/or proprietary. Confidential information includes not only written information, but also information transferred orally, visually, electronically, nr by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. Neither party shall use the Confidential. Information of the other party for any purpose except to exercise its rights and performn its obligations under this Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees of the Peoeiving Party with a need to know. Each party will take reasonable mneasures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential .Information of the other party, and will take at least those measures that it takes to protect its own Confidential Information, The foregoing obligations of non-use <md nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fitult of the Parties disclosed in a publicly available source; (c) is in rightful possession of a Party without an obligation of confidentiality; (d) is required to be disclosed by operation of law, or (e) is independently developed by a Party without reference to information disclosed by the other Pary. S. COVID-19 ASSUMPTION OF RISK AND NVAIVER Provider acknowledges that Provider could be exposed to persons that may have COVID- 19 providing services pursuant to this Agreement, Provider understands that interacting with any person currently comes with the inherent risk of exposure to COVU)-19 and that COVfl7-19 is highly contagious. Provider assumes the risks associated with providing services pursuant to this Agreement, namely potential exposure to COVED-19. Provider acknowledges that while some people have no symptoms or mild symptoms from COVID 19, some people have become seriously ill requiring hospitalization and that some people have died lion COVID-19. Provider acknowledges that persons over the age of hS and persons with underlying health conditions are 5 at greater risk of cotrtracting COVID-19 and are Potentially risking serious injury or death. Provider is agreeing to provide classes pursuant to this Agreement an free will. d does sa of Provider's awn Provider intends to be legally bound by this assumptrion of risk, release and waiver• and to bind Provider's heirs, personal representatives, next of kin and anyone who may make a claim oil Provider's behalf. Provider knowingly releases and waives any and all claims that provider may have or could have in the future and includes any claims exposure to Gresulting from potentiiu exposure or actual t7VIL7 I9, flits includes claims for personal injury, transinittal of COVID-19 to others, and/or wrongful death. Provider agrees to hold harmless, defend and indemnify the City, its public officials, officers, employees, volunteers, and. agents from any and all claims for liability or damages, including those for exposure to or diagnosis setwith COV117 19 as a result of providing vices pursuant to thus Agrecirient. 9. CONFLICT OF INTEREST Provider covenants that it presently has rro interests and shall not have interests, direct or indirect which would conflict in any marmer with performance of services specitied under this Agreemomrt 10- BACKGROUND CITEC K Provider shall ensure that kill employees, subcontractors, and ally volunteers working on - site in City are fingerprinted and background checked prior to conducting any work pursuant to this Agrecinent Provider shall not assign any employee, agent, subcontractor, employee, or the Provider personally to provide services pursuant to this Agreement if that agent, subcontractor, volunteer, of the Provider personally are required to register as a sex offender under California Penal Code Section 290 of sect, have a conviction for any crime of moral turpitude, have a conviction for a sexual based crime, have a conviction for a violent felony as defined in California Penal Code Section 667.5(c), ar has a conviction for a serious felony as defiriLd in California Penal Code Section 1192.7(c). Disqualifying convictions include but are not limited to, violations of California Penal Code Sections 37, 128, 136A with Section 186.22, 187, 190-190.4 and 192(a), 205, 206, 207-209.5, 211, 212, 212.5, 213, 214 215, 218-219, 220, 236. l(b) or 236, f(c), 243 A, 261, 261.5, 273 5, 262, 264.1, 266, 266c, 266h, 266i, 266j, 267, 269, 272, 273a, 273ab, 273d, 295, 286, 288, 288a, 288,2, 288.3, 288.4, 288.5, 288.7, 289, 290, 311.1, 3 l 1,2, 311.3, 3 t 1.4, 311.10, 311.11, 314, 347(a), 368, 417(b), 451(a),518 with 186.22, 647.6, 6531'(c), 664 and 187, 667.5(c), 18745, 18750, or 18755, 12022,53, 11418(b)(1) or (b)(2); Business and Professions Code Section 729. M NOTICE Any notice, tender, demand, delivery, or other cotmmunication pursuant to this Agreement shall be in writing and shall be doented to be; properly given if delivered in Person or mailed by first class or cortified mail, postage Prepaid, or sent by fax or other telegraphic cainrnunication ill manner provided it, this Section, to the: following persons: 6 To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (Mv 30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax (714) 647-6956 With copy to: 13xecutive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza. (M-23) P,O) Box 1988 Santa Ana, California 92702 Fax (714) 571.4211 To Provider: Gasol foundation Attn: I lector De La Torre 137 U Larclunount, Suite 441 Los Angeles, CA 90004 Phone: (213) 493-8102 A. party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address, If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the united States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. if sent by fax„ communication shall be effective or deemed to have been given twenty-four (24) hours after the time set Earth on the transmission report issued by the transmitting; facsimile machine, addressed as set rorth above. For purposes of calculating these time frames, weekends, federal, state„ County or City holidays shall be excluded. 12. IKXCtLUSIMY AND AMENDMENT `this Agreement represents tine complete and exclusive statement between the City and Provider regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the forms of this Agreement and any atiaclunents hereto, the terms of this Agreement shall prevail, This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Provider, The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Provider or the City, Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 13. ASSIGNMENT The: experience, knowledge, capability and reputation of Provider were a substantial inducement for City to enter into this Agreement. Therefore, Provider may not assign, transfer, 7 delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. 14, Tt4,I2NRINA,rto tiI a. 'this Agreement may he terminated by the City immediately pursuant to any federal, state, county or local health order related to or regarding C}VII>-19 making it irnpossikrle to hold classes. For any other reason, this Agreement may be terminated by City upon thirty (30) days written notice of termination, In suet, event, Provider shall be entitled to receive, and City shall pay Provider„ comperimtion for all services rendered prior to the effective date of termination. b, 'Germination or cancellation of classes by the Provider must be given to the City at least thirty (30) days prior to terrninationlcancellatian. Failure to provide adequate cancellation notice to the City may put future contracting of business with the City at risk and will result in the Cit 's retention often (10%) percent of the final payment to Provider, y 15. WAIVER No waiver of breach, failure of any condition, or any right or.rernedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall airy waiver constitute a continuing waiver unless the writing so specifies. 16.. RECORDS Provider shall use attendance streets generated and supplied by the City to record attendance in each class. Provider shall keep these and any other records in connection with the work to be performed tinder this Agreement and shall permit City, upon request, to review such records rot a period of three (3) years from the date of final payment to Provider under this Agreement, 17. NON-DISCRIMINATION Provider shall not- discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran stattrs, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, leaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Provider affirms that it is an equal opportunity employer and shall Comply with all applicable federal, state and local laws and regulations. lg. SURISDICTION—'VGNUE This Agreement has been executed and delivered in the State of CaliforTria and the validity, interpretation, performance, and enforcement of arty of the clauses of this Agreement shall be determined and governed by the laws of the State of Califomia. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 19. LICENSES Provider shall, throughout the tern of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies_ 20. SEVERABILITY In the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or imenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 21. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 22. AUTHORITY The person(s) executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Acting Clerk of the Council CITY OF SANTA ANA Kristine Ridge City Manager Ajg"WUMs Continued on next page J APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: _ Br on Salvatierra Deputy City Attorney RECOMME PROVAL: Flawk $ Executive Director of Parks, Recreation and Conmunity Services Agency 10 PROVIDER: Hector De La Torre Gasol Foundation EXHIBIT A SCOPE OF SERVICES Vendor Information: Gasol Foundation Hector De La Torre 137 N. Larchmont, Suite 441 Los Angeles, CA 90004 (213)493-8102 EXHIBIT A Description: Galactic Sports is a community -based program promoting sports and healthy habits. The goal of the program is to reduce risk of childhood obesity among children by engaging them in sports and promoting these healthy habits: diet, physical activity, sleep, and emotional well-being. Audience: The Galactic Sports program is for children ages 6-13. The activities are designed for beginners to gain confidence in the sport. Logistics: The program consists of three program cycles throughout the school year. Each cycle lasts 10 weeks and focuses on a different sport: Basketball, Track & Field, and Soccer. Results/Testimonial: The program evaluation consists of pre- and post- scientifically validated surveys measuring changes in attitudes, knowledge, skill, and self -efficacy. Sport Week Athletic Skill Sports Value Topic 1 Dribbling Positive Attitude Launch (HG Intro) 2 Footwork Citizenship Rules of the Game 3 Review Empathy Review Planets & Rules 4 Passing Responsibility Healthy Eating Soccer 5 Shooting/GK Integrity Sports & PA 6 Review Balance Review HE & PA 7 Assist/Rebounding Respect Sleep 8 Defense/Offense Confidence Emotional Well-being 9 Review Delivery Review SLP & EMO 10 Scrimmage Teamwork Summary EXHIBIT A Sport Week Athletic Skill Sports Value Topic 1 Skip Drills Positive Attitude Launch (HG Intro) 2 Plyometric Training Citizenship Rules of the Game 3 Review Empathy Review Planets & Rules 4 Speed Work Responsibility Healthy Eating Track & Field 5 Strength Training Integrity Sports & PA 6 Review Balance Review HE & PA 7 Mobility Respect Sleep 8 Footwork Confidence Emotional Well-being 9 Review Delivery Review SLP & EMO 10 Racing Teamwork Summary Sport Week Athletic Skill Sports Value Topic 1 Dribbling Positive Attitude Launch 2 Footwork Citizenship Rules of the Game 3 Review Empathy Healthy Galaxy 4 Passing Responsibility Diet Basketball 5 Shooting Integrity Physical Activity 6 Review Balance Diet & Physical Activity 7 Rebounding Respect Sleep 8 Defense/Offense Confidence Emotional Well -Being 9 Review Delivery Sleep & Emotional Well -Being 10 Summary Teamwork Scrimmage EXHIBIT A SUMMER 2023 6-WEEK PROGRAM The ENERGY (Educating, Nutrition, Exercise, Rest and Goodness to Youth) Healthy Summer Camp program complements existing day camp programming. Coinciding with the shorter timeframe of summer programming, ENERGY promotes healthy habits such as diet, physical activity, sleep, and emotional well-being. Audience: ENERGY is for children ages 6-13 who participate in a day camp program. Logistics: The program is delivered over six weeks. Gasol Foundation trains camp counselors to lead health promoting activities with campers through the week and delivers a wellness workshop at the end of the week. Sessio n Topic Description 1 Launch Introduce the Healthy Habits 2 Diet The basics of nutrition such as drinking water, the food groups, and understanding food labels 3 Sports & Physical Activity Incorporate physical activity into everyday life 4 Sleep Importance of proper sleep and how it relates to children's health and growth 5 Emotional Well -Being Connections between emotional well-being and health 6 Celebration Review and celebrate learning healthy habits Results/Testimonial: The program evaluation is through pre- and post- scientifically validated surveys measuring changes in attitudes, knowledge, skill, and self-sufficiency. Over half of the children who participated in the ENERGY program have strengthened their healthy habits. Also, 100% of the camp counselors reported that they would recommend the program to others and would repeat the program at their location.