HomeMy WebLinkAboutFit Coach 2 Go LLC - Fitness Services for Police DepartmentPERSONAL SERVICES AGREEMENT
FIT COACH 2 GO LLC
THIS AGREEMENT is made and entered into between the City of Pasco, a Washington
Municipal Corporation, hereinafter referred to as "City", and Fit Coach 2 Go LLC., hereinafter
referred to as "Contractor," on the day of def -TI , 2021.
RECITALS
WHEREAS, the City desires to have certain services and/or tasks performed as set forth
below requiring specialized skills, training, equipment, and other supportive capabilities; and
WHEREAS, the Contractor represents that it is qualified and possesses sufficient skills,
experience, equipment, and necessary capabilities, including: technical and professional expertise,
when required, to perform the services and/or tasks as set forth in this Agreement upon which the
City is relying.
NOW, THEREFORE, in consideration of the mutual covenants, and performances
contained herein, the parties agree as follows:
1. Scope of Services. The Contractor shall perform such services and accomplish such tasks,
including the furnishing of all labor, materials, facilities and equipment necessary for full
performance thereof, as identified and designated as Contractor's Responsibilities
throughout this Agreement, and as more particularly described in Scope of Work detailed
in Exhibit A, attached hereto and incorporated herein (the "Project").
2. Term. The Term of this contract will be one (1) year from the execution date. Upon mutual
written agreement of both parties, this contact can be extended for two (2) additional years.
3. Compensation and Payment.
3.1 Payment for services provided hereunder shall be made following the performance
of such services. Such payment shall be full compensation for work performed or
services rendered, and for all labor, materials, supplies, equipment, and incidentals
necessary to complete the Project.
3.2 No payment shall be made for any services rendered by the Contractor except for
services identified and set forth in this Agreement except as may be authorized by
a written supplemental agreement approved by the City.
3.3 The City shall pay the Contractor for work performed under this Agreement upon
timely submitted invoices detailing work performed and expenses for which
reimbursement is sought. The City shall approve all invoices before payment is
issued. Payment shall occur within thirty (30) days of receipt and approval of an
invoice.
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3.4 The City shall pay the Contractor for all work performed and expenses incurred
under this Agreement, as follows.
9 Monthly Service Charge: $1100.00. Not to exceed a total of $13,200.00
without the prior written authorization by the City. See Exhibit A for the
breakdown in fee schedule.
4. Reports and Inspections.
4.1 The Contractor at such times and in such forms as the City may require, shall
furnish to the City such statements, records, studies, surveys, reports, data, and
information as the City may request pertaining to matters covered by this
Agreement.
4.2 The Contractor shall, at any time during normal business hours and as often as the
City or the Washington State Auditor may reasonably deem necessary, make
available for examination all of its records and data with respect to all matters
covered, directly or indirectly, by this Agreement and shall permit the City, or its
designated authorized representative to audit and inspect other data relating to all
matters covered by this Agreement. The City shall receive a copy of all audit
reports made by the agency or firm as to the Contractor's activities. The City may,
at its discretion, conduct an audit at its expense, using its own or outside auditors,
of the Contractor's activities which relate, directly or indirectly, to this Agreement.
Contractor shall be provided a copy of such reports.
4.3 The Contractor, during the term of this Agreement, shall obtain all permits and
registration documents necessary for the performance of its work and for the
execution of services at its own expense, and shall maintain its validity. Upon
request, the Contractor shall deliver to the City copies of these licenses, registration
documents, and permits or proof of their issuance or renewal.
4.4 Contractor shall maintain books, records and documents, which sufficiently and
properly reflect all direct and indirect costs related to the performance of this
Agreement, and shall maintain such accounting procedures and practices as may be
necessary to assure proper accounting of all funds paid pursuant to this Agreement.
These records shall be subject, at all reasonable times, to inspection, review, or
audit as provided above.
4.5 The Contractor shall retain all books, records, documents or other material relevant
to this Agreement for three (3) years after its expiration. Contractor agrees that the
City, or its designee, shall have full access and right to examine any of said
materials at all reasonable times during this period.
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5. Ownership and Use of Documents.
5.1 All research, tests, surveys, preliminary data, information, drawings and documents
made, collected, or prepared by the Contractor for performing the services subject
to this Agreement, as well as any final product, collectively referred to as "work
product," shall be deemed as the exclusive property of the City, including copyright
as secured thereon. Contractor may not use them except in connection with the
performance of the services under this Agreement or with the prior written consent
of the City. Any prior copyrighted materials owned by the Contractor and utilized
in the performance of the services under this Agreement, or embedded in with the
materials, products and services provided thereunder, shall remain the property of
the Contractor subject to a license granted to the City for their continued use of the
products and services provided under this Agreement. Any work product used by
the Contractor in the performance of these services which it deems as
"confidential," "proprietary," or a "trade secret" shall be conspicuously designated
as such.
5.2 In the event of Contractor's default, or in the event that this Agreement is
terminated prior to its completion, the Contractor's work product, along with a
summary of the services performed to date of default or termination, shall become
the property of the City, and tender of the work product and summary shall be a
prerequisite to final payment under this Agreement. The summary of services
provided shall be prepared at no additional cost, if the Agreement is terminated
through default by the Contractor. If the Agreement is terminated through
convenience by the City, the City agrees to pay Contractor for the preparation of
the summary of services provided.
6. Public Records.
6.1 Contractor acknowledges that the City is an agency subject to Chapter 42.56 RCW
"Public Records Act." All preliminary drafts or notes prepared or gathered by the
Contractor, and Contractor recommendations are exempt prior to the acceptance by
the City or public citation by the City in connection with City action.
6.2 If the Contractor becomes a custodian of public records of the City and request for
such records is received by the City, the Contractor shall respond to the request by
the City for such records within five (5) business days by either providing the
records, or by identifying in writing the additional time necessary to provide the
records with a description of the reasons why additional time is needed. Such
additional time shall not exceed twenty (20) business days unless extraordinary
good cause is shown.
6.3 In the event the City receives a public records request for Contractor protected work
product within its possession, the City shall, prior to the release of any protected
work product or as a result of a public records request or subpoena, provide
Contractor at least ten (10) business days prior written notice of the pending release
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and to reasonably cooperate with any legal action which may be initiated by the
Contractor to enjoin or otherwise prevent such release.
7. Independent Contractor Relationship.
7.1 The parties intend that an independent contractor relationship is created by this
Agreement. The City is interested primarily in the results to be achieved; subject
to the scope of services and the specific requirements of this Agreement, the
implementation of services will lie solely with the discretion of the Contractor. No
agent, employee, officer or representative of the Contractor shall be deemed to be
an employee, agent, officer, or representative of the City for any purpose, and the
Contractor employees are not entitled to any of the benefits or privileges the City
provides for its employees. The Contractor will be solely and entirely responsible
for its acts and for the acts of its agents, employees, officers, subcontractors or
representatives during the performance of this Agreement.
7.2 In the performance of the services provided in this Agreement, Contractor is an
independent contractor with full authority to control and direct the performance of
the details of the work, however, the results of the work contemplated herein must
meet the approval of the City and shall be subject to the City's general rights of
inspection and review to secure the satisfactory completion thereof.
7.3 The Contractor shall comply with all State and Federal laws including, but not
limited to:
7.3.1 The definition requirements of RCW 50.04.140 (Employment Security).
7.3.2 RCW 51.08.195 (Industrial Insurance).
7.3.3 Obtain a City of Pasco business license.
7.4 The City may, at its sole discretion, require the Contractor to remove any employee,
agent or servant from employment on this Project who, in the City's sole discretion,
may be detrimental to the City's interest.
8. Indemnification.
8.1 The Contractor shall defend, indemnify, and hold harmless the City, its officers,
officials, employees, and volunteers harmless from any and all claims, injuries,
damages, losses or suits including attorney fees, arising out of or resulting from the
Contractor's acts, errors or omissions in performance of this Agreement, except for
injuries and damages caused by the sole negligence of the City.
8.2 However, should a court of competent jurisdiction determine that this Agreement
is subject to RCW 4.24.115, 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
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Contractor's concurrent negligence, and the City, its officers, officials, employees,
and volunteers, the Contractor's liability, including the duty and cost to defend,
hereunder shall be only to the extent of the Contractor's negligence. It is further
specifically and expressly understood that the indemnification provided herein
constitutes the Contractor's waiver of immunity under Industrial Insurance, Title
51 RCW, solely for purposes of this indemnification. This waiver has been
mutually negotiated by the parties. The provisions of this section shall survive the
expiration or termination of this Agreement.
8.3 No liability shall attach to the City by reason of entering into this Agreement except
as expressly provided herein.
8.4 This indemnification shall include damages, penalties and attorney fees sustained
as a result of Contractor's delayed or failed performance of Section 6 above.
9. Insurance. The Contractor shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise
from or in connection with the Contractor's performance of the work hereunder by the
Contractor, its agents, representatives, employees, or subcontractors. The Contractor's
maintenance of insurance as required by the Agreement shall not be construed to limit the
Contractor's liability to the coverage provided by such insurance, or otherwise limit the
City's recourse to any remedy available at law or in equity.
9.1
9.2
Minimum Scope of Insurance. Contractor shall obtain insurance of the types and
coverage described below:
9.1.1 Automobile Liability insurance covering all owned, non -owned, hired and
leased vehicles. Coverage shall be at least as broad as Insurance Services
Office (ISO) form CA 00 01.
9.1.2 Commercial General Liability insurance shall be at least as broad as ISO
occurrence form CG 00 01 and shall cover liability arising from premises,
operations, stop -gap independent contractors and personal injury and
advertising injury. The City shall be named as an additional insured under
the Contractor's Commercial General Liability insurance policy with
respect to the work performed for the City using an additional insured
endorsement at least as broad as ISO endorsement form CG 20 26.
9.1.3 Workers' Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
Minimum Amounts of Insurance. Contractor shall maintain the following
insurance limits:
9.2.1 Automobile Liability insurance with a minimum combined single limit for
bodily injury and property damage of $1,000,000 per accident.
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9.2.2 Commercial General Liability insurance shall be written with limits no less
than:
® $2,000,000 each occurrence; and
® $2,000,000 general aggregate;
9.3 Other Insurance Provision. The Contractor's Automobile Liability, and
Commercial General Liability insurance policies are to contain, or be endorsed to
contain that they shall be primary insurance as respect the City. Any insurance, self-
insurance, or self-insured pool coverage maintained by the City shall be excess of
the Contractor's insurance and shall not contribute with it.
9.3.1 The Contractor's insurance shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty (30) days prior written notice
by certified mail, return receipt requested, has been given to the City.
9.4 Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best rating of not less than A: VII.
9.5 Verification of Coverage. Contractor shall furnish the City with original
certificates and a copy of the amendatory endorsements, including, but not
necessarily limited to, the additional insured endorsement, evidencing the insurance
requirements of the Agreement before commencement of the work.
9.6 Notice of Cancellation. The Contractor shall provide the City with written notice
of any policy cancellation within two (2) business days of their receipt of such
notice.
9.7 City Full Availability of Contractor Limits. If the Contractor maintains higher
insurance limits than the minimums shown above, the City shall be insured for the
full available limits of Commercial General and Excess or Umbrella liability
maintained by the Contractor, irrespective of whether such limits maintained by the
Contractor are greater than those required by this Agreement or whether any
certificate of insurance furnished to the City evidences limits of liability lower than
those maintained by the Contractor.
9.8 Failure to Maintain Insurance. Contractor's failure to maintain the insurance as
required shall constitute a material breach of contract, upon which the City may,
after giving five (5) business days' notice to the Contractor to correct the breach,
immediately terminate the Agreement or, at its discretion, procure or renew such
insurance and pay any and all premiums in connection therewith, with any sums so
expended to be repaid to the City on demand, or at the sole discretion of the City,
offset against funds due the Contractor from the City.
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10. Nondiscrimination. In the performance of this Agreement, the Contractor will not
discriminate against any employee or applicant for employment on the grounds of race,
creed, color, national origin, sex, marital status, age or the presence of any sensory, mental
or physical handicap; provided that the prohibition against discrimination in employment
because of handicap shall not apply if the particular disability prevents the proper
performance of the particular worker involved. The Contractor shall ensure that applicants
are employed, and that employees are treated during employment in the performance of
this Agreement without discrimination because of their race, creed, color, national origin,
sex, marital status, age or the presence of any sensory, mental or physical handicap.
Contractor shall take such action with respect to this Agreement as may be required to
ensure full compliance with local, State and Federal laws prohibiting discrimination in
employment.
11. Covenant Against Contingent Fees. The Contractor warrants that it has not employed
nor retained any company, firm, or person, other than a bona fide employee working
exclusively for the Contractor, to solicit or secure this Agreement; and that it has not paid
or agreed to pay any company, person or firm, other than a bona fide employee working
exclusively for the Contractor, any fee, commission, percentage, brokerage fee, gift, or
other consideration contingent upon or resulting from the award or making of this
Agreement. For breach or violation of this warranty, the City shall have the right to
terminate this Agreement.
12. Assignment and Subcontracting.
12.1 The City has awarded this Agreement to the Contractor due to its unique
qualifications to perform these services. The Contractor shall not assign (or
subcontract other than as specifically identified in Exhibit A) its performance under
this Agreement or any portions of this Agreement without the prior written consent
of the City, which consent must be sought at least thirty (30) days prior to the date
of any proposed assignment.
12.2 Any work or services assigned or subcontracted hereunder shall be subject to each
provision of this Agreement including Section 6, Public Records; Section 10,
Nondiscrimination; proper bidding procedures where applicable; and all local, State
and Federal statutes, ordinances and guidelines.
12.3 Any technical or professional service subcontract not listed in this Agreement, must
have prior written approval by the City.
13. Termination.
13.1 Termination for Convenience. Either party may terminate this Agreement for any
reason upon giving the other party no less than thirty (30) business days written
notice in advance of the effective date of such termination.
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14.
15.
13.2 Termination for Cause. If the Contractor fails to perform in the manner called for
in this Agreement, or if the Contractor fails to comply with any other provisions of
this Agreement and fails to correct such noncompliance within five (5) business
days of written notice thereof, the City may terminate this Agreement for cause.
Termination shall be effected by serving a notice of termination on the Contractor
setting forth the manner in which the Contractor is in default. The Contractor will
only be paid for services and expenses complying with the terms of this Agreement,
incurred prior to termination.
General Provisions.
14.1 For the purpose of this Agreement, time is of the essence.
14.2 Notice. Notice provided for in this Agreement shall be sent by:
14.2.1 Personal service upon the Project Administrators; or
14.2.2 Certified mail to the physical address of the parties, or by electronic
transmission to the e-mail addresses designated for the parties below.
14.3 The Project Administrator for the purpose of this Agreement shall be:
14.3.1 For the City:
14.3.2 For the Contractor:
Dispute Resolution.
Jeff Harpster, or his/her designee
215 Sylvester Street
Pasco, WA 99301
harpsterj (a,pasco-wa. gov
Derek Harmon, or his/her designee
4005 S Tacoma
Kennewick, WA 99337
Fitcoach2 goggmail. com
15.1 This Agreement has been and shall be construed as having been made and entered
into and delivered within the State of Washington and it is agreed by each party
hereto that this Agreement shall be governed by the laws of the State of
Washington.
15.2 In the event of a dispute regarding the enforcement, breach, default, or
interpretation of this Agreement, the Project Administrators, or their designees,
shall first meet in a good faith effort to resolve such dispute. In the event the dispute
cannot be resolved by agreement of the parties, said dispute shall be resolved by
arbitration pursuant to RCW 7.04A, as amended, with both parties waiving the right
of a jury trial upon trial de novo, with venue placed in Pasco, Franklin County,
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Washington. The substantially prevailing parry shall be entitled to its reasonable
attorney fees and costs as additional award and judgment against the other.
16. Nonwaiver. Waiver by the City of any provision of this Agreement or any time limitation
provided for in this Agreement shall not constitute a waiver of any other similar event or
other provision of this Agreement.
17. Integration. This Agreement between the parties consists in its entirety of this document
and any exhibits, schedules or attachments. Any modification of this Agreement or change
order affecting this Agreement shall be in writing and signed by both parties.
18. Authorization. By signature below, each party warrants that they are authorized and
empowered to execute this Agreement binding the City and the Contractor respectively.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date first written above.
CITY OF PASCO, WASHINGTON
Ken Roske, Chief of Police
ATTEST:
L
Debra C. Barham, City Clerk
APPROVED AS TO FORM:
ty Attorney
CONTRACTOR
Derek Harmon, Fit Coach 2 Go LLC
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