AGR-4136.G - ACE 5 ON 5 LLCST
AG R-4136.G
ADULT BASKETBALL PROGRAM SERVICES AGREEMENT
THIS ADULT BASKETBALL PROGRAM SERVICES AGREEMENT (the
Agreement") is made at Orange, California, as of November 7, 2022 2022 ("Effective
Date")by and between the CITY OF ORANGE, a municipal corporation("City") and ACE 5 ON
5,LLC, a California limited liability company ("Contractor"), who agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
Adult Basketball Program Season" shall mean a 10 to 12 week period during each
calendar quarter of a year.
Basketball Program Assigning Services" shall mean the referee and scorekeeper
assigning services to be provided by Contractor and the responsibilities of Contractor,as described
in Exhibit "A"of this Agreement.
Gymnasium" shall mean the Gymnasium/Sports Center at Grijalva Park located at 368
N. Prospect in the City of Orange, which is owned and operated by City.
League Coordinator" shall mean Joe Avila, Recreation Services Coordinator or other
City designee.
2. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City,the services set forth in Exhibit"A,"
which is attached hereto and incorporated herein by this reference. As a material inducement to
City to enter into this Agreement, Contractor represents and warrants that it has thoroughly
investigated and considered the scope of services and fully understands the difficulties and
restrictions in performing the work. The services which are the subject of this Agreement are not
in the usual course of City's business and City relies on Contractor's representation that it is
independently engaged in the business of providing such services and is experienced in performing
the work. All services provided shall conform to all federal, state and local laws, rules and
regulations and to the best and highest professional standards and practices. The terms and
conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A"
to the contrary.
City's Director of Community Services ("City's Authorized Representative") shall be the
person to whom Contractor will report for the performance of services hereunder. It is understood
that Contractor's performance hereunder shall be under the direction and supervision of City's
Authorized Representative (or designee), that Contractor shall coordinate its services hereunder
with City's Authorized Representative to the extent required by City's Authorized Representative,
and that all performances required hereunder by Contractor shall be performed to the satisfaction
of City's Authorized Representative and the City Manager.
3. Term and Time of Completion. The term of this Agreement shall commence
on October 1, 2022 and shall terminate at the conclusion of the last Adult Basketball Program
Season in 2025. Contractor agrees to commence the work provided for in this Agreement within
five(5)days of the Effective Date and to diligently prosecute completion of the work in accordance
with the time period set forth in Exhibit "A" or otherwise agreed to by and between the
respresentatives of the parties.
4. Compensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement,shall not exceed TWENTY-NINE THOUSAND DOLLARS and 00/100($29,000.00)
without the prior written authorization of City.
b. The above fee shall include all costs, including, but not limited to, all
clerical, administrative, overhead, insurance, reproduction, telephone, travel, and all related
expenses.
c.Fees shall be calculated and billed as set forth in Exhibit"A".
5. Payment.
a. At the end of each Adult Basketball Program Season, Contractor shall
submit to City an invoice for the services completed.
b. All such invoices shall state the basis for the amount invoiced,including the
number of games, dates, scorekeepers and referees.
c.City will pay Contractor the amount invoiced within thirty (30) days after
the approval of the invoice.
d. Payment shall constitute payment in full for all services covered by that
invoice.
6. Change Orders. No payment for extra services caused by a change in the scope
or complexity of work, or for any other reason, shall be made unless and until such extra services
and a price therefor have been previously authorized in writing and approved by City as an
amendment to this Agreement. The amendment shall set forth the changes of work, extension of
time, and adjustment of the compensation to be paid by City to Contractor.
7. Licenses. Contractor represents that it and any subcontractors it may engage
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and subcontractors, if any, shall maintain all
appropriate licenses, including a City of Orange business license, at its cost, during the
performance of this Agreement.
8. Independent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent contractor and not an employee of City. City shall have the
right to control Contractor only insofar as the result of Contractor's services rendered pursuant to
this Agreement. City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Except for the. Gymnasium,
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Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment that
may be required for furnishing services pursuant to this Agreement. Contractor shall be solely
responsible for, and shall indemnify, defend and save City harmless from all matters relating to
the payment of its scorekeepers, referees, subcontractors, agents and employees, including
compliance with social security, withholding and all other wages, salaries, benefits, taxes,
exactions, and regulations of any nature whatsoever. Contractor acknowledges that Contractor
and any scorekeepers,referees, subcontractors, agents,or employees employed by Contractor shall
not, under any circumstances, be considered employees of City, and that they shall not be entitled
to any of the benefits or rights afforded employees of City,including,but not limited to, sick leave,
vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental,
long-term disability or workers' compensation insurance benefits.
9. Contractor Not Agent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
10. Assignment or Subcontracting. No assignment or subcontracting by Contractor
of any part of this Agreement or of funds to be received under this Agreement shall be of any force
or effect unless the assignment has had the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall
do all things necessary and incidental to the prosecution of Contractor's work.
12. Equal Employment Opportunity. During the performance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin, mental or physical disability, or
any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion,
sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include,but not be limited to the following: employment, upgrading,demotion
or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms
of compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
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c.Contractor shall cause the foregoing Subsections (a) and (b) to be inserted
in all subcontracts for any work covered by this Agreement,provided that the foregoing provisions
shall not apply to subcontracts for standard commercial supplies or raw materials.
13. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a contractor to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a financial interest as defined in Section 87103 of the Government Code.
Contractor further agrees that it shall not be eligible to work as the design/build firm for the project
that is the subject of this Agreement.
14. Indemnity.
a. To the fullest extent permitted by law, Contractor agrees to indemnify,
defend and hold City, its City Council and each member thereof, and the officers, officials, agents
and employees of City (collectively the "Indemnitees") entirely harmless from all liability arising
out of:
1) Any and all claims under worker's compensation acts and other
employee benefit acts with respect to Contractor's employees or subcontractor's employees
arising out of Contractor's work under this Agreement; and
2) Any claim, loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission other than a professional act or omission of
Contractor, or person, firm or corporation employed by Contractor, either directly or by
independent contract, including all damages due to loss or theft sustained by any person, firm or
corporation including the Indemnitees, or any of them, arising out of, or in any way connected
with the work or services which are the subject of this Agreement, including but limited to, loss,
injury, death or damage caused by the active negligence or willful misconduct of City either on or
off City's property, and any claims of copyright,patent or music infringement in connection with
playing any music or the copying and/or distribution of any rule books or other publications
not generated by Contractor or City. Contractor, at Contractor's own expense, cost and risk, shall
indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay
or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any
action, suit or other proceedings as a result of coverage under this subparagraph.
b. Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity that is not a signatory to this Agreement.
c.The indemnities set forth in this section shall survive any closing,
rescission, or termination of this Agreement, and shall continue to be binding and in full force and
effect in perpetuity with respect to Contractor and its successors.
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15. Insurance.
a. Contractor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Contractor understands it is
an independent contractor and not entitled to any worker's compensation benefits under any City
program.
b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover
bodily injury, death and property damage and be written on an occurrence basis.
c.Contractor shall maintain during the life of this Agreement, automotive
liability insurance in no less than the minimum limits required by law.
d. Any insurance proceeds in excess of or broader than the minimum required
coverage and/or minimum required limits applicable to a given loss shall be available to City. No
representation is made that the minimum insurance requirements of this Agreement are sufficient
to cover the obligations of Contractor under this Agreement.
e.Each policy of general liability and automotive liability shall provide that
City, its officers, officials, agents, and employees are declared to be additional insureds under the
terms of the policy, but only with respect to the work performed by Contractor under this
Agreement. A policy endorsement to that effect shall be provided to City along with the certificate
of insurance, which endorsement shall be on Insurance Services Office, Inc. Form CG 20 10 10
01. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences City is
an additional insured as a contracting party. The minimum coverage required by Subsection 15(b)
and(c), above, shall apply to City as an additional insured.
f.The insurance policies maintained by Contractor shall be primary insurance
and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
g. Before Contractor performs any work or prepares or delivers any materials,
Contractor shall furnish certificates of insurance and endorsements, as required by City,
evidencing the aforementioned minimum insurance coverages on forms acceptable to City, which
shall provide that the insurance in force will not be canceled or allowed to lapse without at least
ten (10) days' prior written notice to City.
h. All insurance maintained by Contractor shall be issued by companies
admitted to conduct the pertinent line of insurance business in California and have a rating of
Grade A- or better and Class VII or better by the latest edition of Best's Key Rating Guide.
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i.Contractor shall immediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Contractor.
j.Contractor agrees that in the event of loss due to any of the perils for which
it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor
or City with respect to the services of Contractor herein, a waiver of any right to subrogation which
any such insurer may acquire against City by virtue of the payment of any loss under such
insurance.
k. Contractor shall include all subcontractors, if any, as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor to City for
review and approval. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
16. Termination.
a. Termination Without Cause. Either Party shall have the right to terminate
this Agreement effective at the end of any Adult Basketball Program Season for any reason upon
not less than ninety (90) days'written notice of intent to terminate,or such other time as the parties
may mutually agree upon. Upon receipt of such notice, Contractor shall immediately cease work
upon the effective date of the termination, unless the notice from City provides otherwise. Upon
the termination of this Agreement, City shall pay Contractor for services satisfactorily provided
and all allowable reimbursements incurred to the date of termination in compliance with this
Agreement, unless termination by City shall be for cause, in which event City may withhold any
disputed compensation. City shall not be liable for any claim of lost profits.
b. Additional City Right to Terminate. At the option of City,and upon written
notice to Contractor, City shall have the right to terminate this Agreement, in whole or in part for
any of the following reasons:
1) Default by Contractor. In the event of default by Contractor, City
shall give written notice to Contractor of such default. Contractor shall have thirty (30 days), or
such period of time as stated in the declaration of default, to cure such default. If such default is
not cured, City may terminate this Agreement.
2) Upon such time as Contractor becomes insolvent, is declared
bankrupt,makes an assignment for benefit of its creditors, elects to wind up and dissolve,or loses
its status as a corporation,unless consented to in writing by City.
3) To the extent necessary to protect the welfare, health, safety or
morals of the people of the City,in the sole discretion of City.
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c. Force Majeure. If the performance by either Party under this Agreement is
delayed or prevented in whole or in part by a Force Majeure, such Party shall be excused,
discharged and released of performance to the extent such performance or obligation is so delayed
or prevented by such occurrence without liability of any kind. Nothing contained herein shall be
construed as requiring any party to accede to any demands or to settle disputes with labor or labor
unions, suppliers or other parties that such party considers unreasonable.
17. Maintenance and Inspection of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and
complete books, documents, papers, accounting records, and other information (collectively, the
records")pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce
any of Contractor's records regarding the services provided under this Agreement. Contractor shall
maintain all such records for a period of at least three (3) years after termination or completion of
this Agreement. Contractor agrees to make available all such records for inspection or audit at its
offices during normal business hours and upon three(3)days' notice from City, and copies thereof
shall be furnished if requested.
18. Compliance with all Laws/Immigration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. Contractor represents and warrants that Contractor:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form I-9 for each of Contractor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form 1-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
c.Contractor shall require all subcontractors to make the same representations
and warranties as set forth in Subsection (b).
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d. Contractor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the reasonable satisfaction of City,verification
that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Contractor. Once such request has been made, Contractor may not
change employees working under this Agreement without written notice to City, accompanied by
the verification required herein for such employees.
e.Contractor shall require all subcontractors to make the same verification as
set forth in Subsection (d).
f. . If Contractor or subcontractor knowingly employs an employee providing
work under this Agreement who is not authorized to work in the United States, and/or fails to
follow federal laws to determine the status of such employee,that shall constitute a material breach
of this Agreement and may be cause for immediate termination of this Agreement by City.
g. Contractor agrees to indemnify and hold City, its officials, and employees
harmless for, of and from any loss, including but not limited to fines, penalties and corrective
measures, City may sustain by reason of the Contrator's failure to comply with said laws,rules and
regulations in connection with the performance of this Agreement.
19. Governing Law and Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of California and Contractor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
20. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties. Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
21. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class mail, postage
prepaid, to each party at the address listed below. Either party may change the notice address by
notifying the other party in writing. Notices shall be deemed received upon receipt of same or
within (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be
deemed received on the date of the e-mail transmission.
CONTRACTOR" CITY"
Ace 5 on 5,LLC City of Orange
P.O. Box 6052 300 E. Chapman Avenue
Orange, CA 92866 Orange, CA 92866-1591
Attn.: Andre Thomas Attn.: Director of Community Services
Telephone No.: 714-588-8781 Telephone No.: 714-744-7264
E-Mail Address: Ace5on5@gmail.com E-Mail Address: lhardy@cityoforange.org
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22. Counterparts. This Agreement may be executed in one or more counterparts,each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
ACE 5 ON 5,LLC, a California limited CITY OF ORANGE, a municipal corporation
liability company
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Mary E. Binning
Senior Assistant City Attorney
NOTE:The City requires the following signature(s) on behalf of the Contractor:
1) the Chairman of the Board, the President or a Vice-President, AND (2) the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or
an Assistant Treasurer. If only one corporate officer exists or one corporate
officer holds more than one corporate office,please so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter into
this Agreement. A copy of the corporate resolution, certified by the Secretary
close in time to the execution of the Agreement, must be provided to the City.
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EXHIBIT "A"
SCOPE OF BASKETBALL PROGRAM SERVICES
Responsibilities of Contractor
1. Contractor shall be responsible for providing referees and scorekeepers for each Adult
Basketball Game, as detailed herein.
2. Contractor shall manage all staffing changes (regardless of frequency) with referees and
scorekeepers at the rate per game day.This includes the responsibility of assigning,follow-
up, and correspondence.
3. Contactor shall notify City of any and all injuries and/or incidents and shall document such
incident on forms provided by City and Contractor.
4. Contractor shall notify City of any damage, hazard, and/or broken item(s) within the
Gymnasium.
Scheduling Games
1. Contractor shall forward a complete schedule via www.arbitersports.com or other
designated website, to City for approval.
2. Contractor shall promptly communicate with League Coordinator via email and/or phone
for changes, approvals, and/or updates.
3. City shall give no fewer than three days advance notice of additional games, multiple
games.
4. City shall give no less than 24 hours advance notice of additional games on previously
scheduled night play.
Staffing and Responsibilities of Referees and Scoreboard
1. Referees
Contractor shall recruit, hire, discharge, train, supervise pay, coordinate and
evaluate a sufficient number of referees who have been CIF/NCAA certified to staff
all Adult Basketball games at the Gymnasium.
Contractor shall assign CIF/NCAA certified officials for each game.
Contractor shall ensure that referees are dressed in an official uniform,with whistle,
to officiate the games.
From time to time as requested by City, Contractor will make available to City
copies of Contactor's evaluation of referees used by Contractor for the performance
of the services to be provided by Contactor under this agreement.
2. Scorekeepers
Contractor shall recruit, hire, discharge, train, supervise, pay, coordinate and
evaluate a sufficient number of scorekeepers who have been trained by the
Contractor to staff all Adult Basketball Games at the Gymnasium.
Contractor shall assign scorekeepers for each game.
City shall provide table, chair, and score book for each game.
The scorekeeper shall perform the following:
o Greet the teams with their respective paperwork.
o Communicate with Contractor of promptness of referees.
o Answer questions and relay important league information to team captains.
o Record scores and basic statistics.
o Service as liaison between the League Coordinator,on site facility staff, and
referees.
o Assist/clarify league rules with referees and players.
o Submit a hard copy of scores and paperwork to designated City
Representatives.
o Verbally communicate with City Staff when ejection occurs during league
play and note it on the score sheet.
3. General Standards
All referees and scorekeepers shall be satisfactory to City as to their personal conduct,honesty,
courtesy, health, personal appearance, and willingness to cooperate with City. In the event a
scorekeeper or referee is not satisfactory,as herein defined,City may furnish a written directive
to Contractor to correct the cause of its dissatisfaction. If Contractor does not correct said
problem to the satisfaction of City within thirty (30) days after said written directive is
received, City may furnish a subsequent written notice to Contractor requiring that said
employee be excluded from providing further services to City. Contractor agrees to cause its
referees to strictly enforce the rules of the games on the basis of the National Federation High
School rulebook, as the same may be amended from time to time.
4. Supervision by Referees/Scorekeepers
Contractor agrees that its referees and/or scorekeepers will exercise the right to exclude Adult
Basketball Program participants who do not abide by established rules. Contractor agrees that
its referees and/or scorekeepers will use their reasonable best efforts to prohibit intoxicated
persons, profane or indecent language, or boisterous or loud conduct in or about the
Gymnasium and will call upon the aid of on-site facility staff or peace officers to assist in
maintaining peaceful conditions.
Billing,Assigning and Officials Fees
1. Billing
Contractor shall not bill the City for any changes made by referees or scorekeepers
calling in sick, schedule conflicts, etc.)
2. Assigning and Officials Fees
City shall pay the Contractor for the officials fees per game for each Referee,
Scorekeeper, and Assigner as follows:
o $30 per game, per Referee
o $16 per game, per Scorekeeper
o $13 per game to Assigner