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HomeMy WebLinkAboutPinnacle Training Systems - Wellness Services AgrmtTI-IE SC¡ENTIFIC APPROACH TO YÕUR SUCCESS WELLNESS SERVICES AGREEMENT This Wellness Service_sAgreement (the "Agreement") is effective_September 29,2OiS by and between PINNACLE TRAINING SYSTEMS, LLC ("PTS"), a company organized and existing underihe laws of the state of California, having an office located at726 W. Barstow Ave, #116, Fresno, CA g3704 and the City of Fresno (the "CLIENT") located at and/or having a correspondence address of: _2600 Fresno St. Fresno, CA93721 PTS and the CLIENT are at times herein collectively referred to as the "Parties," or individually, as a"Party." RECITALS 1. The CLIENT wishes to retain PTS to provide certain worksite wellness services related to and/or described as a "Worksite Wellness Program" on the terms and conditions hereinafter set forth. 2. PTS wishes to provide such services to the CLIENT on such terms and conditions. NOW THEREFORE in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: ,1. SERVICES TO BE PROVIDED a) PTS agrees to provide to the CLIENT the wellness/fitness services set forth in Schedule "4," which is attached hereto and made a part of this Agreement (the "services"). b) PTS agrees and undertakes to perform the Services in a timely fashion with the skill, competence and diligence commensurate with the standards in the wellness industry. 2. COMPENSATION AND INCENTIVES a) The CLIENT shall pay PTS for the Services, in accordance with the terms set forth in Schedule "8," which is attached hereto and made a part of this Agreement. b) lncentives shall be paid by the CLIENT and/or PTS in accordance with the terms set forth in Schedule "C," which is attached hereto and made a part of this Agreement. 3. TERM AND TERMINATION a) The initial term of this Agreement ("Term") shall be for a period of _12_weeks/mon!þ [circle one] beginning on _March 29 _, 2016_, and ending on March 28, 2017_ unless terminated earlier in accordance with the provisions herein. The Term may be extended by written agreement of the Parties. b) This Agreement may be terminated by either Party upon the occurrence of an event of default, given five (5) days written notice of the default to the other Party. lf the default is not cured within the five-day notice period, this Agreement will terminate and any and all fees owed to PTS, up and through the termination date will be immediately due and payable. Each of the following constitutes an event of default for the purposes of this Agreement: i. breach of this Agreement (including but not limited to non-performance and/or inability to perform), and $:hP*tlßq,çlÊ 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 5l-5-3578 T1-IË SCIENTIFIO APPROACH TO YOUR SUCCISS ii. insolvency of CLIENT or PTS (including but not limited to bankruptcy). CLIENT agrees that CLIENT shall not be entitled to terminate this Agreement during the initial term, except in the event of default by PTS as described in paragraph 3 b) above. PTS may terminate this agreement for any reason giving ten (10) days written notice to CLIENT, and CLIENT shall pay PTS for all Services rendered up and through the date of termination, in accordance with the payment terms set forth in Schedule B. Upon request at the termination of this Agreement, CLIENT shall return to PTS all confidential data embodied or recorded in tangible form, which is in its possession. CLIENT expressly grants PTS permission to use the results of the Worksite Wellness Program for marketing, advertising, research, educational and/or other business purposes, so long as the identity of any individual participating in the program is not disclosed and/or cannot reasonably be determined or associated with the use or PTS obtains the written consent of the individual to disclose his or her identity. STATUS a) lt is understood and agreed that this is an agreement for the performance of services and that the relationship of the Parties to each other is that of independent contractors. This Agreement shall not be deemed to create a joint venture, partnership, principal-agent, employer-employee, or similar relationship between PTS and CLIENT. b) PTS and CLIENT shall comply with all applicable statutes, ordinances and regulations of the State of California and the Unites States governing the performance of the Services. CONFIDENTIALITY "Confidential lnformation" shall mean any proprietary or non-public Confidential lnformation or materials which are owned or controlled by the Disclosing Party, both of which are disclosed under the following terms and conditions. "Disclosing Party" shall mean the party revealing or disclosing the Confidential lnformation. "Recipient" shall mean the party receiving the Confidential lnformation. a) The Parties shall not disclose or divulge to any person or entity, except as provided below, any Confidential lnformation which either Party may reveal under this Agreement and shall not use said Confidential lnformation in any manner whatsoever, directly or indirectly, except as expressly permitted herein and solely in connection with the Worksite Wellness Program. The parties shall protect the confidentiality of and take all reasonable steps to prevent disclosure or unauthorized use of the Confidential lnformation. b) Each Party shall have the right to disclose the Confidential lnformation to its officers, directors, employees, agents, subcontractors and consultants for the purposes authorized herein. Each Party shall, prior to disclosing the Confidential lnformation or portion thereof to any such person, issue appropriate instructions to them to ensure that such persons are aware of their obligation to comply with the confidentiality and use obligations and restrictions contained in this Agreement. Each Party shall have the right to disclose Confidential lnformation as required by law. c) The Recipient shall advise the Disclosing Party in writing in the event the Recipient becomes aware of any unauthorized dissemination, misappropriation, or misuse of Confidential lnformation by the Recipient and provide assistance to Disclosing Party to mitigate any damages caused thereby and to limit any further dissemination or misuse of the Confidential lnformation. d) Confidential lnformation shall not include any data or information which: c) d) 4. 5. jihRirlftsçlç 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 51-5-3578 ) ) v) v) THE SCIENTIFIC APPROACI-I TO YÛUR SUCCESS is now generally known or readily available to the trade or public or which becomes so known or readily available without fault of Recipient; is possessed by Recipient without restriction as to disclosure or use prior to its disclosure hereunder; is received independently from a third party who is free to disclose such information to the Recipient; is required as part of any court order or government regulation (provided that the Disclosing Party has been given sufficient written notice of such order or regulation to contest it); or, is developed by Recipient independent of any Confidential lnformation of Disclosing Party and which can be proven by written records. e) The provisions of paragraphs Agreement and shall continue and/or proprietary. 5.c) above shall survive the termination of this Confidential lnformation is no longer confidential 5.a) and unti the 6. INTELLECTUAL PROPERTY The CLIENT acknowledges that PTS has custom designed the Services based on its education and experience in the wellness industry. The CLIENT agrees that all work produced in the development of the Services and all work product which PTS produces in performing the Services, or any component thereof, including, but not limited to publications, reports and other materials prepared by PTS (whether or not copyrighted or patentable), shall be the property of PTS. The CLIENT acknowledges that all copyright, rights to patents, trade secrets or other intellectual property in all such work and in the Services are the property of PTS. 7. FORCE MAJEURE lf the performance of this agreement or any of the obligations hereunder is interfered with in whole or in part by reason of any circumstances beyond the reasonable control of PTS, including but not limited to fire, explosion, power failure, acts of God, revolution, civil commotion or acts of public enemies, any applicable law, order, regulation, ordinance or requirement of any government or legal body or labor unrest, including without limitation, strikes, slow downs, picketing or boycotts, then PTS shall be excused from such performance to extent of such interference. 8. SUBCONTRACTS PTS shall have exclusive right and responsibility for the selection of any and all service suppliers required for the performance of the Services hereunder. However, no modifications to the Services, whether to be provided directly by PTS or a subcontractor, shall be made without the prior written consent of both parlies (as to any such modification and/or addition), which consent shall not be unreasonably withheld. 9. INDEMNIFICATION a) To the furthest extent allowed by law, PTS, shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, toft or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by CITY, PTS, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or ¡lhRinftsç!fi 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 515-s578 10. THE SCIENTIFIC APPROACH TO YÛUR SUCCESS alleged to have arisen directly or indirectly out of performance of this Agreement. PTS obligations under the preceding sentence shall apply regardless of whether CITY or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers. lf PTS should subcontract all or any portion of the work to be performed under this Agreement, PTS shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. b). Each party will give the other prompt written notice of any claim or suit possibly coming within the purview of any indemnity set forth in this Agreement. Upon the written request of an indemnitee, the indemnitor will assume the defense of any such claim, demand, action, or proceeding. The indemnitee shall also have the right to provide its own defense at its own expense, provided the indemnitee shall not settle any claim without the indemnitor's consent unless it is willing to release the indemnitor from its obligation of indemnity hereunder. c). PTS shall maintain for the life of this agreement the minimum scope of insurance set forth in schedule "D". d). The indemnification set forth in this Section 9 shall survive the termination of this Agreement. GENERAL TERMS a). Complete Aqreement: This Agreement, including Schedules '4,' "8" and "C" hereto, constitutes the entire understanding between the parties respecting the subject matter of this Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the parties respecting the subject matter of this Agreement. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom such modification is sought to be enforced. b). Waiver: No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly stated by the Party making such waiver. c). Assiqnment: Neither this Agreement nor any rights or obligations hereunder shall be assignable by any Party without the prior written consent of the other Party. This Agreement shall ensure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators, successors and permitted assigns. d). Authoritv: Each Party represents and warrants in favor of the other that it has all necessary capacity and authority to enter into this Agreement and to carry out its respective obligations hereunder. e). Notices: Any notice required or permitted to be given hereunder shall be in writing.and shall be sufficiently given if delivered in person during normal business hours of the recipient on a business day or sent by first class mail, postage prepaid, or by facsimile as follows: jihRirlftsç!ffi 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 515-3578 THE SEIENTIFIC APPROACH TO YOUR SUCCTSS ln the case of a notice to the PTS to: Felicia Gomez 726 W . Barstow Ave., #1 16 Fresno, CA 93704 ln the case of a notice to CLIENT to: _City of Fresno (Name of Client) (lndividual Name) 2600 Fresno St (Address) _Fresno, CA93721 (City, State, Zip) (Fax No) and shall be conclusively deemed to have been given and to have been received on the following business day, if so delivered or sent by facsimile, and on the third business day following the mailing thereof, if so mailed (excluding each day during which there exists any interruption of postal services due to strike, lockout or other cause). Addresses for notice may be changed by giving notice in accordance with the foregoing. a). Choice of Law: This Agreement shall be governed by the laws of the State of California, excluding its choice of law rules that may allow governance of the agreement by the laws of another state. Solely for the purposes of enforcing or interpreting this Agreement, the Parties agree to be subject to the personal jurisdiction of any court in the County of Fresno in the State of California with subject matter jurisdiction to enforce or interpret any of the provisions of this Agreement. lN WITNESS WHEREOF, each party to this agreement has caused it to be executed at Fresno CA on the date indicated above. CLIENT Bruce Rudd, City Manaqer Print Name and Title Felicia Gomez, Ph.D. Owner Print Name and Title ATTEST: WONNE SPENCE, CMC CITY By ;ihfinftsçl* AS T0 Ftr¡l,¡ 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 5l-5-3578 ÏI-IE SCIENTIFIC APPROACH TO YOUR SUCCESS SCHEDULE "A'' WORKSITE WELLNESS PROGRAM SERVICES PTS shall provide the Services to the CLIENT as set forth below, upon the terms and conditions set forth in this Agreement. The CLIENT and PTS may amend this Schedule, by written agreement between the Parties, from time to time during the Term of the Agreement and/or any renewal period. Worksite Wellness Services (initial all that apply):PTS CLIENT a) Employeequestionnaire b) Height, weight screening c) Body composition testing d) Blood pressure screening e) Cardiovascular risk panel f) Glucose testing g) lndividual employeeconsultation h) Other (describe below) X _x_ X X X X X X _x_seminars (time/details TBD). _x_fitness testing including :. cardiovascular aerobic test with resting and exercise EKG monitoring;. exercise blood pressure o flexibility sit and reacho sit upso hand gripo bench presso verticaljump testo Reactive C Proteino PSA Totalo GA-125 j#P-rl]nsçl$ 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559)51-5-3578 THE SCIENTIFIC APPROACH TO YOUR SUCCESS SCHEDULE "B'' PAYMENT ln consideration of the Services provided by PTS, the CLIENT shall pay PTS in accordance with the terms set forth below. The CLIENT and PTS may amend this Schedule, by written agreement between the Parties, from time to time during the Term and/or any renewal period. The Consultant's sole compensation for satisfactory performance of all services required or rendered pursuant to the agreement shall be a fix fee of $ 337.33 (no blood draws) or 417.33 (with blood draws) per person. Compensation for seminars will $200/60 min. The City shall make monthly payments for the fitness testing based on the number of tests completed each month. The first payment of 20o/o (of estimated 125,000 = $25,000) shall be paid within 60 days prior to the Consultant beginning the work product comprised of the test and analysis. The monthly balance due shall be paid within 30 days after the City has accepted the described services. Seminars and other services will be billed once the services have been completed. Any balance of fees is due and payable at the end of the Term of this Agreement (as set forth in paragraph 3.a) above, unless terminated earlier pursuant to paragraphs 3.b)-c). ln any case, CLIENT shall pay PTS all fees due hereunder not later than seven (7) days after (i) the end of the Term, or (ii) in the case of termination pursuant to paragraphs 3.b)-c), the termination date, whichever is sooner. a) b) c) ji'þ.Rtllngç!fi 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 515-3578 THE SCIËNTIFIC APPROACI-I TO YOUR SUCCESS SCHEDULE "C'' WORKSITE WELLNESS INCENTIVES Worksite wellness incentives shall be paid by CLIENT and/or PTS according to the terms set forth below. The CLIENT and PTS may amend this Schedule, by written agreement between the Parties, from time to time during the Term and/or any renewal period. lncentive Amount: TBD Paid by: Client- City will pay for any incentives Additional Terms: ift-illlnsç!fr 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems-com | (559) 515-3578 TIIE SCIENTIFiC APPROACH TO YÛUR SUCCESS Schedule "D" lnsurance Requirements for Professional Services MINIMUM LIMITS OF INSURANCE PROFESSIONAL SERVICES, or any party the PROFESSIONAL SERVICES subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage;(ii) $1,000,000 per occurrence for personal and advertising injury;(iii) $2,000,000 aggregate for products and completed operations; and,(iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and propefty damage. WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits. EMPLOYER'S LIABILITY: (i) $1,000,000 each accident for bodily injury;(¡i) $1,000,000 disease each employee; and,(¡ii) $1,000,000 disease policy limit. Professional Liabilitv (Errors and Omissions) lnsurance appropriate to the PTS profession, with limits not less than: $1,000,000 per claim/occurrence; and, $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE ln the event PROFESSIONAL SERVICES purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of lnsurance," this insurance policy(ies) shall "follow form; and afford no less coverage than the primary insurance policy(ies). ln addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. 3 4 5 o ( i) jihPir¡ftsçlç 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems-com | (559) 5l-5-3578 TI-IE SCIENTIFIC APPROACH TO YOUR SUTCISS DEDUCTIBLES AND SELF-INSURED RETENTIONS PROFESSIONAL SERVICES shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and PROFESSIONAL SERVICES shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance, and approved by, the CITY'S Risk Manager or his/her designee. At the option of the CITY'S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or(ii) PROFESSIONAL SERVICES shall provide a financial guarantee, satisfactory to CITY'S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. PROFESSIONAL SERVICES shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 1 I 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional lnsured. 3. For any claims relating to this Agreement, PROFESSIONAL SERVICES' insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of PROFESSIONAL SERVICES' insurance and shall not contribute with it. PROFESSIONAL SERVICES shall establish primary and non-contributory status by using ISO Form CG2001 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers' Compensation insurance policv is to contain, or be endorsed to contain, the tottowingrprwision: PROFESSIONAL SERVICES and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. $ihRirlftsçlç 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 5l-5-3578 THE SCIENTIFIO APPROACH TO YOUR SUTCESS lf the Professional Liabilitv insurance policv is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by PROFESSIONAL SERVICES. 2. lnsurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. lf coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by PROFESSIONAL SERVICES, PROFESSIONAL SERVICES must purchase "extended reporting" coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. PROFESSIONAL SERVICES is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, PROFESSIONAL SERVICES shall furnish CITY with a new cedificate and applicable endorsements for such policy(ies). ln the event any policy is due to expire during the work to be performed for CITY, PROFESSIONAL SERVICES shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requÌrement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by PROFESSIONAL SERVICES shall not be deemed to release or diminish the liability of PROFESSIONAL SERVICES, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitatlon upon the amount of indemnification to be provided by PROFESSIONAL SERVICES. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of PROFESSIONAL SERVICES, its principals, officers, agents, employees, persons under the supervision of PROFESSIONAL SERVICES, vendors, suppliers, invitees, äonsultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. rihRinnsç!fr 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 515-3578 THE SCiENTIFIC APPROACI{ TO YTUR SUCCISS SUBCONTRACTORS - lf PROFESSIONAL SERVICES should subcontract all or any portion of the services to be performed under this Agreement, PROFESSIONAL SERVICES shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein and PROFESSIONAL SERVICES shall ensure that CITY, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors'certificates and endorsements shall be on file with PROFESSIONAL SERVICES and CITY prior to the commencement of any work by the subcontractor. VERIFICATION OF COVERAGE PROFESSIONAL SERVICES shall furnish CITY with all cerlificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement and before work commences. All non-lSO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, PROFESSIONAL SERVICES shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenryriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. Speciol Risks or Circumstances The City of Fresno reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances, jihRir¡ftsçl* 726W Barstow Ave, Suite 116, Fresno, CA 93704 | www.pinnacletrainingsystems.com | (559) 5l-5-3578