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HomeMy WebLinkAboutC-5348 - Independent Contractor Agreement Recreation InstructorINDEPENDENT CONTRACTOR AGREEMENT RECREATION INSTRUCTOR This Independent Contractor Agreement ("Agreement') is made and entered into as of this 1st day of January, 2015 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Alicia Drozd, a sole proprietor doing business as ("DBA") Healthy U ("Contractor"), to provide the classes or programs in Enrichment ("Class" or "Program") hereby agreed upon, as scheduled and described in the Newport Navigator and/or OASIS News, which is incorporated herein by reference, and as approved in writing by City. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2016, unless terminated earlier as provided herein. 2. COMPENSATION 2.1 City shall pay Contractor within twenty-one (21) City business days after the last Class meeting. 2.2 City shall pay Contractor an amount equal to: 2.2.1 Sixty Five percent (65%) of the amount of the total enrollment fees collected, minus the non-resident fee and a five dollar ($5.00) per person administration fee for each Class. 2.3 City shall pay Contractor electronically. Contractor shall be responsible for ensuring an up to date "Direct Deposit Authorization Form" is on file with City. 3. DUTIES OF CITY 3.1 Registration. City shall register all participants and shall collect all enrollment fees. Contractor shall not accept enrollment fees directly from a participant unless City approves, in advance and in writing, the acceptance of enrollment fees by Contractor. Contractors shall only collect material fees that are pre -approved by City and published in advance in the Newport Navigator and/or the OASIS News. Such material fees shall be collected by Contractor at the first Class meeting. 3.2 Publicitv. City shall provide publicity for the Class in the Newport Navigator (published on a quarterly basis) and/or the OASIS News (published on a monthly basis). City shall have the sole discretion to decide what information will be included in the Newport Navigator and/or the OASIS News about the Class and Contractor. Publicity may also include flyers created by City or Contractor. Contractor - created marketing materials must be approved in writing by City before distribution. 3.3 Class Facility. City shall provide a location for the Class without charging Contractor any rental fees, unless otherwise agreed by the parties. Contractor will request dates and times for the Classes and City will inform Contractor if the facility is available. It is Contractor's sole responsibility to request these dates/times; City will not schedule Contractor's Classes without receiving date/time requests from Contractor. City facilities shall only be used for Classes authorized by the City under this Agreement. 3.4 Refund Processing. Refunds are at the discretion of the City. City shall provide refunds to participants when: 3.4.1 The participant drops the Class before the second Class meeting; 3.4.2 The participant drops a Class that is a one (1) day or more workshop at least five (5) City business days before the workshop begins; or 3.4.3 The Class is canceled by City or Contractor. If canceled by Contractor, all required paperwork must be received by City at least seventy-two (72) hours before start date of Class. 3.5 Class Roster, Sign -Out and Attendance Sheets. City shall provide Class rosters, sign -out sheets and attendance sheets to Contractor online via City's registration system. Contractor is responsible for requesting log -in and password information from City for use of the registration system. 4. CONTRACTOR DUTIES 4.1 Contractors. Contractor hereby certifies that it, or any subcontractor, representative or employee (collectively "Representative" or "Representatives") who will be teaching the Class or assisting in teaching the Class are qualified to do so, and qualified to perform the services described above and in the Program outline submitted to City. Contractor is responsible for all Class curriculum development. Contractor is responsible for training, supervising, evaluating, scheduling, and any other requirements by law for all Representatives. Contractor warrants that it will continuously furnish the necessary personnel to provide the Program or Classes as contemplated by this Agreement. 4.2 Representatives. Contractor shall provide City with the name(s), address(es) and phone number(s) of all Representatives who will be providing any services pursuant to this Agreement. All Representatives must comply with the Fingerprint and Criminal Background Check policy in Section 9. All Representatives must be able to provide proof of legal right to work in the United States. 4.2.1 Representative Approval Form. Attached as Exhibit A, and incorporated herein by reference, is the Representative Approval Form ("Form"). Each Representative is required to obtain the written approval of the Recreation & Senior Services Director prior to performing any services under this Agreement. Prior to Contractor using any Representative to provide any services pursuant to this Agreement, Contractor shall submit to City a completed Form for each Representative Alicia Drozd Page 2 that Contractor desires to use to provide services pursuant to this Agreement. Contractor, at the sole discretion of City, shall remove from the Program any Representative assigned to the performance of services pursuant to this Agreement upon written request of City. 4.2.2 Please initial the statement that applies: I will not be using Representatives. I will be using Representatives. Any completed and approved Forms shall be incorporated herein by reference. i shall not authorize any Representative to provide services pursuant to this Agreement unless and until the Recreation & Senior Services Director has approved in writing the completed Form for that individual Representative. 4.3 Subcontracting. Contractor shall not subcontract or assign any portion of the rights, obligations or duties required under this Agreement, without first obtaining prior written approval from City. Subcontracts, if any, shall contain a provision making them subject to all provisions of this Agreement. 4.4 Supplies/Equipment. Contractor shall be responsible for providing all supplies, equipment, personnel, materials, and any additional publicity desired for the Class, at Contractor's sole expense. Contractor shall also be responsible for repairing and maintaining all equipment and supplies in good working condition. 4.5 Anti -Discrimination Laws. Contractor agrees and certifies that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, sexual orientation or any other impermissible basis under the law, be excluded from participation in, or be denied the benefits of the services provided pursuant to this Agreement except as otherwise permitted by law. Contractor shall, where applicable, conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. 4.6 Class Size. Contractor shall determine the minimum and maximum number of participants required for each Class to ensure the quality and safety of the Class participants. Contractor or Representative is required to attend the first Class meeting of all Class offerings advertised in the Newport Navigator and/or OASIS News unless Contractor cancels the Class at least three (3) City business days prior to the first Class date, with the prior written approval of City. In the event of such approved cancellation, Contractor shall be responsible for informing all registered participants. In the event that the minimum number of participants is not met by the first Class meeting, the Class shall be canceled and Contractor shall not be compensated for attending the first meeting or for any canceled Class. Contractor shall not be obligated to provide any additional services in regards to the canceled Class. If the minimum number of participants is met or exceeded, the Class shall be held as scheduled (even if any of the initial participants subsequently drop the Class), subject to Section 15 of this Alicia Drozd Page 3 Agreement. If the demand is such that an additional Class could be offered, it shall be taken under consideration and negotiated between City and Contractor. If Class(es) are canceled for two (2) consecutive quarters due to lack of enrollment, the Class will not be scheduled again until City determines that public demand has increased. 4.7 Use of Non -City Facilities for Classes. If Contractor desires to conduct the Class at its place of business, or some other non City -owned site or facility, such location shall be first approved in writing by the City, which approval may be granted or conditioned by City in its sole and absolute discretion. Upon said written consent by City, Contractor must: Class; and 4.7.1 Notify City at least twenty-four (24) hours in advance; 4.7.2 Provide sufficient parking for all participants; 4.7.3 Post signs at the site to direct participants to the location of 4.7.4 Allow access to City staff to the location when requested. 4.8 Absences. Contractor shall obtain permission from City one (1) week prior to any planned absence from the Class. In the event of illness, Contractor is required to notify City and participants at least twelve (12) hours prior to any Class cancellation. 4.8.1 City urges Contractor to get a substitute Representative whenever possible instead of canceling Classes. Contractor shall obtain City's prior written approval of any substitute Representative. Any substitute Representative must have completed fingerprinting and a criminal background check pursuant to Section 9 prior to teaching any Programs or Classes and must have an authorized Representative Approval Form on file with City. 4.9 Contact Information. Contractor is required to notify City in writing of any name, address, telephone number, email, website or direct deposit payment changes within forty-eight (48) hours of such change. 4.10 Contractor Informational Meeting. Contractor or Contractor's authorized Representative or employee shall attend an annual "Contractor Informational Meeting." 4.11 Camp Participant Emergency Waiver Form Requirements. All Contractors who offer camps shall require all participants to complete and return to Contractor, or its designee, on or before the first day of camp, a City issued "Emergency Contact Information Form." 4.12 Sign -Out Sheets. All camp Contractors with participants ages ten (10) years and younger shall have a parent or legal guardian sign out each said Class participant after each Class. Sign -out sheets along with attendance sheets are available to Contractor online through the instructor login. All camp Contractors with participants age seventeen (17) years and younger shall retain written permission from Alicia Drozd Page 4 a parent or legal guardian to allow said participants to transport themselves home from the Class site. 4.13 Other Requirements. Contractors shall: 4.13.1 Cooperate fully with all reasonable requests from City staff; 4.13.2 Maintain the highest degree of participant safety possible; 4.13.3 Injuries or Damages. Immediately report to City's Project Administrator named in Section 5 below, by phone or email, any injuries as a result of Class participation, damages to the classroom or Program facility that could cause potential injury to a Class participant, and/or other needed maintenance repairs; 4.13.4 Clear all participants from the designated Class area at the end of Class time unless participants continue to use public City facilities for personal use without conflict with other scheduled activities and in accordance with posted hours and availability limitations; 4.13.5 Ensure that any music or sound system is kept at levels that will not interfere with other classes or create a public disturbance/nuisance; 4.13.6 Close and secure the room or building at the end of each Class; 4.13.7 Turn off any lights, heat, air conditioning, or other utilities the end of each Class; 4.13.8 Complete and return via email, by the date set forth by City's Project Administrator, the quarterly "Contract Class Schedule" if Contractor wishes to be a part of City's marketing materials; 4.13.9 Know facility rules and regulations and provide pertinent information (e.g., refund policy) to participants; 4.13.10 Pay a twenty dollar ($20.00) lost key/replacement fee when Contractor requests replacement key; and 4.13.11 Abide by all City policies and procedures including, but not limited to, the requirements set forth in the Newport Navigator and OASIS News and the current Contractor Handbook which is incorporated herein by reference. Contractor's signature on this Agreement signifies acknowledgement of receipt of the Contractor Handbook. 4.14 Contractor Photo ID Badge. Contractor and Representatives are required to wear a City -provided Contractor Photo ID Badge at all times while engaging in services for City. Contractor shall be required to pay five dollars ($5.00) for any lost or replacement Contractor Photo ID Badge. Contractor Photo ID Badges are distributed upon execution or renewal of the Agreement with City. Alicia Drozd Page 5 5. PROJECT ADMINISTRATOR This Agreement will be administered by the Recreation & Senior Services Department. Recreation Supervisor, or designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. NOTICES Unless otherwise indicated, all notices, demands, requests or approvals, including change of address notices, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. 6.1 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn.: Recreation Supervisor Recreation & Senior Services Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 6.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at the contact information provided on the signature page to this Agreement. 7. INDEPENDENT CONTRACTOR The parties intend and agree that at all times during the performance of services under this Agreement, Contractor and Representatives shall act as an Independent Contractor and shall not be considered an agent or employee of City. As such, Contractor shall have the sole legal responsibility to remit all federal and state income and Social Security taxes and to provide for its own workers compensation and unemployment insurance and that of its Representatives. Contractor also agrees to provide liability insurance as required by City and described more fully below and in Exhibit B. City shall not be liable for any payment or compensation in any form to Contractor other than as provided herein. City reserves the right to employ other independent contractors and contractors who teach the same or similar classes. City shall provide Contractor with IRS Form 1099-MISC or other applicable IRS forms at the end of the calendar year for all fees paid to Contractor. 8. INSURANCE REQUIREMENTS Without limiting Contractor's indemnification of City, and prior to commencement of Classes, Contractor shall obtain, provide and maintain at its own expense during the Alicia Drozd Page 6 term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. This provision shall not apply to Contractors providing non -fitness related classes at the OASIS Senior Center. 9. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK 9.1 Contractor and its Representatives must submit to and pass a criminal background investigation by providing a complete set of fingerprints to City at least thirty (30) calendar days prior to teaching, substituting for Contractor, or assisting with any Class. Contractor and its Representatives are required to submit fees at City's cost pursuant to the administrative fee schedule (NBMC §3.36.030) to the City of Newport Beach, Recreation & Senior Services Department, to cover all costs associated with fingerprinting through the City of Newport Beach Police Department and the Department of Justice. Fingerprints may be required to be updated every five (5) years. 9.2 In addition, all Classes involving participants age seventeen (17) years or younger ("minors") must be taught in an open atmosphere where parents and guardians are able to observe Class instruction, if so desired. At no time may the parent or guardian of a minor be denied access to a Class. 10. TRANSPORTING OF MINOR PARTICIPANTS 10.1 Unless the Program specifically involves travel or transportation of minors to an offsite location, Contractor or its Representatives, shall not transport any minor participant by vehicle or otherwise. 10.2 If, after the conclusion of any Class session, a minor participant has not been picked up, Contractor shall make every effort to contact the minor's parent, legal guardian, or other authorized individual to whom the minor may be released. If no contact can be made with any of the above individuals, Contractor shall contact the City Recreation Supervisor or Recreation Manager at the Recreation & Senior Services Office at (949) 644-3151 (Monday through Friday, 8 a.m. to 5 p.m.), or the Park Patrol Division at (949) 795-2381 (Monday through Friday, 5 p.m. to 9 p.m. and Saturday and Sunday, 9 a.m. to 5 p.m.). During all other hours, Contractor shall contact the Newport Beach Police Department Dispatch number for assistance at (949) 644-3717. 11. CONFIDENTIALITY; OWNERSHIP OF DOCUMENTS All Class rosters, participant addresses and contact information, and any other such information or documents compiled by City and provided to Contractor, shall remain the property of City. Contractor shall not release such information to others without the prior written authorization by City. Contractor shall not use such information for any other purpose than that authorized by City. All Class rosters, Class participant addresses and contact information shall be used by Contractor solely for administration of Classes and performing City business. Contractor shall take reasonable steps consistent with the law to prevent distribution of such information. Contractor's obligations under this Section shall survive the termination of this Agreement. Alicia Drozd Page 7 12. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND PUBLICITY Contractor shall not include City's name, seal, logos or insignia, or photographs of the Class site or participants, in any publicity pertaining to Contractor's services or Class in any magazine, trade paper, newspaper, radio or television production, Internet, or other printed or electronic medium without the prior written consent of City and participants. 13. BUSINESS LICENSE Newport Beach Municipal Code Chapter 5.04 provides that every business operating in City must obtain a business license prior to conducting business in City and pay the required business license tax. The City business license tax is an annual fee due every twelve (12) months. Contractor agrees to obtain a City business license as required by Chapter 5.04 and provide proof of compliance annually. Business license applications are available in the Revenue Division Office at Newport Beach City Hall. In certain circumstances, Contractor may be eligible to pay a reduced business license tax, which is known as an "apportioned business tax". A Declaration for Apportioned Business Tax is available in the Revenue Division Office at City Hall. A copy of the business license must be submitted with this Agreement. 14. INDEMNIFICATION 14.1 General. Contractor shall indemnify, defend and hold harmless City, its elected and appointed officers, employees, agents, volunteers, representatives, the City Council, boards and commissions ("Indemnified Parties") with respect to any loss, liability, injury or damage that arises out of, or is in any way related to, the acts or omissions of Contractor, its employees, representatives, officers and agents in the course of performing services under this Agreement; however, Contractor shall not be required to indemnify City from any claim arising from the sole negligence or willful misconduct of the Indemnified Parties. 14.2 Intellectual Property. Contractor shall defend, indemnify, and hold harmless the Indemnified Parties from any claim of infringement or other proceedings brought against City for any intentional or unintentional violation by Contractor of the legally protected rights of any third parties, with respect to works performed, logos displayed, or written or digital materials provided by Contractor and used during the performance of this Agreement. Such legally protected rights of third parties include but are not limited to trade secrets, moral rights, proprietary acts, U.S. patents, trademarks, service marks and copyrights vested or issued as of the Effective Date of this Agreement. If Contractor will be providing a public performance of musical compositions or arrangements that are subject to a license held by a third party, it is the responsibility of Contractor to obtain the appropriate license to perform the material prior to the public performance. Alicia Drozd Page 8 15. TERMINATION City has the right, at its sole discretion and with or without cause, to terminate this Agreement at any time by giving three (3) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor on a prorated basis for any Classes or Programs that were actually taught by Contractor, if any, up to the effective date of termination. 16. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the Agreement, Contractor shall submit to City in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to all claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (California Govt. Code §§ 900 et seq.). 17. STANDARD PROVISIONS 17.1 Compliance with all Laws. Contractor shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 17.2 Waiver. A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 17.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Agreements of whatsoever kind or nature are merged herein. No verbal contract or implied covenant shall be held to vary the provisions herein. 17.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 17.5 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 17.6 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to Alicia Drozd Page 9 this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 17.7 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 17.8 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 17.9 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 17.10 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 17.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] Alicia Drozd Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOR EY'S OFFICE Date: By:. lt,r Aaron C. Harp �v City Attorney ATTEST: Date: Ioz3. Iq Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: k'l r `� gy; L4uXa Detweile R ration & Senior Services Director CONTRACTOR: Alicia Drozd, a sole proprietor doing business as ("DBA") Healthy U 1AbrDZd owwle S ere Date Print Name Print Title Date Print Name Print Title [END OF SIGNATURES] Attachments: Exhibit A— Representative Approval Form Exhibit B — Insurance Information Alicia Drozd Page 11 EXHIBIT A REPRESENTATIVE APPROVAL FORM PLEASE PRINT LEGIBLY CONTRACTOR NAME: REPRESENTATIVE: NAME: ADDRESS: CITY, STATE ZIP: DATE OF BIRTH: PHONE# EMAIL: SIGNATURE OF REPRESENTATIVE: DATE -- CITY USE ONLY CONTRACT #: FINGERPRINTS: YES NO BACKGROUND: YES NO CLEARED CLEARED TO YES NO WORK PHOTO TAKEN: = YES NO CONTRACTOR = YES NO NOTIFIED BY EMAIL Alicia Drozd A-1 EXHIBIT B INSURANCE REQUIREMENTS A. Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City Risk Manager. C. Coverage Requirements. 1. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. (a) Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. (b) In the event Contractor has no employees requiring Contractor to provide Workers' Compensation insurance, Contractor shall so certify to City in writing prior to City's execution of this Agreement. 2. General Liability Insurance. Contractor shall maintain commercial general liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. (a) Contractor shall have the option of purchasing liability coverage through the City of Newport Beach's Special Event insurance Alicia Drozd B-1 program, or through Southern California Municipal Athletic Federation ("SCMAF") or providing its own coverage. If Contractor elects to obtain its own coverage, said coverage must be as outlined in this Exhibit. (b) Please initial the statement that applies: Contractor shall provide a copy of the General Liability Insurance with Additional Insured Endorsement that meets the requirements contained herein. Contractor shall utilize City -provided insurance through Southern California Municipal Athletic Federation ("SCMAF") and will pay all required fees billed on a quarterly basis by City. I have reviewed the Contractor Handbook for complete information. Please note that SCMAF does not provide coverage for Worker's Compensation or Automobile Insurance Liability. 3. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. 2. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be included as insureds under such policies. Alicia Drozd B-2 3. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. 4. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 5. Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. E. Additional Agreements Between the Parties. The parties hereby agree to the following: 1. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by the City Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 2. City's Right to Revise Requirements. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving Contractor sixty (60) days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. 3. Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. 4. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the contractor maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for higher limits maintained by Alicia Drozd B-3 Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. 5. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 6. City Remedies for Non Compliance. If Contractor or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Contractors right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. 7. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 8. Contractors Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Alicia Drozd B-4 INDEPENDENT CONTRACTOR AGREEMENT RECREATION INSTRUCTOR This Independent Contractor Agreement ("Agreement") is made and entered into as of this 1st day of January, 2013 ("Effective Date") by and between the City of R ` Newport Beach, a California Municipal Corporation and Charter City ("City"), and Alicia Drozd DBA Healthy U, a sole proprietor doing business as ("DBA") Healthy U ("Contractor") to provide the classes or programs in Health & Safety ("Class" or "Program") hereby agreed upon, as scheduled and described in the Newport Navigator and/or OASIS News, which is incorporated herein by this reference, and as approved in writing by the City. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2014 unless terminated earlier as provided herein. 2. COMPENSATION 2.1 City shall pay Contractor within twenty one (21) business days after the last Class meeting. City shall pay the Contractor an amount equal to sixty-five (65%) percent of the amount of the total enrollment fees collected, minus the non-resident fee and a five dollar and no/100 ($5.00) per person administration fee for each Class held. 2.2 The City pays Contractors electronically; the Contractor shall be responsible for ensuring an up to date "Direct Deposit Authorization Form" is on file with the City_ 2.3 (When applicable) Contractors providing Classes or Programs at Mariners Elementary School and/or Newport Elementary School ("Schools") shall submit to the City written notice of actual costs incurred in the performance of services under this Agreement to conduct the Class or Program at the Schools. Subject to the City's written acceptance of Contractor's actual costs, City shall reimburse the Contractor one hundred percent (100%) of the actual costs incurred within twenty one (21) business days after the last Class or Program meeting. 3. DUTIES OF CITY 3.1 Registration. City shall register all participants and shall collect all enrollment fees. Contractor shall not accept enrollment fees directly from a participant unless the City approves, in advance and in writing, the acceptance of enrollment fees by the Contractor. Contractors shall only collect material fees that are pre -approved by the City and published in advance in the Newport Navigator and/or the OASIS News (if applicable). Such material fees shall be collected by Contractor at the first Class meeting. ALICIA DROZD DBA HEALTHY U Page 1 32 Publicity. City shall provide publicity for the Class in the Newport Navigator (published on a quarterly basis) and/or the OASIS News (published on a monthly basis). City shall have the sole discretion to decide what information will be included in the Newport Navigator and/or the OASIS News about the Class and the Contractor. Publicity may also include flyers created by the City or the Contractor. Contractor created flyers must be approved in writing by the City before distribution. 3.3 Class Facility. City shall provide a location for the Class without charging Contractor any rental fees, unless otherwise agreed by the parties. The Contractor will request dates and times for the Classes and the City will inform the Contractor if the facility is available. It is the Contractor's sole responsibility to request these dates/times, the City will not schedule the Contractor's Classes for them. 3.4 Refund Processing. City shall provide refunds to participants when 3.4.1 The participant drops the Class before the second Class meeting; 3.4.2 The participant drops a one (1) day or more workshop five (5) business days before the workshop begins; or 3.4.3 The Class is canceled by the City or Contractor. In the latter instance, the Contractor must provide the City with all required paperwork. 3.5 Class Roster, Sign -Out and Attendance Sheets. City shall provide Class rosters, sign -out sheets and attendance sheets to Contractor online via http://newportbeachca..qovlindex,aspx?page=1432. Contractor is responsible for requesting log -in and password information from the City. 4. CONTRACTOR DUTIES 4.1 Contractors. Contractor hereby certifies that he/she or any subcontractor, representative or employee (collectively "Representatives") who will be teaching the Class or assisting in teaching the Class are qualified to do so, and qualified to perform the services described above and in the Program outline submitted to City. Contractor is responsible for all Class curriculum development. Contractor is responsible for training, supervising, evaluating, scheduling, and any other requirements by law for all Representatives. Contractor warrants that it will continuously furnish the necessary personnel to provide the Program or Classes as contemplated by this Agreement. 4.2 Representatives. Contractor shall provide the City with the name(s), address(es) and phone number(s) of all Representatives who will be providing any services pursuant to this Agreement. All Representatives of Contractor must comply with the Fingerprint Policy (see Section 8). All Representatives must be able to provide proof of legal right to work in the United States. 4.2.1 Representative Approval Form. Attached as Exhibit A, and incorporated herein by reference, is the Representative Approval Form ("Form"). Each Contractor Representative is required to obtain the written approval of the Recreation and Senior Services Director prior to performing any services under this Agreement. Prior to Contractor using any Representative to provide any services pursuant to this Agreement, Contractor shall submit to the City a completed Form for each ALICIA DROZD DBA HEALTHY U Page 2 Representative that Contractor desires to use to provide services pursuant to this Agreement. Contractor, at the sole discretion of City, shall remove from the Program any Representative assigned to the performance of services pursuant to this Agreement upon written request of City. 4.3 Please initial the statement that applies: I will not be using Representatives or employees. ❑ I will be using Representatives. Any completa and approved Form shall be incorporated herein by reference. Contractor shall not authorize any Representative to provide services pursuant to this Agreement unless and until the Recreation and Senior Services Director has approved in writing the completed Form for that individual Representative. 4.4 Subcontracting. Contractor shall not subcontract or assign any portion of the rights, obligations or duties required under this Agreement, without first obtaining prior written approval from the City, Subcontracts, if any, shall contain a provision making them subject to all provisions of this Agreement. 4.5 Supplies/Equipment. Contractor shall be responsible for providing all supplies, equipment, personnel, materials, and any additional publicity desired for the class, at Contractor's sole expense. Contractor shall also be responsible for repairing and maintaining all equipment and supplies in good working condition. 4.6 Anti -Discrimination Laws. Contractor agrees and certifies that, except as permitted by law, no person shall, on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, sexual orientation or any other impermissible basis under the law, be excluded from participation in, or be denied the benefits of the services provided pursuant to this Agreement, and Contractor agrees not to discriminate on said grounds in the hiring and retention of employees and Representatives, unless authorized under Section 12940 of the California Government Code. Contractor shall, where applicable, conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. 4.7 Class Size. Contractor shall determine the minimum and maximum number of participants required for each Class to ensure the quality and safety of the Class participants. Contractor or Contractor's authorized representative is required to attend the first Class meeting of all Class offerings advertised in the Newport Navigator and/or OASIS News unless Contractor cancels the Class three (3) business days prior to the start date, with the prior written approval of City. In the event of such approved cancellation, Contractor shall be responsible for informing all registered participants. In the event that the minimum number of participants is not met by the first Class meeting, the Class shall be cancelled and the Contractor shall not be compensated for attending the first meeting or for any cancelled Class. Contractor shall not be obligated to provide any additional services in regards to the cancelled Class. If the minimum number of participants is met or exceeded, the Class shall be held as scheduled (even if any of the ALICIA DROZD DBA HEALTHY U Page 3 initial participants subsequently drop the Class), subject to Section 14 of this Agreement. If the demand is such that an additional Class could be offered, it shall be taken under consideration and negotiated between City and Contractor. If class(es) are cancelled for two (2) consecutive quarters due to lack of enrollment, the class will not be scheduled again until City determines that public demand has increased. 4.8 Use of Non -City Facilities for Classes. If Contractor desires to conduct the Class at his/her place of business, or some other non City -owned site or facility, Contractor must: and 4.8.1 Notify City at least twenty-four (24) hours in advance; 4.8.2 Provide sufficient parking for all participants; 4.8.3 Post signs at the site to direct participants to the location of class; 4.8.4 Allow access to City staff to the location when requested. 4.9 Absences. Contractor shall obtain permission from City one (1) week prior to any planned absence from the class. In the event of illness, Contractor is required to notify City and Participants twelve (12) hours prior to any Class cancellation. 4.9.1 City urges Contractor to get a substitute Representative whenever possible instead of cancelling Classes. Contractor shall obtain City's prior written approval of any substitute Representative. Any substitute Representative must have completed a criminal background check pursuant to Section 8 prior to teaching any City Programs or Classes and must have an authorized Representative Approval Form on file with the City. 4.9.2 When cancelling a Class, Contractor shall contact all participants as soon as possible. 4.10 Contact Information. Contractor is required to notify City in writing of any name, address, telephone number, email, website or direct deposit payment changes within forty eight (48) hours of such change. 4.11 Contractor Informational Meeting. Contractor or Contractor's authorized Representative or employee shall attend the Annual "Contractor Informational Meeting" that will be held in the Fall. 4.12 Camp Participant Emergency Waiver Form Requirements. All Contractors who offer camps shall require all participants to complete and return to Contractor, or his/her designee, on or before the first day of camp, a City issued "Emergency Contact Information Form". 4.13 Sign -Out Sheets. All Camp Contractors with participants ages 10 years and younger, must have a legal guardian sign out each Class participant after each Class. Sign out sheets along with Attendance sheets are available to the Contractor online through their instructor login. ALICIA DROZD DBA HEALTHY U Page 4 4.14 Other Requirements, Contractors shall: 4.14.1 Cooperate fully with all reasonable requests from City staff; 4.14.2 Maintain the highest degree of participant safety possible; 4.14.3 Immediately report to the Recreation & Senior Services Office any injuries as a result of Class participation; 4.14.4 Injuries or Damages. Immediately report to the Recreation and Senior Services Office any injuries as a result of Class participation, damages to the classroom or Program facility that could cause potential injury to a Class participant, and/or other needed maintenance repairs. Contact the Recreation and Senior Services Office staff by phone or email; 4.14.5 Clear all participants from the designated Class area at the end of Class time unless participants continue to use public City facilities for personal use without conflict with other scheduled activities and in accordance with posted hours and availability limitations; 4.14.6 Ensure that any music or sound system is kept at levels that will not interfere with other classes or create a public disturbance/nuisance; 4. 147 Close and secure the room or building at the end of each Class; 4.14.8 Turn off any lights, heat, air conditioning, or other utilities when Class is finished; 4.14.9 Complete and return the quarterly "Contract Class Schedule" requested by the City if Contractor wishes to be a part of the marketing materials; 4.14.10 Know facility rules and regulations and provide pertinent information (i.e. refunds) to participants; 4.14.11 Pay a $20 lost key/replacement fee when Contractor requests replacement key; and 4.14.12 Abide by all City policies and procedures including, but not limited to, the requirements set forth in the Newport Navigator and OASIS News and the current Contractor Handbook which is incorporated herein by this reference. Contractor's signature on this Agreement signifies acknowledgement of receipt of the Contractor Handbook. 4.15 Contractor Photo ID Badge. Contractors and their Representatives are required to wear a City provided Contractor Photo ID Badge at all times while engaging in services for the City. Contractor shall be required to pay $5.00 for any lost or replacement Contractor Photo ID Badge. Contractor Photo ID Badges are distributed upon renewal of their Agreement with City. ALICIA DROZD DBA HEALTHY U Page 5 5. NOTICES 5.1 Unless otherwise indicated, all notices, demands, requests or approvals, including change of address notices, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Racquel Valdez, Recreation Supervisor Recreation and Senior Services Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3156 E-mail: recreation@newportbeachca.gov 5.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at the contact information provided on page 13 of this Agreement. 6. INDEPENDENT CONTRACTOR The parties intend and agree that at all times during the performance of services under this Agreement that Contractor shall act as an Independent Contractor and shall not be considered an agent or employee of City. As such, Contractor shall have the sole legal responsibility to remit all federal and state income and social security taxes and to provide for his/her own workers compensation and unemployment insurance and that of his/her Representatives. Contractor also agrees to provide liability insurance as required by City and described more fully below. City shall not be liable for any payment or compensation in any form to Contractor other than as provided herein. City reserves the right to employ other independent contractors and Contractors who teach the same or similar classes. City shall provide Contractor with IRS 1090 or other applicable IRS forms at the end of the calendar year for all fees paid to Contractor. 7. INSURANCE 7.1 General Liability Insurance. Contractor must provide and maintain at all times general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage. The policy shall carry a general liability special endorsement naming the City of Newport Beach, its elected or appointed officers, employees, agents and volunteers as additional named insured in the amount of one million dollars ($1,000,000) per occurrence. Evidence of insurance certificate shall be sent to the Recreation & Senior Services Department and must be approved by the City Risk Management or their designee prior to the first Class/day of instruction. 7.1.1 Contractor shall have the option of purchasing coverage through the City of Newport Beach's Special Event insurance program, or through Southern ALICIA DROZD DBA HEALTHY U Page 6 California Municipal Athletic Federation ("SCMAF") or providing his/her own coverage. If a Contractor elects to obtain his/her own coverage, said coverage must have the policy limits described above and be provided by an insurance carrier with a Best's Insurance Guide Rating of A- (or higher) and Financial Size Category Class of VII (or larger). 7.1.2 Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects to City, its elected or appointed officers, agents, officials, employees and volunteers with respect to all claims, losses or liability arising directly or indirectly from the Contractor's operations or Service provided to the City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 7.1.3 Said policy must also provide a written thirty (30) day notice of cancellation (ten (10) day written notice for non-payment of premium) to the City of Newport Beach Recreation & Senior Services Department, at the following address: P.O. Box 1768/ 3300 Newport Boulevard, Newport Beach, CA 92658. 7.2 Workers' Compensation Insurance. By executing this Agreement, Contractor certifies that Contractor is aware of and will comply with Section 3700 of the Labor Code of the State of California requiring every employer to be insured against liability for workers' compensation or to undertake self-insurance before commencing any work. Contractor shall carry the insurance or provide for self-insurance required by California law to protect said Contractor from claims under the Workers' Compensation Act. 7.2.1 The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against the City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance a copy of such waiver of subrogation endorsement. 7.2.2 In the event Contractor has no employees requiring Contractor to provide Workers' Compensation insurance, Contractor shall so certify to City in writing prior to City's execution of this Agreement. 7.3 Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence, or as approved by the City's Risk Manager or his/her designee. 7.4 Please initial the statement that applies: ❑ Contractor is providing a copy of the General Liability Insurance with Additional Insured Endorsement that meets the above requirements. Contractor shall be utilizing the City provided insurance throughh Southern California Municipal Athletic Federation ("SCMAF") and will ALICIA DROZD DBA HEALTHY U Page 7 pay all required fees billed on a quarterly basis by the City. I have reviewed the Contract Contractor Handbook for complete information. Please note that SCMAF does not provide coverage for Worker's Compensation or Automobile Insurance Liability. 8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK 8.1 All Contractors and their Representatives must submit to and pass a criminal background investigation by providing a complete set of fingerprints to the City at least thirty (30) calendar days prior to teaching, substituting for Contractor, or assisting with any Class. Such Contractors and their Representatives are required to submit fees in the amount of up $73 per person to the City of Newport Beach, Recreation and Senior Services Department, to cover all costs associated with fingerprinting through the City of Newport Beach Police Department and the Department of Justice. Fingerprints may be required to be updated every five (5) years. 8.2 In addition, all Classes involving minors age seventeen (17) or younger must be taught in an open atmosphere where parents and guardians are able to observe Class instruction, if so desired. At no time can the parent or guardian of a minor be denied access to a Class. 9.1 Unless the Program specifically involves travel or transportation of minors to an offsite location, Contractor, or Contractor's Representatives, shall not transport any minor participant by vehicle or otherwise. 9.2 If, after the conclusion of any Class session, a minor participant has not been picked up, Contractor shall make every effort to contact the minor participant's parent, legal guardian, or other authorized individual to whom the minor may be released. If no contact can be made with any of the above individuals, Contractor shall contact the City Recreation Supervisor or Recreation Manager at the Recreation & Senior Services Office at (949) 644-3151 (Monday through Friday, 8 a.m. to 5 p.m.), or the Park Patrol Division at (949) 795-2381 (Monday through Friday, 5 p.m. to 9 p.m. and Saturday and Sunday, 9 a.m. to 5 p.m.). During all other hours, Contractor shall contact the Watch Commander at the Newport Beach Police Department for assistance at (949) 644-3730. 10. CONFIDENTIALITY; OWNERSHIP OF DOCUMENTS All Class rosters, participant addresses and contact information, and any other such information or documents compiled by City and provided to Contractor, shall remain the property of City. Contractor shall not release such information to others without the prior written authorization by City. Contractor shall not use such information for any other purpose than those authorized by City. All Class rosters, Class participant addresses and contact information, shall be used by the Contractor solely for administration of Classes and performing City business. Contractor will take reasonable steps consistent with the law to prevent distribution of such information. Contractor's obligations under this Section shall survive the termination of this Agreement. ALICIA DROZD DBA HEALTHY U Page 8 11. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND PUBLICITY Contractor shall not include City's name, logos or insignia, or photographs of the Class site or participants, in any publicity pertaining to Contractor's services or Class in any magazine, trade paper, newspaper, radio or television production, Internet, or other printed or electronic medium without the prior written consent of City and participants. 12. BUSINESS LICENSE Newport Beach Municipal Code Chapter 5.04 provides that every business operating in the City must obtain a business license prior to conducting business in the City, and pay the required business license fee. This ordinance applies to businesses operating at commercial or residential locations within the City, or using a City of Newport Beach address or P.O. Box for receiving mail. The City Business License Fee is an annual tax, due every twelve (12) months. Contractor agrees to obtain a City business license as required by Chapter 5.04 and provide proof of compliance annually. Business License Applications are available in the Revenue Division Office in Newport Beach City Hall. In certain circumstances, Contractor may be eligible for paying a reduced Business License Tax, which is known as an Apportioned Business Tax. A Declaration for Apportioned Business Tax is available in the Revenue Division Office at City Hall. A copy of your Business License must be submitted with this Contract. All Contractors must have a valid business license. 13. INDEMNIFICATION 13.1 General. Contractor shall indemnify, defend and hold harmless City, its elected and appointed officers, employees, agents, representatives, the City Council, boards and commissions ("Indemnified Parties") with respect to any loss, liability, injury or damage that arises out of, or is in any way related to, the acts or omissions of Contractor, his or her employees, representatives, officers and agents in the course of performing services under this Agreement; however, Contractor shall not be required to indemnify City from any claim arising from the sole negligence or willful misconduct of the Indemnified Parties. 13.2 Intellectual Property. Contractor shall defend, indemnify, and hold harmless the Indemnified Parties from any claim of infringement or other proceedings brought against City for any intentional or unintentional violation by Contractor of the legally protected rights of any third parties, with respect to works performed, logos displayed, or written or digital materials provided by Contractor and used during the performance of this Agreement. Such legally protected rights of third parties include but are not limited to trade secrets, moral rights, proprietary acts, U.S. patents, trademarks, service marks and copyrights vested or issued as of the effective date of this Agreement. If Contractor will be providing a public performance of musical compositions or arrangements that are subject to a license held by a third party, it is the responsibility of Contractor to obtain the appropriate license to perform the material prior to the public performance. 14. TERMINATION City has the right, at its sole discretion and with or without cause, to terminate this Agreement at any time by giving three (3) calendar days prior written notice to Contractor. in the event of termination under this Section, City shall pay Contractor on a prorated basis for any Classes or Programs that were actually taught by Contractor, if any, up to the effective date of termination. 15. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the Agreement, Contractor shall submit to City in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Government Claims Act (Govt. Code §§ 900 of seq.). 16. STANDARD PROVISIONS 16.1 Compliance with all Laws. Contractor shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 16.2 Waiver. A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 16.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Agreements of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 16.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 16.5 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 16.6 Controllina Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. ALICIA DROZD DBA HEALTHY U '..- 16.7 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 16.8 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 16.9 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 16.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] ALICIA DROZD DBA HEALTHY U Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY A ORN Y'S OFFICE A California municipal corporation Date: �� /7 Date: 1 • 125• 13 AarcbX. Harpvatl Kal.Xr'a Detweiler City Attorney �eo' a eation and Qior Services Director ATTEST: ;J �I J Date: / OQ p1EWq tD By. u Leilani I. Brown o City Clerk ,fig CORN r CONTRACTOR: Alicia Drozd DBA Healthy U /z/1 a- Wicra LA7-d mow - Si tore D to Print Name Print Title Signature Date Print Name Print Title [END OF SIGNATURES] Attachments: Exhibit A—Representative Approval Form CWsembcalshar workmg Recontract Watplates acreeHon templatesV'ndependent contmdor agreement mcmafion mender template trial dot ALICIA DROZD DBA HEALTHY U Page 12 EXHIBIT A REPRESENTATIVE APPROVAL FORM PLEASE PRINT LEGIBLY CONTRACTOR NAME: REPRESENTATIVE: NAME: ADDRESS: CITY, STATE ZIP: DATE OF BIRTH: EMAIL: SIGNATURE OF REPRESENTATIVE: DATE -------------------------------------------------- CITY ------ -- -- -- -- CITY USE ONLY CONTRACT # FINGERPRINTS: O YES D NO STAFF SIGNATURE/DATE BACKGROUND: YES D NO CLEARED STAFF SIGNATUREIDATE CLEARED TO YES NO WORK STAFF SIGNATURE DATE RECEIVED PHOTO TAKEN: YES D NO 'STAFF SIGNATURE/DATE CONTRACTOR YES NO NOTIFIED BY EMAIL STAFF SIGNATURE/DATE APPROVED BY: _ LAURA DETWEILER, DIRECTOR DATE RECREATION & SENIOR SERVICES DEPARTMENT ORANGE COUNTY REPORTER - SINCE 1921 - 500 W SANTA ANA BLVD, SANTA ANA, CA 92701 Telephone (714) 543.2027 ( Fax (714) 5428841 ALICIA CAROLINE DROZD 20892 SAILMAKER CIRCLE HUNTINGTON BEACH, CA - 92648 (2015.5 C.C.P.) State of California ) County of ORANGE )as Notice Type: FNS - FICTITIOUS BUSINESS NAME Ad Descnpdon: HEALTHY U I am a clfim of the United States and a resk*d of the State of Caifomia, I am over the age of eightean years, and not a pariytoor Interested In the above entitled matter. i am the principal deck of the pricier and publisher of the ORANGE COUNTY REPORTER, a newspaper published in the English language in the city of SANTA ANA, county of ORANGE, and adjudged a newspaper of general dreuladon as defined by the laws of the State of California by the Superior Court of the County of ORANGE, State of California, under date t)&,LOM922, Case No.13421. That the notice, of which the annexed is a printed copy, has been tned In each regular and entire issue of said newspaper and not In any supplement thereof on the dates,. to^wit 11Id6Y2012, 12/07/2012, 12/14f2012, 12/21/2012 Executed on: 12/21/2012 At Los Angeles, California I certify (or declare) under penalty of pedury that the foregoing Is true and correct. Signature Tr& W�fe, WAV V -V DEC 2 7 2012 B DEPUTY OR#: 2414731 a4s) M (M)*ft CAE1kerCwmy d E onWve d"r2t, 1212V12 0"1472/e * A 0 0 0 0 0 2 9 2 5 9 9 5