Loading...
HomeMy WebLinkAboutC-5520 - Independent Contractor Agreement Recreation Instructor%J INDEPENDENT CONTRACTOR AGREEMENT f RECREATION INSTRUCTOR J 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 Kathryn Kramer, a sole proprietor ("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 Seventy percent (70%) 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 being held at the OASIS Senior Center. 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 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 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 Kathryn Kramer 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: _6101 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 Kathryn Kramer 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 a parent or legal guardian to allow said participants to transport themselves home from the Class site. Kathryn Kramer Page 4 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. 5. PROJECT ADMINISTRATOR This Agreement will be administered by the Recreation & Senior Services Department. Recreation Supervisor, or designee shall be the Project Administrator and Kathryn Kramer Page 5 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. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK 8.1 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 Kathryn Kramer Page 6 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 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. 9. TRANSPORTING OF MINOR PARTICIPANTS 9.1 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. 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'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 Parts 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. 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 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. 11. 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. 12. 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 Kathryn Kramer Page 7 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. 13. INDEMNIFICATION 13.1 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. 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 Kathryn Kramer Page 8 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.). 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 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 this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 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. Kathryn Kramer Page 9 16.10 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. 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 and the same instrument. [SIGNATURES ON NEXT PAGE] Kathryn Kramer Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: ) / By: C� I Aaron C. Wrip feV City Attorney ATTEST: Date: /a•L�l By: I/WWNt'VL �IC/tr tV`� Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: 1z 3 --2 By: au Detweil cr ation & Senior Services Director CONTRACTOR: Kathryn Kramer, a sole proprietor K] K,„, o= v zI I 4�.tkr .l wmPV LccjdrQr Slgn� to Prince Print Title Signature Dale Print Name Print Title 5%b1 Carlin W�5'f yv�ln$�'er CA 426$3 Business Mailing Address, Cit ,State [END OF SIGNATURES] Attachments: Exhibit A — Representative Approval Form Kathryn Kramer 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 O NO BACKGROUND: YES NO CLEARED CLEARED TO YES NO WORK PHOTO TAKEN: YES D NO CONTRACTOR YES NO NOTIFIED BY EMAIL Kathryn Kramer A-1 INDEPENDENT CONTRACTOR AGREEMENT RECREATION INSTRUCTOR This Independent Contractor Agreement ("Agreement") is made and entered into as of this 20th day of June, 2013 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Kathryn Kramer, L(} a Sole Proprietor ("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 this reference, and as 17,J approved in writing by City. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: tionobtau 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 Contractor an amount equal to 70 or 65 per cent of the amount of the total enrollment fees collected (see below), minus the non-resident fee and a Five Dollar ($5.00) per person administration fee for each Class held - 2.2 For Classes held at the OASIS Senior Center that begin at 5:00 p.m, or later, City shall pay Contractor within twenty one (21) business days after the last Class meeting. For each Class that starts before 5:00 p.m., City shall pay the Contractor an amount equal to seventy percent (70%) 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. For each Class that starts at 5:00 p.m. or later Monday through Friday, or meets anytime on Saturday or Sunday, City shall pay the Contractor an amount equal to sixty-five percent (65%) 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. 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. 2.4 (If applicable) Contractors providing Classes or Programs at Mariners Elementary School and/or Newport Elementary School ("Schools") shall submit to City written notice of actual costs incurred to conduct the Class or Program at the Schools. Subject to City's written acceptance of Contractor's actual costs, City shall, within twenty-one (21) business days after the last Class or Program meeting, reimburse Contractor one hundred percent (100%) of the actual costs incurred. Kathryn Kramer 1 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 (if applicable). Such material fees shall be collected by Contractor at the first Class meeting. 3.2 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 Contractor. Publicity may also include flyers created by City or Contractor. Contractor - created flyers 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 for it. 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 at least five (5) business days before the workshop begins; or 3.4.3 The Class is canceled by City or Contractor. In the latter instance, Contractor must provide 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:l/newportbeachca,gov/index.aspx?page=1432. Contractor is responsible for requesting log -in and password information from City. 4. CONTRACTOR DUTIES 4.1 Contractors. Contractor hereby certifies that it, 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. Kathryn Kramer 2 4.2 Representatives. Contractor shall provide City with the name(s), address(es) and phone numbers) 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 City a completed Form for each 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: C,U(, l will not be using Representatives or employees. I will be using Representatives. Any completed and approved Form shall be incorporated herein by reference. l 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 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 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. Kathryn Kramer 3 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 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 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 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. 4.8 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, Contractor must: �lTl 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 at least twelve (12) hours prior to any Class cancellation. 4.9.1 City urges Contractor to get a substitute Representative when- ever possible instead of canceling 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 City. 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 is held in the Fall. Kathryn Kramer 4 4.12 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." 4.13 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 Contractor online through the instructor login. 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 Injuries or Damages. Immediately report to the Recreation and Senior Services Project Administrator named in Section 5, by phone or e-mail, 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; 4.14.4 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; 4.14.5 Ensure that any music or sound system is kept at levels that will not interfere with other classes or create a public disturbance/nuisance; 4.14.6 Close and secure the room or building at the end of each Class; 4.14.7 Turn off any lights, heat, air conditioning, or other utilities when Class is finished; 4.14.8 Complete and return the quarterly "Contract Class Schedule" requested by City if Contractor wishes to be a part of the marketing materials; 4.14.9 Know facility rules and regulations and provide pertinent information (e.g., refunds) to participants; 4.14.10 Pay a $20 lost key/replacement fee when Contractor requests replacement key; and 4.14.11 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 this reference. Contractor's signature on this Agreement signifies acknowledgement of receipt of the Contractor Handbook. Kathryn Kramer 5 4.15 Contractor Photo ID Badge. Contractor and its 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 $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. 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. 5.2 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn.: Recreation Supervisor Recreation and Senior Services Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 5.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at the contact information provided on page 12 of this Agreement. 6. INDEPENDENT CONTRACTOR The parties intend and agree that at all times during the performance of services under this Agreement, 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 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. 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 1099 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 Kathryn Kramer 6 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 Manager or 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 California Municipal Athletic Federation ("SCMAF") or providing its own coverage. If a Contractor elects to obtain its 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 with respect 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 Contractor's operations or Service provided to City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of 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, or 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, 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 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 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 City's Risk Manager or his/her designee. Kathryn Kramer 7 I i�rz wfcc� OAE(� 7.4 Please initial the statement that applies: N'\A '-���dle. S uas.K-S Contractor shall provide a copy of the General Liability Insurance with Additional Insured Endorsement that meets the above requirements. 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. 1 have reviewed the 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 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 in the amount of up to $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 may the parent or guardian of a minor be denied access to a Class. 9. TRANSPORTING OF MINOR PARTICIPANTS 9.1 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. 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'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 Kathryn Kramer 8 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. 11, 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. 12. 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 in 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. 13. INDEMNIFICATION 13.1 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. 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 Kathryn Kramer 9 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. 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 (Govt. Code §§ 900 et 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. Kathryn Kramer 10 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 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 this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 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 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. 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] Kathryn Kramer v 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT NEY'SOFFICE Date: S/ By: C Aa . Harp City Attorney ` ail ATTEST: Date: l7 / • ZI-I3 By: W W Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: %0 • t • t3 By: LakaNpetweiler Rec ion & Senior Services Director CONTRACTOR: Kathryn Kramer a Sole Proprietor �\/�. �v i, l 8•/f3 kailnr�v. KraMY GwtUncl 7.njtr..cter Signaturek- Date Print Name Print Title Signature Date Print Name Print Title 25032 AciR-la rko Or. l�gvno tyi3i.�a-1 CA 01-LU11 Business Mailing Address, Cily, State i—`�L p `� [END OF SIGNATURES] Attachments: Exhibit A—Representative Approval Form Kathryn Kramer 12 EXHIBIT A REPRESENTATIVE /SUBCONTRACTOR APPROVAL FORM PmAsr�PRiN7,LFGIBL CONTRACTOR NAME:V-oA-w-)'� U SUBCONTRACTOR NAME: ADDRESS: CITY, STATE ZIP: DATE OF BIRTH: E, UaL: !SIGNATURE OF CONTRACTOR: DATE 5/2,3 CLIY-V-19Kl COtEPAQL#; FINGERPRINTS PAID FOR: Ez YES No S,r.krF Sic=kURn/DATr, BACKGROUND: YES No CLEARED STAFF SIG t'xruu,/D.kTr, CLEARED TO EZ YES No WORK SrAllr SIGNATURE DxmRrcrqvi.'m PHOTc, TAKEN: Lz YES J No STAFF STN'A Ui��,l DAU, CONTRACTOR CA YES No NOTIFIED BY EMAIL Srm,' v SmNKru u./D-Am, vit Aun Ll Dv lumm, DiRE ORI NR DATE V & STmoRs N DEPARIMM*