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HomeMy WebLinkAboutC-4205 - Independent Contractor Agreement Recreation InstructorCITY OF NEWPORT BEACH partment of Recreation & Senior Serv, .s INDEPENDENT CONTRACTOR AGREEMENT This Agreement is made and entered into as of this 1;�' day, ofA. 2009, by and between the City of Newport Beach, California, a Municipal Corporation and Chart r City ("City"), and Jennifer Priest V("Instructor") to provide classes for American Red Cross Water Safety during the Aquatics Training Academy hereby agreed upon, as scheduled for May 15-17 and May 29-31, 2009. 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 above written date, and shall terminate on the 1S` day of June, 2009, unless terminated earlier as provided herein. 2. COMPENSATION City will pay Instructor one thousand two hundred dollars and 00/100 ($1,200.00) for Instruction services in cooperation with the Recreation and Senior Services Department for the American Red Cross Water Safety Instructor course. City may renegotiate compensation with Instructor anytime during the term of this Agreement, if the City has to take on additional responsibility. 3. DUTIES OF CITY A. Registration. City shall register all participants for classes and collect all enrollment fees. Instructor shall not accept enrollment fees directly from a participant unless the City approves, in writing, the acceptance of enrollment fees by the Instructor. B. Publicity. City shall provide publicity for the class. C. Class Facility. City shall provide a location for the class without charging Instructor any rental fees, unless otherwise agreed by the parties. City shall also provide all necessary utilities. D. Class Roster. City shall provide one class roster to Instructor prior to each class start date or verbal roster updates can be obtained from City by phone or in person. The Instructor has decided that the Instructor wishes to receive the class rosters by (check one): _ Internet _ Mail Fax Email 4. INSTRUCTOR DUTIES A. Instructors. Instructor hereby certifies that he/she or any instructor, subcontractor, or employee who will be teaching the class or assisting in teaching the class is qualified to do so, and qualified to perform in conformance with the ARC instruction materials. B. Subcontractors/Employees. Instructor shall provide the City with Name, Address and Phone Number of all subcontractors or employees who will be providing any services pursuant to this Agreement. Please mark all of the following that apply: I will not be using subcontractors. will be using subcontractors (Please list names below): I will be using employees (Please list names below): INDEPENDENT CONTRACTOR AGREEMENT Page 2 Name Address (Street, City, State & Zip) Phone If any additions or deletions to the above list are made, Instructor must notify the City at least thirty (30) calendar days before the start of the first class or program. Instructor 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. C. Supplies/Equipment. Instructor shall be responsible for providing all supplies, equipment, personnel, materials, and any additional publicity desired for the class, at Instructor's sole expense, unless otherwise agreed to in writing by City. Instructor shall also be responsible for repairing and maintaining all equipment and supplies in good and working condition. D. Anti -Discrimination Laws. Instructor 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 or sexual orientation, be excluded from participation in or be denied the benefits of the services provided pursuant to this Agreement, and Instructor agrees not to discriminate on said grounds in the hiring and retention of employees and subcontractors, unless authorized under Section 12940 of the California Government Code. Instructor shall, where applicable, conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. D. Use of Non -City Facilities for Classes. If Instructor desires to conduct the class at his/her place of business, or some other non City -owned site or facility, Instructor must: i. Obtain City approval in writing; ii. Provide sufficient parking for all participants; iii. Post signs at the site to direct participants to the location of class; and iv. Allow access to City staff to the location when requested. F. Absences. Instructor shall obtain permission from City one (1) week prior to any planned absence from the class. In the event of illness, Instructor is required to notify City twelve (12) hours prior to any class cancellation. City urges Instructor to get a substitute, whenever possible, instead of canceling classes. City must approve all substitute instructors. When canceling a class, Instructor shall contact all participants as soon as possible. G. Contact Information. Instructor is required to immediately notify City of any name, address, or telephone number changes. H. Other Requirements. Instructors shall: i. Cooperate fully with all requests from City staff. ii. Maintain the highest degree of participant safety possible. INDEPENDENT CONTRACTOR AGREEMENT Page 3 iii. Immediately report to the Recreation & Senior Services Office any injuries as a result of class participation. iv. Immediately report to the Recreation & Senior Services Office any damage to the classroom or program facility that could cause potential injury to a class participant, or other needed maintenance repairs. V. Contact participants, if/when a class is canceled and confirm all cancellations and/or make-up classes, in writing, with City staff. vi. Clear all participants from the designated class area at the end of class time. vii. Receive prior written approval from City of all printed materials, including class instruction materials and press releases, prior to distribution. viii. Ensure that any music or sound system is kept at levels that will not interfere with other classes or create a public disturbance/nuisance. ix. Close and secure the room or building at the end of each class. X. Turn off any lights, heat, air conditioning, or other utilities when class is finished. A. Scheduling make-up classes in advance through City. xii. Know facility rules and regulations and provide pertinent information (i.e. refunds) to participants. (Copy provided). xiii. Paying a $20 lost key/replacement fee. 5. INDEPENDENT CONTRACTOR The parties intend and agree that at all times during the performance of services under this Agreement, Instructor shall act as an Independent Contractor and shall not be considered an agent or employee of City. As such, Instructor 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 employees or subcontractors. Instructor 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 Instructor other than as provided herein. City reserves the right to employ other independent contractors and instructors who teach the same or similar classes. 6. INSURANCE Liability Insurance. Instructor 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 insureds in the amount of one million dollars ($1,000,000) per occurrence. Evidence of insurance shall be made available to City's Risk Manager and approved by her prior to the first class/day of instruction. Instructor shall have the option of purchasing coverage through the City of Newport Beach's Special Event insurance program, or providing his/her own coverage. If an Instructor 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). Said policy must also provide a written 30 -day notice of cancellation (10 -day written notice for non-payment of premium) to the City of Newport Beach Risk Manager, at the following address: 3300 Newport Boulevard, Newport Beach, CA 92663. Workers' Compensation Insurance. By executing this Agreement, Instructor certifies that Instructor 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. Instructor shall carry the insurance or provide for self-insurance required by California law to protect said Instructor from claims under the Workers' Compensation Act. INDEPENDENT CONTRACTOR AGREEMENT Page 4 7. COMPLIANCE WITH ALL LAWS Instructor, and his/her employees, agents and subcontractors shall at all times observe and comply with all laws, ordinances and regulations. 8. TRANSPORTING OF MINOR PARTICIPANTS Unless the class or program specifically involves travel or transportation of minors to an offsite location, Instructor, or Instructor's employees, agents or subcontractors, shall not transport any minor participant by vehicle or otherwise. If, after the conclusion of any class session, a minor participant has not been picked up, Instructor 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, Instructor shall contact the City Recreation Coordinator or Recreation Manager at the Recreation & Senior Services Office at 949-644-3151 (Monday through Friday, 8:00 a.m. to 5:00 p.m.), or the Park Patrol at 949-795-2381 (Monday through Friday, 5:00 p.m. to 9:00 p.m., and Saturday and Sunday, 9:00 a.m. to 5:00 p.m.) During all other hours, Instructor shall contact the Newport Beach Police Department for assistance. 9. 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 Instructor, shall remain the property of City. Instructor shall not release such information to others without the prior written authorization by City. Instructor shall not use such information for any other purpose than those authorized by City. This clause shall survive the termination of this Agreement. 10. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND PUBLICITY Instructor shall not include City's name, logos or insignia, or photographs of the class site or participants, in any publicity pertaining to Instructor'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. 11. 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. Instructor 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 or by accessing the City Website. In certain circumstances, Instructor 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 or by accessing the City Website. 12. INDEMNIFICATION General. Instructor shall defend, indemnify, 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 INDEPENDENT CONTRACTOR AGREEMENT Page 5 is in any way related to, the acts or omissions of Instructor, his or her employees, subcontractors, officers and agents in the course of performing services under this Agreement; however, Instructor shall not be required to indemnify City from any claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Intellectual Property. Instructor 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 Instructor of the legally protected rights of any third parties, with respect to works performed, logos displayed, or written or digital materials provided by Instructor 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 Instructor 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 Instructor to obtain the appropriate license to perform the material prior to the public performance. 13. TERMINATION City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving three (3) calendar days prior written notice to Instructor. In the event of termination under this Section, City shall pay Instructor on a prorated basis for any classes or programs that were actually taught by Instructor, if any, up to the effective date of termination. 14. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 15. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Instructor and City and approved as to form by the City Attorney. 16. 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 this Agreement or any other rule of construction which might otherwise apply. 17. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties, and all preliminary negotiations and agreements are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 18. 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. INDEPENDENT CONTRACTOR AGREEMENT Page 6 19. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY ATTEST: O� r 6WPOR By: p T Leilani Brown, City Clerk U 9 U n INSTRUCTOR By: Jennifer Priest Attachment A: Scope of Services CITY OF NEWPORT BEACH, A Municipal Corporation By Lauo Detwe r, Director of Recreation XP56enlor Services EXHIBIT A CONSULTANT Scope of Services I. SERVICES TO BE PROVIDED BY CONSULTAN A. CONSULTANT will teach the American Red Cross Water Safety Instructor (WSJ) course during the Aquatics Training Academy. II. SPECIFIC PROJECTS TO BE COMPLETED BY CONSULTANT Water Safety Instructor Course• CONSULTANT will work in cooperation with the Recreation & Senior Services Department on the instruction the American Red Cross (ARC) Water Safety Instructor (WSI) course. The CONSULTANT is required to follow the ARC instruction materials when teaching the course. The WSI course is expected to take 20 hours. Course will take place at the Marian Bergeson Aquatic Center located at Corona del Mar High School (2102 Eastbluff Drive, Corona del Mar, CA) May 15-17 and May 29-31. _ The CONSULTANT will be responsible for documenting and filing all necessary information with the ARC upon completion of the WSI course within 5 business days and provide ARC certifications to the City. Cost: $1200.00 Consultant Information Contact Person: Jennifer Priest 12