HomeMy WebLinkAboutC-4158 - Independent Contractor Agreement Recreation InstructorCITY OF NEWPORT BEACH
J Department of Recreation & Senior Services
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is made and entered into as of this 3rd day of March 2009 by and between
the City of Newport Beach, California, a Municipal Corporation and Charter City ( "City "), and
Bertoia Group, Inc., DBA Stroller Strides a California corporation ( "Instructor ") to provide the
classes or programs in Fitness and Exercise hereby agreed upon, as scheduled and
described in the Newport Navigator, which is incorporated herein by this reference, and as
approved in writing by City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 3rd day of March 2010 unless terminated earlier as provided herein.
COMPENSATION
City will pay Instructor in accordance with the payment schedule set forth in the Contract
Instructor Handbook ( "Handbook ") which is incorporated herein by this reference. City
will pay an amount equal to 60% of the total enrollment fees collected, minus the non-
resident fee and a $3 per person administration fee for each class held at Newport
Coast Community Center.
City will pay an amount equal to 70% of the total enrollment fees collected, minus the
non - resident fee and a $3 per person administration fee for each class held at locations
other than Newport Coast Community Center.
3. DUTIES OF CITY
A. Registration. City shall register all participants for classes and collect all
enrollment fees. Instructor is authorized to collect registration forms on behalf of
participants and turn them into the City within forty -eight (48) hours of receipt.
Instructor may allow participants one free class session as a trial prior to
payment of registration fees. All fully completed and executed registration forms
for all participants, either trial or otherwise, shall be delivered to City not less
than twenty -four hours in advance of the class starting. Instructor shall not
accept enrollment fees directly from a participant unless the City approves, in
writing, the acceptance of enrollment fees by the Instructor. Instructors shall
only collect materials fees that are pre- approved by the City and published in
advance in the Newport Navigator. Such materials fees should be collected by
Instructor at the first class meeting.
B. Publicity. City shall provide publicity for the class in the Newport Navigator,
which is published four times a year. City shall have the sole discretion to
decide what information will be included in the Newport Navigator about the
class and the Instructor.
INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group — Stroller Strides
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. Refund Processing. City shall provide refunds to participants who drop the
class, after Instructor has provided the City with all required paperwork. Refund
policy is set forth in the Handbook.
E. Class Roster. City shall provide class rosters to Instructor online. Instructor will
request a log -in and password from City. The City will not mail, fax or email
rosters to instructors.
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 the services
described above and in the course outline submitted to City. City staff must
approve in writing all assigned instructors, subcontractors and employees prior to
any of them performing any services under this Agreement. A current roster of
instructors, subcontractors, and employees must be provided prior to new
instructors, subcontractors and employees being approved. All instructors must
be able to provide proof of legal right to work in the United States.
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. Instructor shall 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):
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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.
INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group — Stroller Strides
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.
E. Class Size. Instructor shall determine the minimum and maximum number
of participants required for each class. Instructor or Instructor's authorized
representative is required to attend the first class meeting of all class
offerings advertised in the Newport Navigator unless Instructor cancels the
class three (3) business days prior to the start date, with the prior written
approval of City. In the event that the minimum number of participants is not
met by the first class meeting, the class will be canceled and the Instructor
shall not be compensated for attending the first meeting or for any cancelled
class. Instructor 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 will be held as scheduled (even if any of the initial
participants subsequently drop the class). If the demand is such that an
additional class could be offered, it shall be taken under consideration and
negotiated by City and instructor. 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.
F. 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. Notify City twenty -four (24) hours in advance;
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.
G. 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
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INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group — Stroller Strides
classes. City must approve all substitute instructors. When canceling
class, Instructor shall contact all participants as soon as possible.
H. Contact Information. Instructor is required to immediately notify City of any
name, address, or telephone number changes.
Training. Instructor or Instructor's authorized representative must attend the
Annual Instructor Training on Wednesday, May 13, 2009 at Newport Coast
Community Center (6401 San Joaquin Hills Road, Newport Coast, CA
92657) from 5:30 — 7:OOpm. Failure to attend shall result in City retaining an
additional 5% of the total enrollment fees collected.
J. Other Requirements. Instructors shall:
i. Cooperate fully with all reasonable requests from City staff.
ii. Maintain the highest degree of participant safety possible.
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 cancelled 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 unless participants continue to use public City facilities for
personal use without conflict with other scheduled activities.
vii. Receive prior written approval from City of all printed materials that
contain or display City's logo, including, but not limited to, 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. Complete and return the quarterly "Contract Class Schedule" on the
date stated which will be emailed to the Instructor. Instructor is given
two (2) weeks to return the quarterly schedule back to the City.
xiii. Know facility rules and regulations and provide pertinent information
(i.e. refunds) to participants. (Copy provided)
xiv. Pay a $20 lost key /replacement fee.
xv. Abide by all City policies and procedures including, but not limited to,
the requirements set forth in the Classes Instructor's Handbook,
which is attached hereto and incorporated by this reference.
K. Direct Deposit. All Instructors are required to use direct deposit for payments
made from the City pursuant to this Agreement.
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INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group — Stroller Strides
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 two million dollars ($2,000,000) 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 two million dollars ($2,000,000) per occurrence.
Evidence of insurance certificate shall be sent to the Recreation & Senior Services
Department and must be approved by the City Risk Manager 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 Recreation & Senior Services Department, 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.
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. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
All Instructors and their employees, agents and subcontractors must submit to a
criminal background investigation by providing a complete set of fingerprints to City
at least thirty (30) calendar days prior to teaching or assisting with any class or
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INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group - Stroller Strides
program. Such Instructors and their employees, agents and subcontractors are
required to submit fees in the amount of $52 per - person to the City of Newport
Beach, Human Resources Department, to cover all costs associated with
fingerprinting through the City of Newport Beach Police Department and the
Department of Justice. Fingerprints are required to be updated every five (5) years.
This requirement is mandatory. 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. By signing this
Agreement, Instructor agrees to the provisions of this Paragraph.
9. 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 Supervisor or Recreation Manager at the Recreation & Senior
Services Office at 949 -644 -3151 (Monday through Friday, 8am to 5pm.), or the Park
Patrol at 949 - 795 -2381 (Monday through Friday, 5 to 9pm, and Saturday and
Sunday, 9am to 5pm.) During all other hours, Instructor shall contact the Newport
Beach Police Department for assistance.
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 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. All class rosters, class participant
addresses and contact information, shall be used by the City solely for
administration of classes and performing City business. City will take reasonable
steps consistent with the law to prevent distribution of such information. Instructor's
obligations under this clause shall survive the termination of this Agreement.
11. 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.
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
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INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group — Stroller Strides
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.
13. 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 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.
lntellectual'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.
14. TERMINATION
Both City and Instructor shall have the right, at their sole discretion and without
cause, of terminating this Agreement at any time by giving three (3) calendar days
prior written notice to the other. 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.
15. CONTROLLING LAW AND VENUE
The taws 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.
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INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bertoia, Bertoia Group — Stroller Strides
16. 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.
17. 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.
18. 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.
14. 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.
20. 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.
(Balance of this page intentionally left blank)
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INDEPENDENT CONTRACTOR AGREEMENT
Zoe Bennis, Berloia Group — Stroller Strides
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By: ZZ
'Mynet a D. 13dauchatT15,
Assistant City AttBrDiy
City of Newport Beach
ATTES
By: *k4% JQ /6v�
Lollar] Brown,
City Clerk
City of Newport Beach
INSTRUCTOR
CITY OF NEWPORT BEACH,
A M icipal Corporaf n
By,
V
a Detweiler,
au
& Senior Services
Director
City of Newport Beach
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By: 3 ��/0
Signatur of President or Vice President Date Signed by President of Vice President
�fr�)1(& pm` GuAt-
Please print name & title
Signature of Treasure or Secretary I Date Signed by Treasurer or Secretary
Please print name & title
Attachment: Classes Instructors Handbook
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