HomeMy WebLinkAboutC-4258 - Independent Contractor Agreement Recreation Instructor'0 CITY OF NEWPORT BEACH
V, Recreation & Senior Services Department
N
_7 INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is made and entered into as of this 1st day of June 2009 by and between the City of
Newport Beach, California, a Municipal Corporation and Charter City ( "City"), and Nadia Dorsey - Sole
Proprietor, DBA Spectrum Languages (Instructor) to provide the classes or
programs in Adult/Youth Enrichment hereby agreed upon, as scheduled and described in the Newport
Navigator, which is incorported herein by this reference, and as approved in writing by the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERM
The term of this Agreement shall commence on the above written date, and shall terminate on the
30`h day of September 2010 unless terminated earlier as provided herein.
2. COMPENSATION
City will pay Instructor within 21 business days after their last class meeting. City will pay the
Instructor the following percentages of the amount of the total enrollment fees collected below,
minus the non - resident fee and a $3 per person administration fee for each class held:
• All Locations except Newport Coast Community Center & Summer Camps — 65%
• Newport Coast Community Center (excluding summer camps) — 60%
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. 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.
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 before the second class meetings;
• Drop a one -day workshops 5 business days before the workshop; or
• The class is canceled by the City or Instructor.
The Instructor must provide the City with all required paperwork.
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, representatives, 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, representatives
and employees prior to any of them performing any services under this Agreement. A
current roster of instructors, representatives, and employees must be provided prior to new
instructors, representatives and employees being approved. All instructors must be able to
provide proof of legal right to work in the United States.
B. Representatives/Employees. Instructor shall provide the City with Name, Address and
Phone Number of all representatives or employees who will be providing any services
pursuant to this Agreement. All representatives or employees must comply with the City's
fingerprint policy (Section 8). Please mark the following that apply:
I will not be using representatives or employees.
I will be using representatives or employees (Please complete Exhibit A).
Instructor must notify the City in writing at least thirty (30) calendar days before the start of
the first class or program with any additions or deletions to Exhibit A. 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 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 representatives,
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. Class Size. Instructor shall determine the minimum and maximum number of participants
required for each class in cooperation with City staff. The City can determine the
minimumimaximum number of participants in a class to ensure the quality and, safety of the
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 of such approved cancellation, Instructor 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 will be cancelled 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 cancelled 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), subject to paragraph 14
of this Agreement. 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 cancelled
for two (2) consecutive quarters due to lack of enrollment, the class will not be scheduled
again until City determines that public demand has increased.
E. 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 at least 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.
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 and
Participants twelve (12) hours prior to any class cancellation.
City urges Instructor to get a substitute, whenever possible, instead of cancelling classes.
All Instructor employees or representatives must be fingerprinted and clear a background
check before teaching a class as provided in paragraph 8 of this Agreement. Instructor shall
obtain City's prior written approval of any substitute instructor. When cancelling a class,
Instructor shall contact all participants as soon as possible.
G. Contact Information. Instructor is required to notify City in writing of any name, address,
telephone number, email, website or direct deposit payment changes within 48 hours of
such change.
H. Training. Instructor or Instructor's authorized representative must attend the Annual
Instructor Training on Wednesday, May 12, 2010, at Newport Coast Community Center
(6401 San Joaquin Hills Road, Newport Coast, CA 92657) from 5:00 — 8:30pm. Failure to
attend without prior written approval shall result in City retaining an additional 5% of the total
enrollment fees collected.
I. 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 and in accordance with posted hours and availability
limitations.
vii. 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. Schedule 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
completed 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 when Instructor requests replacement key.
xv. Abide by all City policies and procedures including, but not limited to, the
requirements set forth in the Newport Navigator and the Contract Instructor's
Handbook 2009 -10, which is attached hereto and incorporated by this reference.
Direct Deposit: All Instructors are required to use direct deposit for payments made from the
City pursuant to this Agreement.
K. Email — All instructors are required to have an email address.
L. Instructor ID Badge — Instructors and their employees /representatives are required to wear
Recreation Instructor ID Badge provided by the City at all times while teaching. Pay a $5
Instructor ID Badge lost/replacement fee will be charged. Instructor ID Badges are replaced
each year upon renewal of contract.
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 representative. 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
General 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 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 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.
Please mark the following that apply:
I am attaching a copy of the General Liability Insurance with Additional Insured
/ Endorsement that meet the above requirements. (Please see Exhibit D).
I will be using the City provide insurance through Southern California Municipal Athletic
Federation (SCMAF) and will pay all required fees quarterly billed by the City. Please see
Contract Instructor Handbook 2009 -10 (Exhibit B) for complete information.
7. COMPLIANCE WITH ALL LAWS
Instructor, and his/her employees, agents and representatives 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 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 or assisting with any class or program. Such Instructors and their
employees, agents and representatives are required to submit fees in the amount of $54 per person
to the City of Newport Beach, Recreation & Senior Services Department, to cover all costs
associated with fingerprinting through the City of Newport Beach Police Department and the
Department of Justice. Fingerprints 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 offske
location, Instructor, or Instructor's employees, agents or representatives, 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, Barn 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 Instructor solely
for administration of classes and performing City business. Instructor will take reasonable steps
consistent with the law to prevent distribution of such information. Instructor's obligations under this
paragraph 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 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. 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. A copy of your Business
License must be submitted with this agreement Please see Exhibit C.
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, representatives,
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.
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 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.
15. 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.
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.
19. 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.
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
By:
yne D.-Reatharnp
Assistant City Attorney
ATTEST^
By:
Leilani Brown, City Clerk
INSTRUCTOR - Spectrum Languages
Signature Nadia Dorsey
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
u Detweiler, Director
& Senior Services
spa; /6 i
Date Signed
Before submitting your contract package to the City, the following documents must be completed and or endosed:
Exhast A - Compieted List of Contmct iwtmcbr Representative, Empbyee and/or Agent Names Form
Exhibit C - Copy of valid CilyofNewport eeacn Business License, and
Exhibit D - Insurance Certificate with Additional Insured Endorsement if not using SCMAF Insurance Plan
Exhibits: A - Contract Instructor Representative, Employee and/or Agent Farm ✓
B-- Contract Instructor Hand ook 2009-10
C - Business License
D - Certificate of Liability Insurance with Additional Insured Endorsement s�
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CITY OF NEWPORT BEACH
a
SPECTRUM LAIMAOSS ACCOUNT NUMBER:
EXPIRATION DATE: 09/30/2009
INSTRUCTIONS AND CONDITIONS
Welcome to the City of Newport Beach, and thank you for your business tax payment. This business tax certificate is evidence that the
named business has paid a tax to conduct the business activity designated, within the City of Newport Beach, until the expiration date shown.
Please notify the Revenue Division immediately If any of the information on the ced'rticate changes.
This certificate is valid only at the address indicated and must be displayed in a conspicuous location. If your business Is not conducted at a
Permanent IocaSon Municipal Code requires that any representative, while tmnsacitng business within the city, carry this certificate.
This business tax certificate does not authorize the named business to conduct any activities regulated by the City of Newport Beach or other
agencies. Authorization for such activities must be obtained from the appropriate departments prior to application for business tax. Certificates
are not transferable to any other party or person and are not pro -rated. Refunds are hot provided once the certificate has been issued.
Your business tax certificate is valid until the expiration date, and must be renewed annually prior to that date. Changes in type of ownership
(i.e. from a soleproprietorship to a partnership or LLC), nature of business, or ownership void the current cer if tate and require filing of and
payment for a new application. Additional certificates are required if additional types of business activity are Initiated at the same address, or
additional locations of the same business are established (Municipal Code sections 5.04 through 5.08).
For your convenience, the Revenue Division will mail a courtesy renewal notice, prior to the expiration date, to the billing address of record.
Nan -receipt of the notice does not alleviate the requirement to renew. Penalties are imposed for late renewal at a rate of 25% per month to a
maximum of f00% of the base tax..
The Revenue Division is available to.answer any questions regarding business tax certification and requirements. Cell (949) 644-3141; email us
at: RevenueHelp@city.newpon-beach.ca.us, or visit us on the Internet at wwwci newoort� beaus and view the Municipal Code on-line.
DISPLAY CONSPICUOUSLY AT PLACE OF BUSINESS FOR WHICH ISSUED
THIS TAX PAYMENT EXPIRES:
SERVICE ADDRESS:
SPECTRUM LAROOAOES
BUSINESS CATEGORY:
CITY OF NEWPORT BEACH
BUSINESS TAX CERTIFICATE
09/30/2009 ACCOUNT NUMBER:
MISC SCHOOLS A EDUCATIONAL SVC
SELLERS PERMIT: NO SELLERS PERMIT
OWNER/PRINCIPAL NAME:
DORSEY, RADIA
OWNERSHIP TYPE:
SOLE PROPRIETORSHIP
TAX INCLUDES PAYMENT FOR:
0.00 EMPLOYEES
DATE OF ISSUE: 08/20/2001
PRINT DATE: 05/26/2009