HomeMy WebLinkAboutC-4345 - Independent Contractor Agreement Recreation InstructorCITY OF NEWPORT BEACH
Recreation & Senior Services Department
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 Yoga Works, Inc., a
California corporation (Instructor) to provide the classes or programs in Adult Fitness 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"' 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 — 70%
• Newport Coast Community Center (excluding summer camps) — 70%
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.
INDEPENDENT CONTRACTOR AGREEMENT
Page 2
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 marls the following that apply:
I will not be using representatives or employees.
70 1 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 12840 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 minimumlmaximum 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
INDEPENDENT CONTRACTOR AGREEMENT
Page 3
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;
Ili. 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.
Other Requirements. Instructors shall:
I. Cooperate fully with all reasonable requests from City staff.
11. 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, iftwhen a class is cancelled and confirm all cancellations
and/or make -up classes, in writing, with City staff.
INDEPENDENT CONTRACTOR AGREEMENT
Page 4
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 retum
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.
J. 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.
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 histher 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 Vll (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.
INDEPENDENT CONTRACTOR AGREEMENT
Page 5
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.
a. 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 offsite
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, 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 r
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.
INDEPENDENT CONTRACTOR AGREEMENT
Page 6
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.
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 AgreemenL 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.
INDEPENDENT CONTRACTOR AGREEMENT
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.
18. 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.
INDEPENDENT CONTRACTOR AGREEMENT
Paso 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and
year that written above.
APPROVAD AS TO FORM:
OFFICE OF THE CITY ATTORNEY
ey:
ynel . Beft i p
Assistant City Atl
ATTEST:
CITTof NEWPORT 9EACH,
A Municipal Corporation
sea l �R
PaNBiBm
Betofe submlBlrpyvurmnlruf padraep to the City, make sure fherollowMe eroancfomd
/) 1cuAMa urflro xkP,xJuu,l,w.t(,v,a aVebwl wnrecf wlUbe nwded book hvpw roaada aRwP^wobeMS);
21 bkRlbttA-CornplenvdlJsf e/Confreol lnHnrcfw Repreasnle0ve, finployeeandmr Aeam Nemec Form;
2) Ekhlbk C-LbpyWvaNtl clry o7NewpoR Beech Baelnex L/ronee; erW
d/ Lanlba0-Inauranoe Ceelllbmo wkM1 adtlWenellncured6ndowmnenl Arwf uv4g SCAlAFlnvuraneoWm
:MNMte: A-Conexll,wdccbr aeproaanlWw,Employes andlnr♦penl Gnrm l
B -Contract In4ruclofe HeMbook 2008.10
C-Boeineee ofLiab
D-CaUOwb el Lleblllty liwwenu with Addkbnnl Insuwn Endorsement Pel
Z0 30vd 53NOC (IMM03 OTESZ14880T 86:80 608Z/6T/90
(
\
)
2
!
\
/
�
k
§
/
/
.�13.
}
I;
®
\
\
)\
z
_
§
`
k)
\�
@
)/
\
(D/\
`
\
9
�
\
0
/
2
!
)
0
g z
, )
-
@ [
J\
z]!
_
§zy
_ /o0
-
CD
(
/
�
k
§
/