HomeMy WebLinkAboutC-4351 - Independent Contractor Agreement Recreation InstructorCITY OF NEWPORT BEACH
Department of Recreation & Senior Services
INDEPENDENT CONTRACTOR AGREEMENT
SENIOR SERVICES DIVISION
This Agreement is made and entered into as of this 17`" day of July 2009 by and between the City of
Newport Beach, California, a Municipal Corporation and Charter City ( "City'), and Susan Benon
( "Instructor") to provide the classes or programs in Bridge lessons hereby agreed upon, as
scheduled and described in the Newport Navigator and the OASIS News, which are 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 301' 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 an amount equal to 70% of the amount of the total enrollment fees collected, minus
the non - resident fee and a $3 per person administration fee for each class held.
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 and OASIS News. 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, and the OASIS News which is published 12 times a year.
City shall have the sole discretion to decide what information will be included in the
Newport Navigator and the OASIS News about the class and the Instructor. Publicity
may also include flyers created by the City. Instructor is not permitted to create their
own flyers without direct approval of City.
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.
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Benon Page 2
City shall provide refunds to participants who:
• Drop the class before the second class meeting;
• Drop a one-day workshop 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 unless prior arrangements have been made.
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, and materials, 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
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Benon
Page 3
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 in cooperation with City staff. The City can
determine the minimum /maximum 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 and OASIS News unless Instructor cancels the class two (2) business days
prior to the start date, with the prior verbal approval of City. City staff will verify that
the minimum enrollment for the class has been met at least two (2) business days prior
to the first class meeting, will notify the Instructor and ask if they wish to cancel the
class. In the event of such approved cancellation, City staff will inform all registered
participants. 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 the 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.
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 twenty -four (24) 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 notify the City staff 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
OASIS instructor training. 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:
L Cooperate fully with all reasonable requests from City staff.
ii. Maintain the highest degree of participant safety possible.
iii. Immediately report to the City via the OASIS Administration Office any injuries
as a result of class participation. OASIS Administration Office:
800 Marguerite Ave, Corona del Mar, CA 92625. (949) 644 -3244
iv. Immediately report to the City via the OASIS Administration Office any damage
to the classroom or program facility that could cause potential injury to a class
participant, or other needed maintenance repairs.
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Benon
Page 4
V. Confirm all class cancellations and /or make -up classes, in writing, with City staff
at: 800 Marguerite Ave, Corona del Mar, CA 92625
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.
viii. Schedule make -up classes in advance through City.
ix. 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.
X. Know facility rules and regulations and provide pertinent information (i.e.
refunds) to participants. (Copy provided).
A. Abide by all City policies and procedures including, but not limited to, the
requirements set forth in the Newport Navigator, the OASIS News and the
OASIS 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 -FOR SENIOR FITNESS CLASSES ONLY
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-
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Benon
Page 5
payment of premium) to the City of Newport Beach Recreation & Senior Services
Department, at the following address: PO Box 1768, Newport Beach, CA 92658 -8915.
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: N`A
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.
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. 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.
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
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Benon
Page 6
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. 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.
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
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.
13. 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.
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.
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Berton
fits —l51:1.DI51 =:11&1
Page 7
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.
R- IlkIi:W;204 _�ile]a
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.
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.
INDEPENDENT CONTRACTOR AGREEMENT
Contractor Name: Susan Simon Page 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day
and year first written above.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE OF THE CITY ATTORNEY A Municipal Corporation
By: By:
netb D. ea mp a a Detweiler,
Assistant City Attorney reation & Sent -Cir Services Director
ATTEST: �aEW�/yT
By:
Leilani Brown, City Clerk
41PORN�P
INSTRUCTOR — Contractor Name
By: dw
Signature of Principal Corporate Officer) Dale Signed
Susan Benon, Instructor
Please print name & title
Signature of Financial Officer (Treasure or Secretary) Date Signed
Please print name & title
Before submitting your ccintract package to the City, make sure the following are enclosed.
1) 3 copies of the signed contract (one original contract will be mailed back for your records after processing);
2) Exhibit A — Completed List of Contract Instructor Representative, Employee and/or Agent Names Form;
3) Exhibit C— Copy of valid City of Newport Beach Business License; and
4) Exhibit D —(Fitness classes only) Insurance Certificate with Additional Insured Endorsement if not using SCMAF
insurance Plan
Exhibits: A— Contract Instructor Representative, Employee andfor Agent Form Nh
B --OASIS Instructors Ha dbook 2009-10
C— Business License
D— Certificate of Liability Insurance with Additional Insured Endorsement (Fitness classes only) 1 ft-