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CITY OF NEWPORT BEACH
Recreation & Senior Services Department
PERSONAL TRAINER INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ( "Agreement°) is made and entered into
as of October 1, 2010 by and between the City of Newport Beach, a California
Municipal Corporation and Charter City ( "City"), and Daniel Kaczmarek, a sole
proprietor, ( "Contractor") to provide the classes or programs in Personal (fitness)
Training ( "Class" or "Program ") hereby agreed upon, as scheduled and described in the
Newport Navigator and /or OASIS News, which is incorporated 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 30th day of September 2011 unless terminated earlier as provided
herein.
2. COMPENSATION
City shall pay Contractor monthly provided that Contractor has had registered clients
during that month. City will pay the Contractor the following percentages of the amount
of the total enrollment fees collected, minus the non - resident fee and a five dollar and
no /100 ($5.00) per person administration fee for each registered session.
• Classes /Programs — 70%
City may renegotiate compensation with Contractor anytime during the term of this
Agreement, during the period that the Class is conducted should Contractor fail to
perform any of the terms contemplated herein.
The City pays Contractors electronically; the Contractor shall complete and return with
the contract documents the "Direct Deposit Authorization Form."
3. DUTIES OF CITY
A. Registration. City shall register all participants for individual training and shall
collect all enrollment fees. Contractor shall not accept enrollment fees directly
from a participant unless the City approves, in advance and in writing, the
acceptance of enrollment fees by the Contractor.
B. Publicity. City shall provide publicity for the Class in the Newport Navigator
(published on a quarterly basis) and /or the OASIS News (published on a monthly
basis). City shall have the sole discretion to decide what information will be
included in the Newport Navigator and /or the OASIS News about the Class and
the Contractor. Publicity may also include flyers created by the City or the
Contractor. Contractor created flyers must be approved in writing by the City
before distribution.
C. Class Facility. City shall provide a location for the Class without charging
Contractor any rental fees, unless otherwise agreed by the parties. The
Contractor will request dates and times, the City will inform the Contractor if the
facility is available. It is the Contractor's sole responsibility to request these
dates/times, the City will not schedule the Contractors Classes for them.
D. Refund Processing.
City shall provide refunds to participants when:
L The participant drops five (5) business days before the workshop begins;
or
ii. The class is canceled by the City or Contractor. In this instance, the
Contractor must provide the City with all required paperwork.
E. Class Roster, Sign -Out and Attendance Sheets. City shall provide class rosters,
sign -out sheets and attendance sheets to Contractor online via
http:// newportbeachea .gov /index.aspx?page =1432. Contractor is responsible for
requesting a log -in and password from the City.
4. CONTRACTOR DUTIES
A. Contractors. Contractor hereby certifies that he /she or any contractor,
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. Contractor is
responsible for all class curriculum development.
City staff must approve in writing all assigned contractors, representatives and
employees prior to any of them performing any services under this Agreement.
The City requires the Contractors and all representatives and employees of the
Contractor to be fingerprinted prior to performing services under this Agreement
in accordance with Section 8 below. A current roster of Contractors,
representatives, and employees must be provided prior to City approval of new
contractors, representatives and employees. All Contractors must be able to
provide proof of legal right to work in the United States. Contractor is responsible
for training, supervising, evaluating, scheduling, and any other requirements by
law for all contractors, representatives, and employees.
Independent Contractor Agreement Page 2
B. Representatives /Employees. Contractor shall provide the City with the Name(s),
Address(es) and Phone Number(s) of all representatives or employees who will
be providing any services pursuant to this Agreement. All representatives or
employees must comply with the fingerprint policy (Section 8).
Please initial the statement that applies:
1 will not be using representatives or employees.
I will be using representatives or employees. Attached please find as
Exhibit A, and incorporated herein by reference the full names, addresses
and phone numbers of all representatives or employees who will be
providing any services pursuant to this Agreement.
Contractor shall not subcontract or assign any portion of the rights, obligations or
duties required under this Agreement, without first obtaining prior written
approval from the City. Subcontracts, if any, shall contain a provision making
them subject to all provisions of this Agreement.
C. Anti - Discrimination Laws. Contractor 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 Contractor 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. Contractor shall, where applicable, conform to the
requirements of the Americans with Disabilities Act in the performance of this
Agreement.
D. Absences. Contractor shall obtain permission from City one (1) week prior to any
planned absence from the class. In the event of illness, Contractor is required to
notify City and Participants twelve (12) hours prior to any class cancellation.
City urges Contractor to get a substitute, whenever possible, instead of
cancelling Classes. Contractor shall obtain City's prior written approval of any
substitute Contractor. Any substitute contractor, representative or employee must
have completed a criminal background check pursuant to Paragraph 8 prior to
teaching any City programs or Classes.
When cancelling a Class, Contractor shall contact all participants as soon as
possible.
Independent Contractor Agreement Page 3
E. Contact Information. Contractor 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.
F. Other Requirements. Contractors 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 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. Schedule make -up sessions in advance.
vii. Know facility rules and regulations and provide pertinent information (i.e.
refunds) to participants.
viii. Abide by all City policies and procedures including, but not limited to, the
requirements set forth in the Newport Navigator and OASIS News.
G. Contractor Photo ID Badge. Contractors and their employees /representatives
are required to wear a City provided Contractor Photo ID Badge at all times while
engaging in services for the City. Contractor shall be required to pay five dollars
and no /100 ($5.00) for any lost/replacement Contractor Photo ID Badge.
Contractor Photo ID Badges are distributed upon renewal of Agreement with
City.
5. INDEPENDENT CONTRACTOR
The parties intend and agree that at all times during the performance of services under
this Agreement; Contractor shall act as an Independent Contractor and shall not be
considered an agent or employee of City. As such, Contractor 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. Contractor 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 Contractor other than as provided
herein. City reserves the right to employ other independent contractors and Contractors
who teach the same or similar classes. City shall provide Contractor with IRS 1090 or
other applicable IRS forms at the end of the calendar year for all fees paid to
Contractor.
Independent Contractor Agreement Page 4
6. INSURANCE
A. General Liability Insurance. Contractor 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 Management or their designee prior to the first Class /day of instruction.
Contractor 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 a Contractor 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 thirty
(30) day notice of cancellation (ten (10) day written notice for non - payment of
premium) to the City of Newport Beach Recreation & Senior Services
Department, at the following address: P.O. Box 1768/ 3300 Newport Boulevard,
Newport Beach, CA 92658.
B. Workers' Compensation Insurance. By executing this Agreement, Contractor
certifies that Contractor 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. Contractor shall carry the insurance or provide for self -
insurance required by California law to protect said Contractor from claims under
the Workers' Compensation Act.
C. Automobile Liability Coverage. Contractor shall maintain automobile insurance
covering bodily injury and property damage for all activities of the Contractor
arising out of or in connection with work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than one million dollars ($1,000,000) combined single limit for
each occurrence.
Please initial the statement that applies:
2AG Contractor is providing a copy of the General Liability Insurance with
Additional Insured Endorsement that meets the above requirements.
7. COMPLIANCE WITH ALL LAWS
Contractor, and his /her employees, agents and representatives shall at all times
observe and comply with all laws, ordinances and regulations.
Independent Contractor Agreement Page 5
8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
All Contractors and their employees, agents and representatives must submit to and
pass a criminal background investigation by providing a complete set of fingerprints to
the City at least thirty (30) calendar days prior to teaching, substituting for contractor or
assisting with any Class. Such Contractors and their employees, agents and
representatives are required to submit fees in the amount of up to seventy three dollars
and no /100 ($73) 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 may be
required to be updated every five (5) years.
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, Contractor agrees to the provisions of
this Paragraph.
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 Contractor, shall remain the
property of City. Contractor shall not release such information to others without the
prior written authorization by City. Contractor 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 Contractor solely for
administration of Classes and performing City business. Contractor will take reasonable
steps consistent with the law to prevent distribution of such information. Contractor's
obligations under this paragraph shall survive the termination of this Agreement.
10. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND
PUBLICITY
Contractor shall not include City's name, logos or insignia, or photographs of the Class
site or participants, in any publicity pertaining to Contractor'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.
Independent Contractor Agreement Page 6
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. Contractor 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, Contractor 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 Contract. All
Contractors must have a valid business license.
12. INDEMNIFICATION
General. Contractor shall indemnify, defend 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 Contractor, his or
her employees, representatives, officers and agents in the course of performing
services under this Agreement; however, Contractor shall not be required to indemnify
City from any claim arising from the sole negligence or willful misconduct of the
Indemnified Parties.
Intellectual Property. Contractor 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 Contractor of the legally protected
rights of any third parties, with respect to works performed, logos displayed, or written or
digital materials provided by Contractor 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 Contractor
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 Contractor 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
Contractor. In the event of termination under this Section, City shall pay Contractor on
a prorated basis for any Classes or Programs that were actually taught by Contractor, if
any, up to the effective date of termination.
Independent Contractor Agreement Page 7
14. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating
to it. Any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
15. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by
both Contractor and City and approved as to form by the City Attorney.
16. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of this Agreement or any other rule of construction which might otherwise
apply.
17. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties, and all preliminary negotiations and agreements are
merged herein. No verbal agreement or implied covenant shall be held to vary the
provisions herein.
18. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
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.
20. CLAIMS
The Contractor and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Contractor shall be
required to file any claim the Contractor may have against the City in strict conformance
with the Government Tort Claims Act (Government Code sections 900 et seq.).
Independent Contractor Agreement 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:
e e ucham aura De i r, Director
Y P
As ant t tic
ecreation & Senior Services
ATTEST:
B:DQ�►
Y
eilani in. City Clerk
CONTRACTOR: Daniel Kaczmarek <'FORNtP
By: c /k Signature
Print Name and Title: lo/ h-.ez�°z�vr�
Signature Da a
Print Name and Title:
Signature Data
Attachments: Exhibit A: Representatives and /or Employees of Contractor
Independent Contractor Agreement Page 9
INSTRUCTIONS FOR INDEPENDENT CONTRACTORS
Prior to submitting your completed contract package to the City, please ensure the
following documents are completed and /or enclosed:
1. Three copies of the signed contract (a completed original contract will be
mailed back for your records after processing)
2. Initial the appropriate statement on Page 3.
3. Copy of valid City of Newport Beach Business License; and
4. Initial the appropriate statement on Page 5 and enclosed Evidence of
Insurance (refer to Section 6 of the Contract).
General Liability Insurance Certificate with Additional Insured
Endorsement ; Workers Compensation Coverage; Automobile Insurance
Coverage
Independent Contractor Agreement Page 10
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