HomeMy WebLinkAboutC-4666 - Independent Contractor Agreement Recreation Instructor1
CITY OF NEWPORT BEACH
Recreation & Senior Services Department
INDEPENDENT CONTRACTOR AGREEMENT
SENIOR SERVICES
This Independent Contractor Agreement ( "Agreement ") is made and entered into
as this 15t day of October, 2011 by and between the City of Newport Beach, a California
municipal corporation and charter city ("City"), and June Briggs, a sole proprietor,
( "Contractor ") to provide the classes or programs in Geography ( "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:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on December 31, 2012 unless terminated earlier as provided herein.
2. COMPENSATION
2.1 City shall pay Contractor within twenty one (21) business days after the
last Class meeting. City shall pay the Contractor an amount equal to seventy percent
(70 %) 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 Class held.
Effective January 1, 2012, for each Class that starts at 5:OOpm or later, City shall pay
the Contractor an amount equal to sixty -five percent (65 %) 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.
2.2 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.
2.3 The City pays Contractors electronically; the Contractor shall be
responsible for ensuring an up to date "Direct Deposit Authorization Form" is on file with
OASIS Senior Center Administration Office staff.
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3.1 Registration. City shall register all participants for classes 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. Contractors shall only collect material fees that are
pre- approved by the City and published in advance in the Newport Navigator and /or the
OASIS News. Such material fees shall be collected by Contractor at the first class
meeting.
3.2 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.
3.3 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 for the Classes; 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.
3.4 Refund Processing. City shall provide refunds to participants when:
3.4.1 The participant drops the class before the second class meeting;
3.4.2 The participant drops a one (1) day or more workshop five (5) or
more business days before the workshop begins; or
3.4.3 The class is canceled by the City or Contractor. In the later
instance, the Contractor must provide the City with all required paperwork.
3.5 Class Roster, Sign -Out and Attendance Sheets. City shall provide class
rosters, sign -out sheets and attendance sheets to Contractor online via
htto:// newoortbeachca .govrindex.aspx ?oaae =1432. Contractor is responsible for
requesting a log -in and password from the City.
4. CONTRACTOR DUTIES
4.1 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 in the course
outline submitted to City which is incorporated herein by reference. Contractor is
responsible for all Class curriculum development.
4.1.1 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,
INDEPENDENT CONTRACTOR AGREEMENT Page 2
scheduling, and any other requirements by law for all contractors, representatives, and
employees.
4.2 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).
4.2.1 Please initial the statement that applies:
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"I a I 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. This information must
be updated with the Recreation and Senior Services Department each
time the Contractor adds or deletes representatives or employees.
4.2.2 Subcontracting. 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.
4.3 Supplies/Equipment. Contractor shall be responsible for providing all
supplies, equipment, personnel, materials, and any additional publicity desired for the
class, at Contractor's sole expense. Contractor shall also be responsible for repairing
and maintaining all equipment and supplies in good working condition.
4.4 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.
4.5 Class Size. Contractor shall determine the minimum and maximum
number of participants required for each class to ensure the quality and, safety of the
class. Contractor or Contractor's authorized representative is required to attend the first
Class meeting of all Class offerings advertised in the Newport Navigator and /or OASIS
News unless Contractor 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,
INDEPENDENT CONTRACTOR AGREEMENT Page 3
Contractor 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
shall be cancelled and the Contractor shall not be compensated for attending the first
meeting or for any cancelled Class. Contractor 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 shall be held as scheduled (even if any of the
initial participants subsequently drop the Class), subject to Section 14 of this
Agreement. If the demand is such that an additional Class could be offered, it shall be
taken under consideration and negotiated between City and Contractor. 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.
4.6 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 twenty -four (24) hours prior to any class cancellation.
4.6.1 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 Section 8 prior to teaching
any City programs or Classes.
4.6.2 When cancelling a Class, Contractor shall contact all participants
as soon as possible and confirm all cancellations and/or make -up classes, in writing,
with OASIS Senior Center Administration Office staff.
4.7 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.
4.8 Sign -Out Sheets. All Contractors must have participants sign in for each
Class. Sign in sheets along with Attendance sheets are available to the Contractor
online through their instructor login.
4.9 Other Requirements. Contractors shall:
4.9.1 Cooperate fully with all reasonable requests from City staff.
4.9.2 Maintain the highest degree of participant safety possible.
4.9.3 Injuries or Damages. Immediately report to the OASIS Senior
Center Administration Office any injuries as a result of Class participation, damages to
the classroom or Program facility that could cause potential injury to a participant and
any needed maintenance repairs. Contact the OASIS Senior Center Administrative
Office staff by phone or email.
4.9.4 Clear all participants from the designated Class area at the end of
Class time unless participants oontinue to use public City facilities for personal use
INDEPENDENT CONTRACTOR AGREEMENT Page 4
without conflict with other scheduled activities and in accordance with posted hours and
availability limitations.
4.9.5 Ensure that any music or sound system is kept at levels that will not
interfere with other classes or create a public disturbance /nuisance.
4.9.6 Close and secure the room or building at the end of each Class.
4.9.7 Turn off any lights, heat, air conditioning, or other utilities when
Class is finished.
4.9.8 Complete and return the quarterly "Contract Class Schedule"
requested by the City if Contractor wishes to be a part of the marketing materials.
4.9.9 Know facility rules and regulations and provide pertinent
information (i.e. refunds) to participants.
4.9.10 Pay a $20 lost key /replacement fee when Contractor requests
replacement key.
4.9.11 Abide by all City policies and procedures including, but not limited
to, the requirements set forth in the Newport Navigator and OASIS News and the
Contractor Handbook which is incorporated herein by this reference. Contractor's
signature on this Agreement signifies acknowledgment of receipt of the Contractor
Handbook.
4.10 Contractor Photo 1D 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. NOTICES
5.1 Unless otherwise indicated, all notices, demands, requests or approvals to
be given under the terms of this Agreement shall be given in writing, and conclusively
shall be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
Attn: OASIS Senior Center Administrative Office
Recreation Supervisor
City of Newport Beach
801 Narcissus Ave
Corona Del Mar, CA 92625
Phone: (949) 718 -1822 E -mail: mbyersAnewnortbeachca.00v
INDEPENDENT CONTRACTOR AGREEMENT Page 5
5.2 All notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at the contact information provided on page 12 of this
Agreement.
6. 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.
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7.1 General Liability Insurance. (Required for senior fitness programs
only) 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.
7.1.1 Contractor shall have the option of purchasing coverage through
the City of Newport Beach's Special Event insurance program, or through Southern
California Municipal Athletic Federation ( "SCMAF "), 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).
7.1.2 Contractor's insurance coverage shall be primary insurance and/or
primary source of recovery as respects to City, its elected or appointed officers, agents,
officials, employees and volunteers as respects to all claims, losses or liability arising
directly or indirectly from the Contractor's operations or Service provided to the City.
Any insurance or self- insurance maintained by City, its officers, officials, employees and
volunteers shall be excess of the Contractor's insurance and shall not contribute with it.
INDEPENDENT CONTRACTOR AGREEMENT Page 6
7.1.3 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:
3300 Newport Boulevard, PO Box 1768, Newport Beach, CA 92658.
7.2 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.
7.2.1 The insurer issuing the Workers' Compensation insurance shall
amend its policy by endorsement to waive all rights of subrogation against the City, its
elected or appointed officers, agents, officials, employees and volunteers. Contractor
shall submit to City, along with the required certificate of insurance a copy of such
waiver of subrogation endorsement.
7.2.2 In the event Contractor has no employees requiring Contractor to
provide Workers' Compensation insurance, Contractor shall so certify to City in writing
prior to City s execution of this Agreement.
7.3 Automobile Liability Covera4e. 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,
or as approved by the City's Risk Manager or his/her designee
7.4 Please initial the statement that applies: / IWAI
❑ Contractor is providing a copy of the General Liability Insurance with
Additional Insured Endorsement that meets the above requirements.
❑ Contractor shall be utilizing the City provided insurance through
Southern California Municipal Athletic Federation ( "SCMAF ") and will
pay all required fees billed on a quarterly basis by the City. I have
reviewed the Contract Contractor Handbook for complete
information. Please note that SCMAF does not provide coverage for
Worker's Compensation or Automobile Insurance Liability.
8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
8.1 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
INDEPENDENT CONTRACTOR AGREEMENT Page 7
contractor or assisting with any Class. Such Contractors and their employees, agents
and representatives are required to submit fees in the amount of up 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.
8.2 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 Section.
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 Section 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.
11.13USINESS 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
INDEPENDENT CONTRACTOR AGREEMENT Page 8
City Hail. A copy of your Business License must be submitted with this Contract.
All Contractors must have a valid business license.
12.1 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.
12.2 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 thins party, it is the
responsibility of Contractor to obtain the appropriate license to perform the material prior
to the public performance.
11TERMINATION
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.
14. 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.).
15.STANDARD PROVISIONS
15.1 Compliance with all Laws. Contractor shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
ontities, including federal, state, county or municipal, whether now in force or hereinafter
INDEPENDENT CONTRACTOR AGREEMENT Page 9
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
15.2 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.
15.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
15.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
15.5 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 the Agreement or any other rule of
construction which might otherwise apply.
15.6 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.
15.7 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.
15.8 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
15.9 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys fees.
15.10 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
INDEPENDENT CONTRACTOR AGREEMENT Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Dater
By: L/' �--
K . Rowan
Acting Assistant City Attorney
ATTEST:
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: -w ' '>-4b
By: J
ura Detweiler, irector
ecreation & Senior Services
Date: -611-30-11
OF NEIy,
By: u`
$�a
Lellani Brown, Cit Clerk 9)
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CONTRACTOR: JUNE BRIGGS 'C'�nRNU a�
,�i,Gu� /li r�r� ;7-( A01/ J ti,�e.. gr;; v� Contractor
gnature ate Print N� Print Title
Signature Date Print Name Print Title
Attachments: Exhibit A—Representatives and/or Employees of Contractor
INDEPENDENT CONTRACTOR AGREEMENT Pagett
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CITY OF NEWPORT BEACH
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which this Agreement is
entered into, I shall not employ any person in any manner so as to become
subject to the Workers' Compensation Laws of the State of California.
Executed on this /6 day of J -0,1e 'A, 2011, at Newport Beach, California.
(Signature)
(Consultant's name and title)
24 Hour Claims 1.800.282.1446
See the reverse side for more information.
Ray Briggs
June Briggs
This policy meets the requirements of California Vehicle Code Section
16056.
AMCO Insurance Company
1100 Locust St Dept 1100
Des Moines, IA 50391-1100
NAIC Company Number: 19100
California Insurance
Identification Card
Pali" Number
Effective Date Expiration Date
May 12 2011 Nov 12 2011
Year
Make/Modal
Vehicle ldontiirweinw Number (VIM)
1995
Honda/Accord Ex
24 Hour Claims 1.800.282.1446
See the reverse side for more information.
Ray Briggs
June Briggs
This policy meets the requirements of California Vehicle Code Section
16056.
AMCO Insurance Company
1100 Locust St Dept 1100
Des Moines, IA 50391-1100
NAIC Company Number: 19100
_S OAS i 5 b ni- rac,.l
CITY OF NEWPORT BEACH
Recreation & Senior Services Department
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 June Briggs, a IVINEW, ( "Contractor")
to provide the classes or programs in Geography ( "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:
1. 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 Instructor within twenty one (21) business days after the last Class
meeting. City shall pay the Instructor an amount equal to seventy percent (70 %) 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 Class held.
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 classes and shall co ect all
enrollment fees. Contractor shall not accept enrollment fees directly rom a
participant unless the City approves, in advance and in writing, the acceptance of
enrollment fees by the Contractor. Contractors shall only collect material fees
that are pre - approved by the City and published in advance in the Newport
Navigator and /or the OASIS News (if applicable). Such material fees shall be
collected by Contractor at the first class meeting.
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 for the Classes; 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 the class before the second class meeting;
it. The participant drops a one (1) day or more workshop five (5) business
days before the workshop begins; or
iii. 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:// newportbeachca .govTindex.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
Independent Contractor Agreement Page 2
for training, supervising, evaluating, scheduling, and any other requirements by
law for all contractors, representatives, and employees
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:
LI will not be using representatives or employees.
1 will be using representatives or employees. Attached please find as
Exhibit A, and incorporated herein byxeference 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. Supplies/Equipment. Contractor shall be responsible for providing all supplies,
equipment, personnel, materials, and any additional publicity desired for the
class, at Contractor's We expense. Contractor shall also be responsible for
repairing and maintaining all equipment and supplies in good working condition.
D. 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.
E. Class Size. Contractor shall determine the minimum and maximum number of
participants required for each class to ensure the quality and, safety of the class.
Contractor or Contractor's authorized representative is required to attend the first
Class meeting of all Class offerings advertised in the Newport Navigator and/or
OASIS News unless Contractor cancels the Class three (3) business days prior
to the start date, with the prior written approval of City. In the event of such
Independent Contractor Agreement Page 3
approved cancellation, Contractor 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 shall be cancelled and the Contractor shall not
be compensated for attending the first meeting or for any cancelled Class.
Contractor 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 shall 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 between City and Contractor. If class(es) are
cancelled for two (2) consecutive quarters due to lack of enrollment, the Gass will
not be scheduled again until City determines that public demand has increased.
F. Use of Non -City Facillties for Classes. If Contractor desires to conduct the Class
at his/her place of business, or some other non City -owned site or facility,
Contractor 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.
G. 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.
H. 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.
I. Contractor Informational Meeting. Contractor or Contractor's authorized
representative or employee shall attend the Annual Contractor Informational
Meeting that will be held in Insert Month & Year le. October 2011.
J. Camp Participant Emergency Waiver Form Requirements. All Contractors who
offer camps shall require all participants to complete and return to Contractor, or
Independent Contractor Agreement Page 4
his /her designee on or before the first day of camp a City issued "Emergency
Contact Information Form ".
K. Sign -Out Sheets. All Camp Contractors with participants ages 10 years and
younger, must have a legal guardian sign out each Class participant after each
Class. Sign out sheets along with Attendance sheets are available to the
Contractor online via httnJ/ newnortbeachca .govrindex.asax?aage =1432.
L. Other Requirements. Contractors shall:
I. Cooperate fully with all reasonable requests from City staff.
U. 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.
A. 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. Close and secure the room or building at the end of each Class.
ix. Turn off any lights, heat, air conditioning, or other utilities when Class is
finished.
x. Schedule make -up Classes in advance.
A. Complete and return the quarterly "Contract Class Schedule" requested by
the City if Contractor wishes to be a part of the marketing materials.
xii. Know facility rules and regulations and provide pertinent information (i.e.
refunds) to participants.
Aii. Pay a $20 lost key /replacement fee when Contractor requests replacement
key.
xiv. Abide by all City policies and procedures including, but not limited to, the
requirements set forth in the Newport Navigator and OASIS News and the
Contractor Handbook which is attached hereto and incorporated by this
reference.
M. 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.
Independent Contractor Agreement Page 6
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.
6. INSURANCE- SENIOR FITNESS AND DANCE CLASSES ONLY
A. General LkL tity 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 cant' 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.
Independent Contractor Agreement Page 6
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 occurrences or 00 -Peru. --d be ur -R- ^-
Please initial the statement that applies: N\ iq
Contractor is providing a copy of the General Liability Insurance with
Additional Insured Endorsement that meets the above requirements.
Contractor shall be utilizing the City provided insurance through
Southern California Municipal Athletic _Federation ( "SCMAF ") and will
pay all required fees billed on a quarterly basis by the City. I have
reviewed the Contract Contractor Handbook for complete
information. Please note that SCMAF does not provide coverage for
Worker's Compensation or Automobile Insurance Liability.
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.
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 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.
Independent Contractor Agreement Page 7
9. TRANSPORTING OF MINOR PARTICIPANTS
Unless the Program specifically involves travel or transportation of minors to an offsite
location, Contractor, or Contractor'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,
Contractor 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, Contractor 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
Division at 949 - 795 -2381 (Monday through Friday, 5 to 9pm, and Saturday and Sunday,
9am to 5pm.) During all other hours, Contractor shall contact the Watch Commander at
the Newport Beach Police Department for assistance at 949 - 644 -3730.
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 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 infonnation, 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.
11. 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.
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. 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
Independent Contractor Agreement Page 8
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.
13. 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.
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
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.
15. CONTROLLING LAW AND VENUE
The laws of the State of California shall govem 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 Page 9
16. 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.
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.
21. 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 GovemmentTort Claims Act (Government Code sections 900 et seq.).
Independent Contractor Agreement Page 10
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 J
My a uchamp A aura Detw ' r, Director
Assistant i Attorney 4� Recreation B Senior Services
qq
ATTEST:,,, I/J� pF NE1y,^
By: CSX L�// �
m
Leilani Brown, CoClerk P in
CONTRACTOR: onNa
By. g to � � ��� //o Print Name and Title: Sun e K, t3 rz i eGs
gnature ' Dae t N s rr�a rnP�P�cscnror
By: Print Name and Title:
Signature Date
Attachments: Exhibit A: Represenatives and/or Employees of Contractor
�t"t °f Aµ-Lo'wiabde ivsurcwcc N�-Kr pagr
Independent Contractor Agreement Page 11
CITY OF NEWPORT BEACH
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which this Agreement is
entered into, I shall not employ any person in any manner so as to become
subject to the Workers' Compensation Laws of the State of California.
Executed on this day of 5'6-c07-, J. 2010, at Newport Beach, California.
(Signature)
r--cstn.rcc-
. `ch -e R(6(PS 10:9 uet'0
(Consultant's name and title)
LiCalifornia Insurance I
Identification Card 4
Policy Number Effective Date Expiration Date
May 12 2010 Nov 12 2010
Year Make/Model Vehicle Identification Number (VIN)
1995 Honda/Accord Ex
24 Hour Claims 1.800.282.1446
See the reverse side for more information.
Ray Briggs
June Briggs
This policy meets the requirements of California Vehicle Code Section
16056.
AMCO Insurance Company
1100 Locust St Dept 1100
Des Moines, IA 50391-1100
NAIC Company Number: 19100