HomeMy WebLinkAboutC-4737 - Independent Contractor Agreement Recreation Instructor.e
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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 Linda Lewis Elbert, a sole proprietor doing
business as ( "DBA ") Peace in a Pod Culinary Creations, ( "Contractor ") to provide the
classes or programs in Cooking ( "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 3151 day of December 2012 unless terminated earlier as provided herein.
2. COMPENSATION
City shall pay Contractor within twenty one (21) business days after the last Class meeting.
City shall pay the Contractor an amount equal to sixty percent (60 %) 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 participan
enrollment fees. Contractor shall not accel
participant unless the City approves, in advanc
.enrollment fees by the Contractor. Contractors
are pre- approved by the City and published in
and/or the OASIS News (if applicable). Such
Contractor at the first class meeting.
is for classes and shall collect all
it enrollment fees directly from a
e and in writing, the acceptance of
shall only collect material fees that
advance in the Newport Navigator
material fees shall be collected by
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;
ii. 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.gov /index.aspx ?pane =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
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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:
i� I will not be using representatives or employees.
1 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. 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.
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 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
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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 class will not be scheduled again until City determines that
public demand has increased.
Use of Non -City Facilities 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 October 2011.
Camp Participant Emergency Waiver Form Requirements. All Contractors who offer
camps shall require all participants to complete and return to Contractor, or his/her
designee on or before the first day of camp a City issued "Emergency Contact
Information Form ".
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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
hftp://newportbeachca.gov/index.aspx?paqe=1432.
L. Other Requirements. Contractors shall:
i. Cooperate fully with all reasonable requests from City staff.
ii. Maintain the highest degree of participant safety possible.
iii. Immediately report to the Recreation & Senior Services Office any injuries as a
result of Class participation.
iv. Immediately report to the Recreation & Senior Services Office any damage to the
classroom or program facility that could cause potential injury to a Class
participant, or other needed maintenance repairs.
v. Contact participants, if /when a Class is cancelled and confirm all cancellations
and /or make -up classes, in writing, with City staff.
vi. Clear all participants from the designated Class area at the end of Class time
unless participants continue to use public City facilities for personal use without
conflict with other scheduled activities and in accordance with posted hours and
availability limitations.
vii. Ensure that any music or sound system is kept at levels that will not interfere with
other classes or create a public disturbance /nuisance.
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.
xiii. 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.
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
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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
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:
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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.
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
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(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 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.
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 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
PEACE IN A POD CULINARY CREATIONS Page 8
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 govern this Agreement and all matters relating to it.
Any action brought relating to this Agreement shall be adjudicated in a court of competent
jurisdiction in the County of Orange.
16. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both
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
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I
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.
F�i1��11i5E9
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.).
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY 1
By'
Assistant ty ttorney
Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
er, Director
Senior Services
mss,„� ; ,4a V
CONTRACTOR:L/NDA LEWIS ELBERT DBA'pEACE IN AII POD CULINARY CREATIONS
B h r �% L r ¢1 (nllJ Print Name and TiLh&A Leel s
Signature Date
By: Print Name and Title:
Signature Date
Attachments: Exhibit A: Representatives And/Or Employees Of Contractor
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