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HomeMy WebLinkAboutC-4793 - Independent Contractor Agreement Recreation InstructorCITY OF NEWPORT BEACH C _q -7q 3 Recreation & Senior Services Department INDEPENDENT CONTRACTOR AGREEMENT This Independent Contractor Agreement ( "Agreement') is made and entered into as of January 1, 2011 by and between the City of Newport Beach, a California Municipal Corporation and Charter City ( "City "), and Win Win Promotions, a California limited liability company, ( "Contractor") to provide league programs for Volleyball ( "Program ") hereby agreed upon, as scheduled and described in the Newport Navigator 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 31St 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 seventy percent (70 %) of the amount of the total league fees collected, minus the non - resident fee. 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 teams for programs and shall collect all enrollment fees. Contractor shall not accept program fees directly from a team. B. Publicity. City shall provide publicity for the Class in the Newport Navigator (published on a quarterly basis). City shall have the sole discretion to decide what information will be included in the Newport Navigator. 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. Program Facility. City shall provide a location for the Program without charging Contractor any rental fees, unless otherwise agreed by the parties. The Contractor will request dates and times for the Programs; 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 Programs for them. D. Refund Processing. City shall provide refunds to Teams when: i. The team drops the league before the second week of play; ii. The Program is canceled by the City or Contractor. In this instance, the Contractor must provide the City with all required paperwork. E. Team Roster. City is responsible for providing the roster of teams to the Contractor. 4. CONTRACTOR DUTIES A. Contractors. Contractor hereby certifies that he /she or any contractor, representatives, or employee who will be administering the Program or assisting in teaching the Program is qualified to do so, and qualified to perform the services described above and in the outline submitted to City. Contractor is responsible for all Program 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 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). WIN WIN PROMOTIONS, LLC Page 2 Please initial the statement that applies: 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. 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. Program Size. Contractor shall determine the minimum and maximum number of teams required for each program to ensure quality and safety. Contractor shall be responsible for informing all registered teams, in the event of a cancellation or forfeit F. Use of Non -City Facilities for Programs. If Contractor desires to conduct the Program 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 program; and iv. Allow access to City staff to the location when requested. WIN WIN PROMOTIONS, LLC Page 3 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. 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. 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 Program participation. iv. Immediately report to the Recreation & Senior Services Office any damage to the gymnasium that could cause potential injury to a program participant, or other needed maintenance repairs. V. Clear all participants from the designated program area at the end of program 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. vi. Close and secure the room or building at the end of each Program. vii. Turn off any lights, heat, air conditioning, or other utilities when Program is finished. viii. Schedule make -up Programs in advance. ix. Know facility rules and regulations and provide pertinent information (i.e. refunds) to participants. X. Pay a $20 lost key /replacement fee when Contractor requests replacement key. A. Abide by all City policies and procedures including, but not limited to, the requirements set forth in the Newport Navigator and the Contractor Handbook which is attached hereto and incorporated by this reference. 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. WIN WIN PROMOTIONS, LLC Page 4 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 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. WIN WIN PROMOTIONS, LLC Page 5 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: 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. 9. CONFIDENTIALITY; OWNERSHIP OF DOCUMENTS All Program 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 team rosters, participant addresses and contact information, shall be used by the Contractor solely for administration of Programs and performing City business. Contractor will take reasonable steps WIN WIN PROMOTIONS, LLC Page consistent with the law to prevent distribution of such information. Contractors 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 Program site or participants, in any publicity pertaining to Contractor's services 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. 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 WIN WIN PROMOTIONS, LLC Page 7 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 Programs that were actually administered by Contractor, if any, up to the effective date of termination. 14. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 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. WIN WIN PROMOTIONS, LLC Page 8 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 of seq.). WIN WIN PROMOTIONS, LLC 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 and Complete Exhibit A as appropriate. 3. Copy of valid City of Newport Beach Business License; and 4. Initial the appropriate statement on Page 7 and enclosed Evidence of Insurance (refer to Section 6 of the Contract). General Liability Insurance Certificate with Additional Insured Endorsement if not using SCMAF Insurance Plan; Workers Compensation Coverage; Automobile Insurance Coverage 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 satDtto • `..ttorney ATTEST: By: Leilani Brown, CONTRACTOR: WIN WN By: 21 yoli Signoure Date CITY OF NEWPORT BEACH, A Municipal Corporation Senior Services Print Name and Title: «Te�,.r„Zs oN,. By: Print Name and Title: Signature Date Attachments: Exhibit A: Represenatives and/or Employees of Contractor WIN WIN PROMOTIONS, LLC Page 10