HomeMy WebLinkAboutC-5155 - Independent Contractor Agreement Recreation InstructorCITY OF NEWPORT BEACH
Recreation & Senior Services Department
INDEPENDENT CONTRACTOR AGREEMENT
RECREATION INSTRUCTOR
This Independent Contractor Agreement ( "Agreement') is made and entered into as
of May 15, 2012 by and between the City of Newport Beach, a California Municipal
I Corporation and Charter City ( "City "), and JOEL THOMPSON, a sole proprietor doing
business as CATALYST FITNESS ( "Contractor ") to provide the classes or programs in
FITNESS ( "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 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 for each Class held.
2.2 The City pays Contractors electronically; the Contractor shall be responsible
for ensuring an up to date "Direct Deposit Authorization Form" is on file with the City.
2.3 When working at Mariners Elementary and Newport Elementary ( "Schools ")
Contractor will forward "actual' costs in writing to conduct programs at Schools; once City
has agreed to these costs in writing City will add overhead costs of thirty -two percent
(32 %) to the program and at the end of each session City will pay Contractor one hundred
percent (100 %) of the "actual' costs as submitted in writing and agreed to by the City.
3. DUTIES OF CITY
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 (if
applicable). 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)
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
http : / /newportbeachca.gov /index.aspx ?page =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 above and in
the course outline submitted to City. 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, 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).
JOEL THOMPSON DBA CATALYST FITNESS Page 2
4.3 Please initial the statement that applies:
❑ I will not be using representatives or employees.
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.
4.3.1 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.
4.4 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.
4.5 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.
4.6 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 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.
JOEL THOMPSON DBA CATALYST FITNESS Page 3
4.7 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:
4.7.1 Notify City at least twenty -four (24) hours in advance;
4.7.2 Provide sufficient parking for all participants;
4.7.3 Post signs at the site to direct participants to the location of class; and
4.7.4 Allow access to City staff to the location when requested.
4.8 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.
4.8.1 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.
4.8.2 When cancelling a Class, Contractor shall contact all participants as
soon as possible.
4.9 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.
4.10 Contractor Informational Meeting. Contractor or Contractor's authorized
representative or employee shall attend the Annual Contractor Informational Meeting that
will be held in fall 2012.
4.11 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 ".
4.12 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
through their instructor login.
4.13 Other Requirements. Contractors shall:
4.13.1 Cooperate fully with all reasonable requests from City staff.
4.13.2 Maintain the highest degree of participant safety possible.
JOEL THOMPSON DBA CATALYST FITNESS Page 4
4.13.3 Immediately report to the Recreation & Senior Services Office any
injuries as a result of Class participation.
4.13.4 Injuries or Damages. Immediately report to the Recreation and Senior
Services Office any injuries as a result of Class participation, damages to the classroom or
Program facility that could cause potential injury to a Class participant, and /or other
needed maintenance repairs. Contact the Recreation and Senior Services Office staff by
phone or email.
4.13.5 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.
4.13.6 Ensure that any music or sound system is kept at levels that will not
interfere with other classes or create a public disturbance /nuisance.
4.13.7 Close and secure the room or building at the end of each Class.
4.13.8 Turn off any lights, heat, air conditioning, or other utilities when Class
is finished
4.13.9 Complete and return the quarterly "Contract Class Schedule"
requested by the City if Contractor wishes to be a part of the marketing materials.
4.13.10Know facility rules and regulations and provide pertinent information
(i.e. refunds) to participants.
4.13.11 Pay a $20 lost key /replacement fee when Contractor requests
replacement key.
4.13.12Abide 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 acknowledgement of receipt of the Contractor Handbook.
4.14 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. 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
JOEL THOMPSON DBA CATALYST FITNESS Page 5
hereinafter provided. All notices, demands, requests or approvals from Contractor to City
shall be addressed to City at:
Attn: Raquel Valdez
Recreation & Senior Services Department
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3156
E -mail: recreation @newportbeachca.gov
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.
7. INSURANCE
7.1 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.
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).
JOEL THOMPSON DBA CATALYST FITNESS Page 6
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.
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: P.O.
Box 1768/ 3300 Newport Boulevard, 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 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, or as approved
by the City's Risk Manager or his /her designee.
77 4 lease 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,
JOEL THOMPSON DBA CATALYST FITNESS Page 7
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
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 and 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. TRANSPORTING OF (MINOR PARTICIPANTS
9.1 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.
9.2 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 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.
JOEL THOMPSON DBA CATALYST FITNESS Page 8
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.
12.13USINESS 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 City Hall. A copy
of your Business License must be submitted with this Contract. All Contractors must
have a valid business license.
13. INDEMNIFICATION
13.1 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.
13.2 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 third party, it is the responsibility of Contractor to obtain the
appropriate license to perform the material prior to the public performance.
JOEL THOMPSON DBA CATALYST FITNESS Page 9
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.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.).
16. STANDARD PROVISIONS
16.1 Compliance with all Laws. Contractor shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
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 City.
16.2 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.
16.3 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.
16.4 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.
16.5 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.
16.6 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.
JOEL THOMPSON DBA CATALYST FITNESS Page 10
16.7 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.
16.8 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.
16.9 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 attorney's fee's.
16.10 Counterparts. This Agreement may be , executed iri ,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.
JOEL THOMPSON DBA CATALYST FITNESS Page 11
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
Date:P-
By:
Aa'r6nt.Harp
City Attorney
ATTEST: N
E'O o
Date:
i� /�
oeonn
ilani Brown, City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 6'
By:fRea
etweiler, D l(ector
ion & SeicF Services Department
CONTRACTOR: JOEL THOMPSON DBA CATALYST FITNESS
�� s� l % hofs CL
nature ate Print Name Print Title
Attachments: Exhibit A—Representatives and/or Employees of Contractor
JOEL THOMPSON DBA CATALYST FITNESS Page 12