HomeMy WebLinkAboutC-5784 - Independent Contractor Agreement, Recreation InstructorINDEPENDENT CONTRACTOR AGREEMENT
CU RECREATION INSTRUCTOR
This Independent Contractor Agreement ("Agreement') is made and entered into
v as of this 1st day of January, 2015 ("Effective Date') by and between the City of
Newport Beach, a California municipal corporation and charter city ("City'), and Darryl
Clark, a sole proprietor doing business as ("DBA") Hangtime Sports ("Contractor"), to
provide the classes or programs in City Adult Basketball Program ("Class" or `Program")
hereby agreed upon, as scheduled and described in the Newport Navigator and/or
OASIS News, which is incorporated herein by reference, and as approved in writing by
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 Effective Date, and shall
terminate on December 31, 2016, unless terminated earlier as provided herein.
2. COMPENSATION
2.1 City shall pay Contractor within twenty-one (21) City business days after
the last Class meeting.
2.2 City shall pay Contractor an amount equal to:
2.2.1 Sixty Five percent (65%) of the amount of the total enrollment
fees collected, minus the non-resident fee and a five dollar ($5.00) per person
administration fee for each Class.
2.3 City shall pay Contractor electronically. Contractor shall be responsible
for ensuring an up to date "Direct Deposit Authorization Form" is on file with City.
3. DUTIES OF CITY
3.1 Registration. City shall register all participants and shall collect all
enrollment fees. Contractor shall not accept enrollment fees directly from a participant
unless City approves, in advance and in writing, the acceptance of enrollment fees by
Contractor. Contractors shall only collect material fees that are pre -approved by 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
Contractor. Publicity may also include flyers created by City or Contractor. Contractor -
created marketing materials must be approved in writing by 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. Contractor will
request dates and times for the Classes and City will inform Contractor if the facility is
available. It is Contractor's sole responsibility to request these dates/times; City will not
schedule Contractor's Classes without receiving date/time requests from Contractor.
City facilities shall only be used for Classes authorized by the City under this
Agreement.
3.4 Refund Processing. Refunds are at the discretion of the City. 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 Class that is a one (1) day or more
workshop at least five (5) City business days before the workshop begins; or
3.4.3 The Class is canceled by City or Contractor. If canceled by
Contractor, all required paperwork must be received by City at least seventy-two (72)
hours before start date of Class.
3.5 Class Roster, Sign -Out and Attendance Sheets. City shall provide Class
rosters, sign -out sheets and attendance sheets to Contractor online via City's
registration system. Contractor is responsible for requesting log -in and password
information from City for use of the registration system.
4. CONTRACTOR DUTIES
4.1 Contractors. Contractor hereby certifies that it, or any subcontractor,
representative or employee (collectively "Representative" or "Representatives") who will
be teaching the Class or assisting in teaching the Class are qualified to do so, and
qualified to perform the services described above and in the Program outline submitted
to City. Contractor is responsible for all Class curriculum development. Contractor is
responsible for training, supervising, evaluating, scheduling, and any other requirements
by law for all Representatives. Contractor warrants that it will continuously furnish the
necessary personnel to provide the Program or Classes as contemplated by this
Agreement.
4.2 Representatives. Contractor shall provide City with the name(s),
address(es) and phone number(s) of all Representatives who will be providing any
services pursuant to this Agreement. All Representatives must comply with the
Fingerprint and Criminal Background Check policy in Section 9. All Representatives
must be able to provide proof of legal right to work in the United States.
4.2.1 Representative Approval Form. Attached as Exhibit B, and
incorporated herein by reference, is the Representative Approval Form ("Form"). Each
Representative is required to obtain the written approval of the Recreation & Senior
Services Director prior to performing any services under this Agreement. Prior to
Contractor using any Representative to provide any services pursuant to this
Agreement, Contractor shall submit to City a completed Form for each Representative
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that Contractor desires to use to provide services pursuant to this Agreement.
Contractor, at the sole discretion of City, shall remove from the Program any
Representative assigned to the performance of services pursuant to this Agreement
upon written request of City.
4.2.2 Please initial the statement that applies:
I will not be using Representatives.
I will be using Representatives. Any completed and approved Forms
shall be incorporated herein by reference. I shall not authorize any
Representative to provide services pursuant to this Agreement
unless and until the Recreation & Senior Services Director has
approved in writing the completed Form for that individual
Representative.
4.3 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 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 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, sexual orientation or any other impermissible basis under the law, be
excluded from participation in, or be denied the benefits of the services provided
pursuant to this Agreement except as otherwise permitted by law. 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 participants. Contractor or 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 at least three (3) City business days prior to the
first Class 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 canceled and Contractor shall not be compensated for attending the
first meeting or for any canceled Class. Contractor shall not be obligated to provide any
additional services in regards to the canceled 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 15 of this
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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
canceled 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.
4.7 Use of Non -City Facilities for Classes. If Contractor desires to conduct the
Class at its place of business, or some other non City -owned site or facility, such
location shall be first approved in writing by the City, which approval may be granted or
conditioned by City in its sole and absolute discretion. Upon said written consent by
City, Contractor must:
Class; and
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
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 at least twelve (12) hours prior to any Class cancellation.
4.8.1 City urges Contractor to get a substitute Representative
whenever possible instead of canceling Classes. Contractor shall obtain City's prior
written approval of any substitute Representative. Any substitute Representative must
have completed fingerprinting and a criminal background check pursuant to Section 9
prior to teaching any Programs or Classes and must have an authorized Representative
Approval Form on file with City.
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 forty-eight (48) hours of such change.
4.10 Contractor Informational Meeting. Contractor or Contractor's authorized
Representative or employee shall attend an annual "Contractor Informational Meeting."
4.11 Camp Participant Emergency Waiver Form Requirements. All Contractors
who offer camps shall require all participants to complete and return to Contractor, or its
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 ten (10)
years and younger shall have a parent or legal guardian sign out each said Class
participant after each Class. Sign -out sheets along with attendance sheets are
available to Contractor online through the instructor login. All camp Contractors with
participants age seventeen (17) years and younger shall retain written permission from
a parent or legal guardian to allow said participants to transport themselves home from
the Class site.
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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;
4.13.3 Injuries or Damages. Immediately report to City's Project
Administrator named in Section 5 below, by phone or email, 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;
4.13.4 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;
4.13.5 Ensure that any music or sound system is kept at levels that will
not interfere with other classes or create a public disturbance/nuisance;
4.13.6 Close and secure the room or building at the end of each Class;
4.13.7 Turn off any lights, heat, air conditioning, or other utilities the end
of each Class;
4.13.8 Complete and return via email, by the date set forth by City's
Project Administrator, the quarterly "Contract Class Schedule" if Contractor wishes to be
a part of City's marketing materials;
4.13.9 Know facility rules and regulations and provide pertinent
information (e.g., refund policy) to participants;
4.13.10 Pay a twenty dollar ($20.00) lost key/replacement fee when
Contractor requests replacement key; and
4.13.11 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
current Contractor Handbook which is incorporated herein by reference. Contractor's
signature on this Agreement signifies acknowledgement of receipt of the Contractor
Handbook.
4.14 Contractor Photo ID Badge. Contractor and Representatives are required
to wear a City -provided Contractor Photo ID Badge at all times while engaging in
services for City. Contractor shall be required to pay five dollars ($5.00) for any lost or
replacement Contractor Photo ID Badge. Contractor Photo ID Badges are distributed
upon execution or renewal of the Agreement with City.
5. PROJECT ADMINISTRATOR
This Agreement will be administered by the Recreation & Senior Services
Department. Recreation Supervisor, or designee, shall be the Project Administrator and
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shall have the authority to act for City under this Agreement. The Project Administrator
shall represent City in all matters pertaining to the Services to be rendered pursuant to
this Agreement.
6. NOTICES
Unless otherwise indicated, all notices, demands, requests or approvals,
including change of address notices, 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.
6.1 All notices, demands, requests or approvals from Contractor to City shall
be addressed to City at:
Attn.: Recreation Supervisor
Recreation & Senior Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
6.2 All notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at the contact information provided on the signature page to
this Agreement.
7. INDEPENDENT CONTRACTOR
The parties intend and agree that at all times during the performance of services
under this Agreement, Contractor and Representatives 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 its own workers compensation and
unemployment insurance and that of its Representatives. Contractor also agrees to
provide liability insurance as required by City and described more fully below and in
Exhibit C. 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 Form 1099-MISC or other applicable IRS forms at the
end of the calendar year for all fees paid to Contractor.
8. INSURANCE REQUIREMENTS
Without limiting Contractor's indemnification of City, and prior to commencement
of Classes, Contractor shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference. This
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provision shall not apply to Contractors providing non -fitness related classes at
the OASIS Senior Center.
9. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
9.1 Contractor and its Representatives must submit to and pass a criminal
background investigation by providing a complete set of fingerprints to City at least thirty
(30) calendar days prior to teaching, substituting for Contractor, or assisting with any
Class. Contractor and its Representatives are required to submit fees at City's cost
pursuant to the administrative fee schedule (NBMC §3.36.030) 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.
9.2 In addition, all Classes involving participants age seventeen (17) years or
younger ("minors") must be taught in an open atmosphere where parents and guardians
are able to observe Class instruction, if so desired. At no time may the parent or
guardian of a minor be denied access to a Class.
10. TRANSPORTING OF MINOR PARTICIPANTS
10.1 Unless the Program specifically involves travel or transportation of minors
to an offsite location, Contractor or its Representatives, shall not transport any minor
participant by vehicle or otherwise.
10.2 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'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, 8 a.m. to 5 p.m.), or the Park Patrol
Division at (949) 795-2381 (Monday through Friday, 5 p.m. to 9 p.m. and Saturday and
Sunday, 9 a.m. to 5 p.m.). During all other hours, Contractor shall contact the Newport
Beach Police Department Dispatch number for assistance at (949) 644-3717.
11. 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 that authorized by City. All Class rosters, Class participant
addresses and contact information shall be used by Contractor solely for administration
of Classes and performing City business. Contractor shall 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.
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12. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND
PUBLICITY
Contractor shall not include City's name, seal, 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.
13. BUSINESS LICENSE
Newport Beach Municipal Code Chapter 5.04 provides that every business
operating in City must obtain a business license prior to conducting business in City and
pay the required business license tax. The City business license tax is an annual fee
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 at Newport Beach City Hall. In
certain circumstances, Contractor may be eligible to pay 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 the
business license must be submitted with this Agreement.
14. INDEMNIFICATION
14.1 General. Contractor shall indemnify, defend and hold harmless City, its
elected and appointed officers, employees, agents, volunteers, 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, its 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.
14.2 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.
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15. 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.
16. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under the Agreement, Contractor shall submit to City in
writing, all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for
payment. Contractor and City expressly agree that in addition to all claims filing
requirements set forth in the Agreement, Contractor shall be required to file any claim
Contractor may have against City in strict conformance with the Government Claims Act
(California Govt. Code §§ 900 et seq.).
17. STANDARD PROVISIONS
17.1 _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.
17.2 Waiver. A waiver by City of any term, covenant, or condition in the
Agreement shall not be deemed to be a waiver of any subsequent breach of the same
or any other term, covenant or condition.
17.3 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 contract or implied covenant shall be held to vary the provisions
herein.
17.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Exhibits attached hereto, the terms of
this Agreement shall govern.
17.5 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.
17.6 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
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this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
17.7 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
17.8 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.
17.9 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.
17.10 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
17.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: IVI 10114
By: (Irr\
Aaron C. Harp V
City Attorney
ATTEST:
Date:
By: Mkti-� 4 syW}
Letani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: t ko - i �
ey:
a ra Detwel
reation $ Senior Services Director
CONTRACTOR: Darryl Clark, a sole proprietor doing business as ("DBA")
Hangtime Sports
V2-
6 RrWI Clark Owrn-
Signature D to Print Na a Print Title
Signature Date Print Name Print Title
Attachments: Exhibit A—
Exhibit B -
Exhibit C -
- Scope of Services
- Representative Approval Form
- Insurance Information
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EXHIBIT A
SCOPE OF SERVICES
1. CURRENT LEAGUE STRUCTURE - Four seasons per year:
A. SEASONS —Specific season commencement dates will be provided by the
City at the end of the year.
• Winter (begins on or about January of each year)
• Spring (begins on or about April of each year)
• Summer (begins on or about July of each year)
• Fall (begins on or about September of each)
B. Season will consist of 6 -10 -games — not including playoff games
C. Games are played Monday through Thursday (no weekends).
D. Game times: (game times are determined based on the availability of the
gymnasium)
• 6 -team leagues — 6:30pm, 7:30pm, 8:15pm
• 8 -team leagues — 6:15pm, 7:15pm, 8pm, 9pm
E. Gymnasiums
• West Newport Community Center
• Ensign Junior High School
• Lincoln Athletic Center
• Newport Coast Community Center
F. Tournaments — Adult basketball tournaments may be developed as an
extension of the Recreation & Senior Services Department's Adult Basketball
Program.
• Contractor will assign officials for weekend tournament games.
2. CONTRACTOR RESPONSIBILITIES/PROVISIONS
The selected Contractor shall be expected to promote, organize and operate the
City of Newport Beach Recreation and Senior Services Department's Adult
Basketball Program, to include the following:
A. Officials / Scorekeepers
• Contractor shall assign and provide payment to all assigned officials
and scorekeepers.
• Contractor will assign officials and scorekeepers that are adequately
trained and knowledgeable regarding the rules and play of basketball.
Contractor shall provide the City with an annual evaluation report of all
assigned officials and scorekeepers, including the evaluation process
Darryl Clark A-1
as well as certification and training procedures. Two (2) officials and
one (1) scorekeeper shall be assigned per game.
• Contractor will only assign officials that are able to traverse the entire
area of a basketball court as necessitated by typical game play.
• Contractor shall only assign official that can competently officiate
games in accordance with City rules and regulations; the National
Federation of State High School Association basketball rules and any
and all other policies or procedures governing adult basketball leagues
and tournaments.
• Contractor shall only referee one (1) set of games per week and rotate
officiating assignments through all divisions throughout the season.
• Contractor agrees that the City's AED will be on the courts during
league and tournament play and scorekeepers will be trained and
certified in its use at the City's expense during trainings provided bi-
annually.
• Contractor shall ensure that all assigned officials are aware of, and will
comply with, any extra officiating obligations, including but not limited
to:
— Filing misconduct reports in written form with the Recreation
Sports Supervisor or his or her designee immediately following
the incident for such incidents as fighting and ejections.
— Filing accident reports in written form with the Recreation Sports
Supervisor or his or her designee immediately following the
incident for game related injuries or accidents.
— Fully cooperate and communicate with the Recreation Sports
Supervisor or his or her designee for matters pertaining to the
Adult Basketball program and City.
• Contractor shall ensure that officials and scorekeepers arrive at
designated playing site at least ten (10) minutes prior to the scheduled
game start time.
• Contractor shall ensure that officials and scorekeepers dry mop the
gymnasium floor and inspect the playing site before the scheduled
game start time.
• Contractor shall notify the Recreation Sports Supervisor or his or her
designee of any problems or changes in Contractor's assignment of
officials no later than twenty-four (24) hours prior to each scheduled
game. When this notice is not possible, Contractor agrees to notify the
City's Recreation Sports Supervisor or his or her designee
immediately.
Darryl Clark A-2
B. Meetings
• Contractor shall cooperate fully with the Adult Basketball program,
including meeting with the Recreation Sports Supervisor or his
designees when requested, making assignment changes when in the
interests of the program, and maintaining an open and regular dialogue
with the City and the Recreation Sports Supervisor or his or her
designee regarding program matters.
• Contractor shall send representatives to attend any and all League
Manager meetings.
C. Promotional Materials
Contractor shall assist in the promotion of program and provide additional
marketing materials and services i.e. game statistics for the Recreation &
Senior Services Department's Adult Basketball program with the goal of
maximizing league registration.
D. Scoring
Contractor shall update the scores or forfeits through the City designated
website no later than twenty-four (24) hours after each scheduled game.
E. Customer Service
Contractor shall provide service to all teams, including telephone customer
service to handle questions and disputes involving all aspects of league
play.
F. Keys
Contractor shall be provided keys and is expected to lock up the following
facilities: West Newport Community Center, Lincoln School Gym, and
Ensign School Gym.
G. Awards & Equipment
• Contractor shall, at its own expense, provide awards to all league or
tournament champions in all divisions, including one (1) team and
separate individual awards to all players on the winning champion
team; team and championship awards subject to approval by
Recreation Sports Supervisor or his or her designee.
Contractor shall, at its own expense, provide and maintain quality and
functional equipment for all basketball related game play, including but
not limited to basketballs, referee uniforms and equipment materials,
and scorecards; basketball related equipment subject to approval by
the City and the Recreation Sports Supervisor or his or her designee.
Darryl Clark A-3
3. CITY RESPONSIBILITIES/PROVISIONS
Use of Gymnasium
• City shall provide Contractor with gymnasium allocation for all leagues,
including reserving School District facilities, if needed.
• City shall provide the maintenance of all gymnasiums.
• City shall provide first aid supplies at all gymnasiums, including
Automated External Defibrillator (AED) units.
• City shall provide bi-annual AED training for all scorekeepers that are
not currently certified.
4. COMPENSATION SCHEDULE
• City shall process payment to the Contractor at the end of the fifth (5th
week after season registration officially opens.
• City shall process a final clean-up payment to the Contractor at the end
of the eighth (8th) week after registration officially opens.
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EXHIBIT B
REPRESENTATIVE /APPROVAL FORM
PLEASE PRINT LEGIBLY
CONTRACTOR NAME:
REPRESENTATIVE: NAME:
ADDRESS:
CITY, STATE ZIP:
DATE OF BIRTH: PHONE#
EMAIL:
SIGNATURE OF REPRESENTATIVE: DATE
--------------------------------------------------
CITY USE ONLY
CONTRACT #:
FINGERPRINTS: YES O NO
BACKGROUND: O YES O NO
CLEARED
CLEARED TO O YES O NO
WORK
PHOTO TAKEN: O YES O NO
CONTRACTOR O YES O NO
NOTIFIED BY EMAIL
Darryl Clark B-1
EXHIBIT C
INSURANCE REQUIREMENTS
A. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
B. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City Risk Manager.
C. Coverage Requirements.
1. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
(a) Contractor shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
(b) 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.
2. General Liability Insurance. Contractor shall maintain commercial general
liability insurance, with coverage at least as broad as provided by
Insurance Services Office form CG 00 01, in an amount not less than one
million dollars ($1,000,000) per occurrence. The policy shall cover liability
arising from premises, operations, personal and advertising injury, and
liability assumed under an insured contract (including the tort liability of
another assumed in a business contract) with no endorsement or
modification limiting the scope of coverage for liability assumed under a
contract.
(a) Contractor shall have the option of purchasing liability coverage
through the City of Newport Beach's Special Event insurance
program, or through Southern California Municipal Athletic
Darryl Clark C-1
Federation ("SCMAF") or providing its own coverage. If Contractor
elects to obtain its own coverage, said coverage must be as
outlined in this Exhibit.
(b) Please initial the statement that applies:
Contractor shall provide a copy of the General
Liability Insurance with Additional Insured
Endorsement that meets the requirements contained
herein.
Contractor shall utilize City -provided insurance
through Southern California Municipal Athletic
Federation ("SCMAF") and will pay all required fees
billed on a quarterly basis by City. I have reviewed
the Contractor Handbook for complete information.
Please note that SCMAF does not provide coverage for
Worker's Compensation or Automobile Insurance
Liability.
3. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of 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 each accident.
D. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
1. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subcontractors.
2. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, but not including
professional liability, shall provide or be endorsed to provide that City and
its officers, officials, employees, agents, and volunteers shall be included
as insureds under such policies.
3. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
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4. Notice of Cancellation. All policies shall provide City with thirty (30) days
notice of cancellation (except for nonpayment for which ten (10) days
notice is required) or nonrenewal of coverage for each required coverage.
5. Subcontractors. Contractor shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and
Contractor shall ensure that City is an additional insured on insurance
required from subcontractors. For CGL coverage subcontractors shall
provide coverage with a format at least as broad as CG 20 38 04 13.
E. Additional Agreements Between the Parties. The parties hereby agree to the
following:
1. Evidence of Insurance. Contractor shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by the City Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
2. City's Right to Revise Requirements. The City reserves the right at any
time during the term of the contract to change the amounts and types of
insurance required by giving Contractor sixty (60) days advance written
notice of such change. If such change results in substantial additional
cost to Contractor, City and Contractor may renegotiate Contractor's
compensation.
3. Enforcement of Contract Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
4. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
contractor maintains higher limits than the minimums shown above, City
requires and shall be entitled to coverage for higher limits maintained by
Contractor. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to City.
5. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
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retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
6. City Remedies for Non Compliance. If Contractor or any subcontractor
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this agreement, or to suspend Contractor's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Contractor or
reimbursed by Contractor upon demand.
7. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Agreement, and that involve or may
involve coverage under any of the required liability policies.
8. Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
Darryl Clark C-4
T
p� INDEPENDENT CONTRACTOR AGREEMENT
I-- RECREATION INSTRUCTOR
U-1 This Independent Contractor Agreement ("Agreement") is made and entered into
C� as of this 25th day of February, 2014 ("Effective Date") by and between the City of
Newport Beach, a California municipal corporation and charter city ("City"), and
DARRYL CLARK, a sole proprietor doing business as ("DBA") HANGTIME SPORTS
("Contractor") to provide the classes or programs in administering and operation of the
City Adult Basketball program ("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 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 Effective Date, and shall
terminate on December 31, 2014, 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 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 ($5.00) per person administration fee for each Class held.
2.2 City shall pay Contractor electronically. Contractor shall be responsible
for ensuring an up to date "Direct Deposit Authorization Form" is on file with City.
2.3 (If applicable) Contractors providing Classes or Programs at Mariners
Elementary School and/or Newport Elementary School ("Schools") shall submit to City
written notice of actual costs incurred to conduct the Class or Program at the Schools.
Subject to City's written acceptance of Contractor's actual costs, City shall, within
twenty-one (21) business days after the last Class or Program meeting, reimburse
Contractor one hundred percent (100%) of the actual costs incurred.
3. DUTIES OF CITY
3.1 Registration. City shall register all participants and shall collect all
enrollment fees. Contractor shall not accept enrollment fees directly from a participant
unless City approves, in advance and in writing, the acceptance of enrollment fees by
Contractor. Contractors shall only collect material fees that are pre -approved by 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
DARRYLCLARK 1
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
Contractor. Publicity may also include flyers created by City or Contractor. Contractor -
created flyers must be approved in writing by 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. Contractor will
request dates and times for the Classes and City will inform Contractor if the facility is
available. It is Contractor's sole responsibility to request these dates/times; City will not
schedule Contractor's Classes for it.
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 at least
five (5) business days before the workshop begins; or
3.4.3 The Class is canceled by City or Contractor. In the latter
instance, Contractor must provide 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 log -in and password information from City.
4. CONTRACTOR DUTIES
4.1 Contractors. Contractor hereby certifies that it, or any subcontractor,
representative or employee (collectively "Representatives") who will be teaching the
Class or assisting in teaching the Class are qualified to do so, and qualified to perform
the services described above and in the Program outline submitted to City. Contractor
is responsible for all Class curriculum development. Contractor is responsible for
training, supervising, evaluating, scheduling, and any other requirements by law for all
Representatives. Contractor warrants that it will continuously fumish the necessary
personnel to provide the Program or Classes as contemplated by this Agreement.
4.2 Representatives. Contractor shall provide City with the name(s),
address(es) and phone number(s) of all Representatives who will be providing any
services pursuant to this Agreement. All Representatives of Contractor must comply
with the Fingerprint Policy (see Section 8). All Representatives must be able to provide
proof of legal right to work in the United States.
4.2.1 Representative Approval Form. Attached as Exhibit A, and
incorporated herein by reference, is the Representative Approval Form ("Form"). Each
Contractor Representative is required to obtain the written approval of the Recreation
and Senior Services Director prior to performing any services under this Agreement.
Prior to Contractor using any Representative to provide any services pursuant to this
Agreement, Contractor shall submit to City a completed Form for each Representative
DARRYL CLARK 2
that Contractor desires to use to provide services pursuant to this Agreement.
Contractor, at the sole discretion of City, shall remove from the Program any
Representative assigned to the performance of services pursuant to this Agreement
upon written request of City.
4.3 Please initial the statement that applies:
"z; I will not be using Representatives or employees.
I will be using Representatives. Any completed and approved Form
shall be incorporated herein by reference. I shall not authorize any
Representative to provide services pursuant to this Agreement
unless and until the Recreation and Senior Services Director has
approved in writing the completed Form for that individual
Representative.
4.4 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 City. Subcontracts, if any, shall contain a provision making
them subject to all provisions of this Agreement.
4.5 Supplies/Equipment. Contractor shall be responsible for providing all
supplies, equipment, personnel, materials, and any additional publicity desired for the
class, at Contractors sole expense. Contractor shall also be responsible for repairing
and maintaining all equipment and supplies in good working condition.
4.6 Anti -Discrimination Laws. Contractor agrees and certifies that 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, sexual orientation or any other impermissible basis under the law, be
excluded from participation in, or be denied the benefits of the services provided
pursuant to this Agreement except as otherwise permitted by law. Contractor shall,
where applicable, conform to the requirements of the Americans with Disabilities Act in
the performance of this Agreement.
4.7 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 participants. 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 canceled and Contractor shall not be compensated for attending the
first meeting or for any canceled Class. Contractor shall not be obligated to provide any
additional services in regards to the canceled 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
DARRYLCLARK 3
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
canceled 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.
4.8 Use of Non -City Facilities for Classes. If Contractor desires to conduct the
Class at its place of business, or some other non City -owned site or facility, Contractor
must:
4.8.1 Notify City at least twenty-four (24) hours in advance;
4.8.2 Provide sufficient parking for all participants;
4.8.3 Post signs at the site to direct participants to the location of class;
4.8.4 Allow access to City staff to the location when requested.
4.9 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 at least twelve (12) hours prior to any Class cancellation.
4.9.1 City urges Contractor to get a substitute Representative when-
ever possible instead of canceling Classes. Contractor shall obtain City's prior written
approval of any substitute Representative. Any substitute Representative must have
completed a criminal background check pursuant to Section 8 prior to teaching any City
Programs or Classes and must have an authorized Representative Approval Form on
file with City.
4.10 Contact Information. Contractor is required to notify City in writing of any
name, address, telephone number, email, website or direct deposit payment changes
within forty-eight (48) hours of such change.
4.11 Contractor Informational Meeting. Contractor or Contractor's authorized
Representative or employee shall attend the Annual "Contractor Informational Meeting"
that is held in the Fall.
4.12 Camp Participant Emergency Waiver Form Requirements. All Contractors
who offer camps shall require all participants to complete and return to Contractor, or its
designee, on or before the first day of camp, a City issued "Emergency Contact
Information Form."
4.13 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 Contractor online
through the instructor login.
4.14 Other Requirements. Contractors shall:
DARRYLCLARK 4
4.14.1 Cooperate fully with all reasonable requests from City staff;
4.14.2 Maintain the highest degree of participant safety possible;
4.14.3 Iniuries or Damages. Immediately report to the Recreation and
Senior Services Project Administrator named in Section 5, by phone or e-mail, 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;
4.14.4 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;
4.14.5 Ensure that any music or sound system is kept at levels that will
not interfere with other classes or create a public disturbance/nuisance;
4.14.6 Close and secure the room or building at the end of each Class;
4.14.7 Turn off any lights, heat, air conditioning, or other utilities when
Class is finished;
4.14.8 Complete and return the quarterly "Contract Class Schedule"
requested by City if Contractor wishes to be a part of the marketing materials;
4.14.9 Know facility rules and regulations and provide pertinent
information (e.g., refunds) to participants;
4.14.10 Pay a $20 lost key/replacement fee when Contractor requests
replacement key; and
4.14.11 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
current Contractor Handbook which is incorporated herein by this reference.
Contractor's signature on this Agreement signifies acknowledgement of receipt of the
Contractor Handbook.
4.15 Contractor Photo ID Badge. Contractor and its Representatives are
required to wear a City -provided Contractor Photo ID Badge at all times while engaging
in services for City. Contractor shall be required to pay $5.00 for any lost or
replacement Contractor Photo ID Badge. Contractor Photo ID Badges are distributed
upon execution or renewal of the Agreement with City.
5. NOTICES
5.1 Unless otherwise indicated, all notices, demands, requests or approvals,
including change of address notices, to be given under the terms of this Agreement
shall be given in writing, and conclusively shall be deemed served when delivered
DARRYLCLARK 5
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.
5.2 All notices, demands, requests or approvals from Contractor to City shall
be addressed to City at:
Attn.: JUSTIN SCHMILLEN
Recreation and Senior Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
5.3 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 its own workers compensation and unemployment insurance and that of its
Representatives. 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 1099 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 Manager or 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 its own coverage. If a
Contractor elects to obtain its 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).
DARRYL CLARK 6
7.1.2 Contractor's insurance coverage shall be primary insurance
and/or primary source of recovery with respect to City, its elected or appointed officers,
agents, officials, employees and volunteers with respect to all claims, losses or liability
arising directly or indirectly from Contractor's operations or Service provided to City.
Any insurance or self-insurance maintained by City, its officers, officials, employees and
volunteers shall be excess of 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, or 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, 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 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 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 City's Risk Manager or his/her designee.
7.4 Please initial the statement that applies:
11 Contractor shall provide a copy of the General Liability Insurance
with Additional Insured Endorsement that meets the above
requirements.
Contractor shall utilize City -provided insurance through Southern
California Municipal Athletic Federation ("SCMAF") and will pay all
required fees billed on a quarterly basis by City. I have reviewed the
Contractor Handbook for complete information. Please note that
SCMAF does not provide coverage for Worker's Compensation or
Automobile Insurance Liability.
DARRYLCLARK 7
8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
8.1 Contractor and its Representatives must submit to and pass a criminal
background investigation by providing a complete set of fingerprints to City at least thirty
(30) calendar days prior to teaching, substituting for Contractor, or assisting with any
Class. Contractor and its Representatives are required to submit fees in the amount of
up to $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 may the parent or guardian of a
minor be denied access to a Class.
9. TRANSPORTING OF MINOR PARTICIPANTS
9.1 Unless the Program specifically involves travel or transportation of minors
to an offsite location, Contractor, or its 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'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, 8 a.m. to 5 p.m.), or the Park Patrol
Division at (949) 795-2381 (Monday through Friday, 5 p.m. to 9 p.m. and Saturday and
Sunday, 9 a.m. to 5 p.m.). 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 that authorized by City. All Class rosters, Class participant
addresses and contact information, shall be used by Contractor solely for administration
of Classes and performing City business. Contractor shall 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.
11. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND
PUBLICITY
Contractor shall not include City's name, seal, logos or insignia, or photographs
of the Class site or participants, in any publicity pertaining to Contractor's services or
DARRYLCLARK 8
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 City must obtain a business license prior to conducting business in City,
and pay the required business license tax. The City Business License Tax is an annual
fee 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 to pay 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 the Business License must be submitted with this Agreement.
13. INDEMNIFICATION
13.1 General. Contractor shall indemnify, defend and hold harmless City, its
elected and appointed officers, employees, agents, volunteers, 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, its 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.
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.
DARRYLCLARK 9
15. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under the Agreement, Contractor shall submit to City in
writing, all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for
payment. Contractor and City expressly agree that in addition to all claims filing
requirements set forth in the Agreement, Contractor shall be required to file any claim
Contractor may have against City in strict conformance with the Government Claims Act
(Govt. Code §§ 900 etseq.).
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.
16.2 Waiver. A waiver by City of any term, covenant, or condition in the
Agreement shall not be deemed to be a waiver of any subsequent breach of the same
or any other term, covenant or condition.
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 contract 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 Exhibits attached hereto, the terms of
this Agreement shall govern.
16.5 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.
16.6 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, State of California.
16.7 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
DARRYLCLARK 10
16.8 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.
16.9 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.
16.10 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
16.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
DARRYLCLARK 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 2^UA it
ATTEST: ^uA,
Dater
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:-'& - =6 4=' - rpt
By:
LDetweiler
Rqcrtion & Seni r Services Director
CONTRACTOR: DARRYL CLARK, a sole proprietor doing business as ("DBA")
HANGTIME SPORTS
[END OF SIGNATURES]
Attachments: Exhibit A—Representative Approval Form
DARRYL CLARK 12
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[END OF SIGNATURES]
Attachments: Exhibit A—Representative Approval Form
DARRYL CLARK 12
Attachment B
SCOPE OF SERVICES
i. CURRENT LEAGUE STRUCTURE - Four seasons per year:
A. SEASONS —Specific season commencement dates will be provided by the City at
the end of the year.
• Winter (begins on or about January of each year)
• Spring (begins on or about April of each year)
• Summer (begins on or about July of each year)
• Fall (begins on or about September of each)
B. Season will consist of 6-io-games — not including playoff games
C. Games are played Monday through Thursday (no weekends).
D. Game times: (game times are determined based on the availability of the
gymnasium)
• 6 -team leagues — 6:301m, 7:3opm, 8:15pm
• 8 -team leagues — 6:15pm, 7:15Pm, 8pm, 9Pm
E. Gymnasiums
• West Newport Community Center
• Ensign Junior High School
• Lincoln Athletic Center
• Newport Coast Community Center
F. Tournaments — Adult basketball tournaments may be developed as an extension of
the Recreation & Senior Services Department's Adult Basketball Program.
• Contractor will assign officials for weekend tournament games.
2. CONTRACTOR RESPONSIBILITIES/PROVISIONS
The selected Contractor shall be expected to promote, organize and operate the City
of Newport Beach Recreation and Senior Services Department's Adult Basketball
Program, to include the following:
A. Officials / Scorekeepers
• Contractor shall assign and provide payment to all assigned officials and
scorekeepers.
Contractor will assign officials and scorekeepers that are adequately trained
and knowledgeable regarding the rules and play of basketball. Contractor
shall provide the City with an annual evaluation report of all assigned
officials and scorekeepers, including the evaluation process as well as
certification and training procedures. Two (2) officials and one (1)
scorekeeper shall be assigned per game.
• Contractor will only assign officials that are able to traverse the entire area
of a basketball court as necessitated by typical game play.
• Contractor shall only assign official that can competently officiate games in
accordance with City rules and regulations; the National Federation of State
High School Association basketball rules and any and all other policies or
procedures governing adult basketball leagues and tournaments.
• Contractor shall only referee one (1) set of games per week and rotate
officiating assignments through all divisions throughout the season.
• Contractor agrees that the City's AED will be on the courts during league
and tournament play and scorekeepers will be trained and certified in its use
at the City's expense during trainings provided bi-annually.
• Contractor shall ensure that all assigned officials are aware of, and will
comply with, any extra officiating obligations, including but not limited to:
— Filing misconduct reports in written form with the Recreation Sports
Supervisor or his or her designee immediately following the incident
for such incidents as fighting and ejections.
— Filing accident reports in written form with the Recreation Sports
Supervisor or his or her designee immediately following the incident
for game related injuries or accidents.
— Fully cooperate and communicate with the Recreation Sports
Supervisor or his or her designee for matters pertaining to the Adult
Basketball program and City.
• Contractor shall ensure that officials and scorekeepers arrive at designated
playing site at least ten (1o) minutes prior to the scheduled game start time.
• Contractor shall ensure that officials and scorekeepers dry mop the
gymnasium floor and inspect the playing site before the scheduled game
start time.
• Contractor shall notify the Recreation Sports Supervisor or his or her
designee of any problems or changes in Contractor's assignment of officials
no later than twenty-four (24) hours prior to each scheduled game. When
this notice is not possible, Contractor agrees to notify the City's Recreation
Sports Supervisor or his or her designee immediately.
B. Meetings
Contractor shall cooperate fully with the Adult Basketball program,
including meeting with the Recreation Sports Supervisor or his designees
when requested, making assignment changes when in the interests of the
program, and maintaining an open and regular dialogue with the City and
the Recreation Sports Supervisor or his or her designee regarding program
matters.
Contractor shall send representatives to attend any and all League Manager
meetings.
C. Promotional Materials
Contractor shall assist in the promotion of program and provide additional
marketing materials and services i.e. game statistics for the Recreation & Senior
Services Department's Adult Basketball program with the goal of maximizing
league registration.
D. Scoring
Contractor shall update the scores or forfeits through the City designated
website no later than twenty-four (24) hours after each scheduled game.
E. Customer Service
Contractor shall provide service to all teams, including telephone customer
service to handle questions and disputes involving all aspects of league play.
F. Keys
Contractor shall be provided keys and is expected to lock up the following
facilities: West Newport Community Center, Lincoln School Gym, and Ensign
School Gym.
G. Awards & Equipment
Contractor shall, at its own expense, provide awards to all league or
tournament champions in all divisions, including one (1) team and separate
individual awards to all players on the winning champion team; team and
championship awards subject to approval by Recreation Sports Supervisor
or his or her designee.
Contractor shall, at its own expense, provide and maintain quality and
functional equipment for all basketball related game play, including but not
limited to basketballs, referee uniforms and equipment materials, and
scorecards; basketball related equipment subject to approval by the City and
the Recreation Sports Supervisor or his or her designee.
g. CITY RESPONSIBILITIES/PROVISIONS
Use of Gymnasium
• City shall provide Contractor with gymnasium allocation for all leagues,
including reserving School District facilities, if needed.
• City shall provide the maintenance of all gymnasiums.
• City shall provide first aid supplies at all gymnasiums, including Automated
External Defibrillator (AED) units.
• City shall provide bi-annual AED training for all scorekeepers that are not
currently certified.
4. COMPENSATION SCHEDULE
• City shall process payment to the Contractor at the end of the fifth (5th) week
after season registration officially opens.
City shall process a final clean-up payment to the Contractor at the end of
the eighth (8th) week after registration officially opens.