HomeMy WebLinkAboutC-4791 - Independent Contractor Agreement Recreation InstructorINDEPENDENT CONTRACTOR AGREEMENT
RECREATION INSTRUCTOR
This Independent Contractor Agreement ( "Agreement') is made and entered into
(\ as of this 1st day of October, 2012 ( "Effective Date ") by and between the City of
Newport Beach, a California Municipal Corporation and Charter City ( "City'), and Robert
Keller, a sole proprietor ( "Contractor') to provide personal fitness training sessions
\ ( "Session" or "Program ") hereby agreed upon, as scheduled and described in the
�1 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 Effective Date, and shall
terminate on December 31, 2013 unless terminated earlier as provided herein.
2. COMPENSATION
2.1 City shall pay Contractor within twenty one (21) business days after the
last Personal Training Session. City shall pay the Contractor an amount equal to
seventy percent (70 %) of the amount of the total enrollment fees collected, minus the
non - resident fee and a five dollar and no /100 ($5.00) per person administration fee for
each Class held.
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.
3. DUTIES OF CITY
3.1 Registration. City shall register all participants for personal fitness training
sessions 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.
3.2 Publicity. City shall provide publicity for the Program 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 Program 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 Program without
charging Contractor any rental fees, unless otherwise agreed by the parties. The
Contractor will request dates and times for the Sessions and 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 Contractor's Sessions for them.
3.4 Refund Processing. City shall provide refunds to participants when:
ROBERT KELLER Page 1
3.4.1 The participant drops five (5) business days before the program
begins; or
3.4.2 The Program is canceled by the City or Contractor. In the latter
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 log -in and password information from the City.
4. CONTRACTOR DUTIES
4.1 Contractors. Contractor hereby certifies that he /she 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 furnish the necessary
personnel to provide the Program or Classes as contemplated by this Agreement.
4.2 Representatives. Contractor shall provide the 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 the City a completed Form for each
Representative 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:
[f I will not be using Representatives or employees.
❑ I will be using Representatives. Any completed and approved Form
shall be incorporated herein by reference. Contractor 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.
ROBERT KELLER Page 2
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 the City. Subcontracts, if any, shall contain a provision
making them subject to all provisions of this Agreement.
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, 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, 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 Absences. Contractor shall obtain permission from City one (1) week prior
to any planned absence from the program. In the event of illness, Contractor is required
to notify City and Participants twelve (12) hours prior to any Session cancellation.
4.6.1 City urges Contractor to get a substitute Representative whenever
possible instead of cancelling 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 the City.
4.6.2 When cancelling a Session, Contractor shall contact all participants
as soon as possible.
4.7 Contact Information. Contractor is required to notify City in writing of any
name, address, telephone number, email, website or direct deposit payment changes
within forty eight (48) hours of such change.
4.8 Other Requirements. Contractors shall:
4.8.1 Cooperate fully with all reasonable requests from City staff;
4.8.2 Maintain the highest degree of participant safety possible;
4.8.3 Immediately report to the Recreation & Senior Services Office any
injuries as a result of Program participation;
4.8.4 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;
4.8.5 Know facility rules and regulations and provide pertinent
information (i.e. refunds) to participants;
ROBERT KELLER Page 3
4.8.6 Abide by all City policies and procedures including, but not limited
to, the requirements set forth in the Newport Navigator and OASIS News.
4.9 Contractor Photo ID Badge. Contractors and their 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 $5.00 for any lost or
replacement Contractor Photo ID Badge. Contractor Photo ID Badges are distributed
upon renewal of their 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
personally, or on the third business day after the deposit thereof in the United States
mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices,
demands, requests or approvals from Contractor to City shall be addressed to City at:
Attn: Vicki Chin, Social Services Supervisor
Recreation and Senior Services Department
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, CA 92658
Phone: 949 718 -1821
E -mail: vchin @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 13 of this
Agreement.
6. INDEPENDENT CONTRACTOR
The parties intend and agree that at all times during the performance of services
under this Agreement that 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 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 1090 or other
applicable IRS forms at the end of the calendar year for all fees paid to Contractor.
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7.1 General Liability Insurance. 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
ROBERT KELLER Page 4
Beach, its elected or appointed officers, employees, agents and volunteers as additional
named insured in the amount of one million dollars ($1,000,000) per occurrence.
Evidence of insurance certificate shall be sent to the Recreation & Senior Services
Department and must be approved by the City Risk Management or their designee prior
to the first Class /day of instruction.
7.1.1 Contractor shall have the option of purchasing coverage through
the City of Newport Beach's Special Event insurance program, or through Southern
California Municipal Athletic Federation ( "SCMAF ") or providing his /her own coverage.
If a Contractor elects to obtain his /her own coverage, said coverage must have the
policy limits described above and be provided by an insurance carrier with a Best's
Insurance Guide Rating of A- (or higher) and Financial Size Category Class of VII (or
larger).
7.1.2 Contractor's insurance coverage shall be primary insurance and /or
primary source of recovery as respects to City, its elected or appointed officers, agents,
officials, employees and volunteers with respect to all claims, losses or liability arising
directly or indirectly from the Contractors 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.
ROBERT KELLER Page 5
7.4 Please initial the statement that applies:
Lr Contractor is providing a copy of the General Liability Insurance with
Additional Insured Endorsement that meets the above requirements.
❑ Contractor shall be utilizing the City provided insurance through
Southern California Municipal Athletic Federation ( "SCMAF ") and will
pay all required fees billed on a quarterly basis by the City. I have
reviewed the Contract Contractor Handbook for complete
information. Please note that SCMAF does not provide coverage for
Worker's Compensation or Automobile Insurance Liability.
8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
8.1 All Contractors and their 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 Representatives are required to
submit fees in the amount of up $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.
9. CONFIDENTIALITY; OWNERSHIP OF DOCUMENTS
All Class rosters, participant addresses and contact information, and any other
such information or documents compiled by City and provided to Contractor, shall
remain the property of City. Contractor shall not release such information to others
without the prior written authorization by City. Contractor shall not use such information
for any other purpose than those authorized by City. All Class rosters, Class participant
addresses and contact information, shall be used by the Contractor solely for
administration of Classes and performing City business. Contractor will take reasonable
steps consistent with the law to prevent distribution of such information. Contractor's
obligations under this Section shall survive the termination of this Agreement.
10. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND
PUBLICITY
Contractor shall not include City's name, logos or insignia, or photographs of the
Program 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.
ROBERT KELLER Page 6
11. BUSINESS LICENSE
Newport Beach Municipal Code Chapter 5.04 provides that every business
operating in the City must obtain a business license prior to conducting business in the
City, and pay the required business license fee. This ordinance applies to businesses
operating at commercial or residential locations within the City, or using a City of
Newport Beach address or P.O. Box for receiving mail. The City Business License Fee
is an annual tax, due every twelve (12) months. Contractor agrees to obtain a City
business license as required by Chapter 5.04 and provide proof of compliance annually.
Business License Applications are available in the Revenue Division Office in Newport
Beach City Hall. In certain circumstances, Contractor may be eligible for paying a
reduced Business License Tax, which is known as an Apportioned Business Tax. A
Declaration for Apportioned Business Tax is available in the Revenue Division Office at
City Hall. A copy of your Business License must be submitted with this Contract.
All Contractors must have a valid business license.
12. INDEMNIFICATION
12.1 General. Contractor shall indemnify, defend and hold harmless City, its
elected and appointed officers, employees, agents, representatives, the City Council,
boards and commissions ( "Indemnified Parties ") with respect to any loss, liability, injury
or damage that arises out of, or is in any way related to, the acts or omissions of
Contractor, his or her employees, representatives, officers and agents in the course of
performing services under this Agreement; however, Contractor shall not be required to
indemnify City from any claim arising from the sole negligence or willful misconduct of
the Indemnified Parties.
12.2 Intellectual Property. Contractor shall defend, indemnify, and hold
harmless the Indemnified Parties from any claim of infringement or other proceedings
brought against City for any intentional or unintentional violation by Contractor of the
legally protected rights of any third parties, with respect to works performed, logos
displayed, or written or digital materials provided by Contractor and used during the
performance of this Agreement. Such legally protected rights of third parties include but
are not limited to trade secrets, moral rights, proprietary acts, U.S. patents, trademarks,
service marks and copyrights vested or issued as of the effective date of this
Agreement. If Contractor will be providing a public performance of musical
compositions or arrangements that are subject to a license held by a third party, it is the
responsibility of Contractor to obtain the appropriate license to perform the material prior
to the public performance.
13. TERMINATION
City has the right, at its sole discretion and with or without cause, to terminate
this Agreement at any time by giving three (3) calendar days prior written notice to
Contractor. In the event of termination under this Section, City shall pay Contractor on
a prorated basis for any Sessions or Programs that were actually taught by Contractor,
if any, up to the effective date of termination.
ROBERT KELLER Page 7
14. 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. The Contractor and the City expressly agree that in addition to all claims filing
requirements set forth in the Agreement, the Contractor shall be required to file any
claim the Contractor may have against the City in strict conformance with the
Government Claims Act (Govt. Code §§ 900 et seq.).
15. STANDARD PROVISIONS
15.1 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted.
15.2 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.
15.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and Agreements of whatsoever kind or nature are merged
herein. No verbal Contract or implied covenant shall be held to vary the provisions
herein.
15.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Exhibits attached hereto, the terms of
this Agreement shall govern.
15.5 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.
15.6 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.
15.7 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.
15.8 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.
ROBERT KELLER Page 8
15.9 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.
15.10 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 fees.
15.11 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]
ROBERT KELLER Page 9
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO Y'S OFFICE
Date: / a
Aar C. Harp
City Attorney
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 10• L•t2
By:
L u Detweile
R c ation and nior Services Director
ATTEST:
Date:
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BY: x
Leilani I. Brown�'',.:�:
City Clerk _yOFO�,rr
CONTRACTOR: ROBERT KELLER
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Signature
Date
Print Name
Print Title
Print Name
Print Title
Signature
Date
[END OF SIGNATURES]
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ROBERT KELLER Page 10
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CITY OF NEWPORT BEACH
Recreation & Senior Services Department
INDEPENDENT CONTRACTOR AGREEMENT
FOR PERSONAL TRAINER
This Independent Contractor Agreement ( "Agreement ") is made and entered into
as of April 1, 2011 by and between the City of Newport Beach, a California Municipal
Corporation and Charter City ("City'), and Robert Keller, a We proprietor, ("Contractor")
to provide personal fitness training sessions ( "Sessions" or "Program ") hereby agreed
upon, as scheduled and described in the Newport Navigator and /or OASIS News, which
is incorporated herein by this reference, and as approved in writing by the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 30 day of September 2012 unless terminated earlier as provided
herein.
2. COMPENSATION
City shall pay Contractor on a monthly basis, provided that Contractor has had
registered clients during that month. City shall pay the Contractor seventy percent
(70%) of the amount of the total enrollment fees collected by City, less the non - resident
fee and a five dollar ($5.00) per person administration fee for each registered session.
City may renegotiate compensation with Contractor anytime during the term of this
Agreement, should Contractor fail to perform any of the terms contemplated herein.
The City pays Contractors electronically; the Contractor shall complete and return with
the contract documents the "Direct Deposit Authorization Form."
4unn bil"l_ *391koji 11
A. Registration. City shall register all participants for personal fitness training
sessions 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.
B. Publicity. City shall provide publicity for the Program 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 Program 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 prior to distribution.
C. Class Facility. City shall provide a location for the Program without charging
Contractor any rental fees, unless otherwise agreed by the parties. The
Contractor will request dates and times for the Sessions, 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' Sessions for them.
D. Refund Processing. City shall provide refunds to participants when:
• The participant drops five (5) business days before the Program begins; or
• The Program is canceled by the City or Contractor. In this instance, the
Contractor must provide the City with all required paperwork.
E. Class Roster, Sign -Out and Attendance Sheets. City shall provide class
rosters, sign -out sheets and attendance sheets to Contractor online via
http:// newr)ortbeachca .aov /index.aspx?pacie =1432 . Contractor is responsible
for requesting a log -in and password from the City.
4. CONTRACTOR DUTIES
A. Contractors. Contractor hereby certifies that he/she or any contractor,
representatives, or employee who will be teaching the Class or assisting in
teaching the Class is qualified to do so, and qualified to perform the services
described above and in the course outline submitted to City. Contractor is
responsible for all class curriculum development.
City staff must approve in writing all assigned representatives and employees
prior to any of them performing any services under this Agreement. The City
requires the Contractor 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
representatives and employees must be provided prior to City approval of the
Contractor's representatives and employees. Contractor and Contractor's
representatives and employees must be able to provide proof of legal right to
worts in the United States. Contractor is responsible for training, supervising,
evaluating, scheduling, and any other requirements by law for all
representatives, and employees.
B. Representatives/Employees. Contractor shall provide the City with the
Name(s), Address(es) and Phone Number(s) of all representatives or
employees who will be providing any services pursuant to this Agreement. All
representatives or employees must comply with the fingerprint policy (Section
8).
Please initial the statement that applies:
ROBERT KELLER Page 2
I will not be using representatives or employees.
❑ I will be using representatives or employees. Attached please find as
Exhibit A, and incorporated herein by reference the full names, addresses
and phone numbers of all representatives or employees who will be
providing any services pursuant to this Agreement.
Contractor shall not subcontract or assign any portion of the rights, obligations or
duties required under this Agreement, without first obtaining prior written
approval from the City. Subcontracts, if any, shall contain a provision making
them subject to all provisions of this Agreement.
C. 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.
D. Absences. Contractor shall obtain permission from City one (1) week prior to
any planned absence from the Program. In the event of illness, Contractor is
required to notify City and Participants twelve (12) hours prior to any Session
cancellation.
City urges Contractor to get a substitute, whenever possible, instead of
cancelling Sessions. Contractor shall obtain City's prior written approval of
any substitute Contractor. Any substitute contractor, representative or
employee must have completed a criminal background check pursuant to
Paragraph 8 prior to teaching any City programs or sessions.
When cancelling a Session, Contractor shall contact all participants as soon
as possible.
E. 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.
F. Other Requirements. Contractors shall:
ROBERT KELLER Page 3
i. Cooperate fully with all reasonable requests from City staff.
ii. Maintain the highest degree of participant safety possible.
iii. Immediately report to the Recreation & Senior Services Office any
injuries as a result of Program participation.
iv. Immediately report to the Recreation & Senior Services Office any
damage to the classroom or Program facility that could cause potential
injury to a Class participant, or other needed maintenance repairs.
v. Contact participants, if/When a Session is cancelled and confirm all
cancellations and /or make -up sessions, in writing, with City staff.
vi. Schedule make -up sessions in advance.
vii. Know facility rules and regulations and provide pertinent information
(i.e. refunds) to participants.
viii. Abide by all City policies and procedures including, but not limited to,
the requirements set forth in the Newport Navigator and OASIS News.
G. Contractor Photo ID Badge. Contractors and their employees and /or
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 or replacement
Contractor Photo ID Badges. Contractor Photo ID Badges are distributed
upon renewal of Agreements with City.
5. INDEPENDENT CONTRACTOR
The parties intend and agree that at all times during the performance of services under
this Agreement; Contractor shall act as an Independent Contractor and shall not be
considered an agent or employee of City. As such, Contractor shall have the sole legal
responsibility to remit all federal and state income and social security taxes and to
provide for his /her own workers compensation and unemployment insurance and that of
his/her employees or representative. Contractor also agrees to provide liability
insurance as required by City and described more fully below. City shall not be liable
for any payment or compensation in any form to Contractor other than as provided
herein. City reserves the right to employ other independent contractors and Contractors
who teach the same or similar classes. City shall provide Contractor with IRS 1090 or
other applicable IRS forms at the end of the calendar year for all fees paid to
Contractor.
6. INSURANCE
a. General Liability Insurance. Contractor must provide and maintain at all times
general liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury, and property
damage. The policy shall carry a general liability special endorsement
naming the City of Newport Beach, its elected or appointed officers,
employees, agents and volunteers as additional named insured in the amount
of one million dollars ($1,000,000) per occurrence. Evidence of insurance
ROBERT KELLER Page 4
certificate shall be sent to the Recreation & Senior Services Department and
must be approved by the City Risk Management or their designee prior to the
first Class /day of instruction. Contractor shall have the option of purchasing
coverage through the City of Newport Beach's Special Event insurance
program, or providing his/her own coverage. If a Contractor elects to obtain
his/her own coverage, said coverage must have the policy limits described
above and be provided by an insurance carrier with a Bests Insurance Guide
Rating of A- (or higher) and Financial Size Category Class of VII (or larger).
Said policy must also provide a written thirty (30) day notice of cancellation
(ten (10) day written notice for non - payment of premium) to the City of
Newport Beach Recreation & Senior Services Department, at the following
address: P.O. Box 1768/ 3300 Newport Boulevard, Newport Beach, CA
92658.
b. Workers' Compensation Insurance. By executing this Agreement, Contractor
certifies that Contractor is aware of and will comply with Section 3700 of the
Labor Code of the State of California requiring every employer to be insured
against liability for workers' compensation or to undertake self- insurance
before commencing any work. Contractor shall carry the insurance or provide
for self - insurance required by Califomia law to protect said Contractor from
claims under the Workers' Compensation Act.
c. Automobile Liability Coverage. Contractor shall maintain automobile
insurance covering bodily injury and property damage for all activities of the
Contractor arising out of or in connection with work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit for each occurrence, or as otherwise approved by the
City's Risk Manager or his/her designee.
7. COMPLIANCE WITH ALL LAWS
Contractor, and his/her employees, agents and representatives shall at all times
observe and comply with all laws, ordinances and regulations.
8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK
All Contractors and their employees, agents and representatives must submit to and
pass a criminal background investigation by providing a complete set of fingerprints to
the City at least thirty (30) calendar days prior to teaching, substituting for contractor or
assisting with any Class. Such Contractors and their employees, agents and
representatives are required to submit fees in the amount of up to seventy three dollars
and no/100 ($73) per person to the City of Newport Beach, Recreation & Senior
Services Department, to cover all costs associated with fingerprinting through the City of
Newport Beach Police Department and the Department of Justice. Fingerprints may be
required to be updated every five (5) years.
ROBERT KELLER Page 5
In addition, all Programs involving minors age seventeen (17) or younger must be
taught in an open atmosphere where parents and guardians are able to observe
session instruction, if so desired. At no time can the parent or guardian of a minor be
denied access to a Session. By signing this Agreement, Contractor agrees to the
provisions of this Paragraph.
9. CONFIDENTIALITY; OWNERSHIP OF DOCUMENTS
All Class rosters, participant addresses and contact information, and any other such
information or documents compiled by City and provided to Contractor, shall remain the
property of City. Contractor shall not release such information to others without the
prior written authorization by City. Contractor shall not use such information for any
other purpose than those authorized by City. All Class rosters, Class participant
addresses and contact information, shall be used by the Contractor solely for
administration of Classes and performing City business. Contractor will take reasonable
steps consistent with the law to prevent distribution of such information. Contractor's
obligations under this paragraph shall survive the termination of this Agreement.
10. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND
PUBLICITY
Contractor shall not include City's name, logos or insignia, or photographs of the Class
site or participants, in any publicity pertaining to Contractor's services or Class in any
magazine, trade paper, newspaper, radio or television production, Internet, or other
printed or electronic medium without the prior written consent of City and participants.
11. BUSINESS LICENSE
Newport Beach Municipal Code Chapter 5.04 provides that every business operating in
the City must obtain a business license prior to conducting business in the City, and pay
the required business license fee. This ordinance applies to businesses operating at
commercial or residential locations within the City, or using a City of Newport Beach
address or P.O. Box for receiving mail. The City Business License Fee is an annual
tax, due every twelve (12) months. Contractor agrees to obtain a City business license
as required by Chapter 5.04 and provide proof of compliance annually. Business
License Applications are available in the Revenue Division Office in Newport Beach City
Hall. In certain circumstances, Contractor may be eligible for paying a reduced
Business License Tax, which is known as an Apportioned Business Tax. A Declaration
for Apportioned Business Tax is available in the Revenue Division Office at City Hall. A
copy of your Business License must be submitted with this Contract All
Contractors must have a valid business license.
12. INDEMNIFICATION
ROBERT KEL.LER Page 6
General. Contractor shall indemnify, defend and hold harmless City, its elected and
appointed officers, employees, agents, representatives, the City Council, boards and
commissions ( "Indemnified Parties ") with respect to any loss, liability, injury or damage
that arises out of, or is in any way related to, the acts or omissions of Contractor, his or
her employees, representatives, officers and agents in the course of performing
services under this Agreement; however, Contractor shall not be required to indemnify
City from any claim arising from the sole negligence or willful misconduct of the
Indemnified Parties.
Intellectual Property. Contractor shall defend, indemnify, and hold harmless the
Indemnified Parties from any claim of infringement or other proceedings brought against
City for any intentional or unintentional violation by Contractor of the legally protected
rights of any third parties, with respect to works performed, logos displayed, or written or
digital materials provided by Contractor and used during the performance of this
Agreement. Such legally protected rights of third parties include but are not limited to
trade secrets, moral rights, proprietary acts, U.S. patents, trademarks, service marks
and copyrights vested or issued as of the effective date of this Agreement. If Contractor
will be providing a public performance of musical compositions or arrangements that are
subject to a license held by a third party, it is the responsibility of Contractor to obtain
the appropriate license to perform the material prior to the public performance.
13. TERMINATION
City has the right, at its sole discretion and with or without cause, to terminate this
Agreement at any time by giving three (3) calendar days prior written notice to
Contractor. In the event of termination under this Section, City shall pay Contractor on
a prorated basis for any Classes or Programs that were actually taught by Contractor, if
any, up to the effective date of termination.
14. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating
to it. Any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
15. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by
both Contractor and City and approved as to form by the City Attorney.
16. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of this Agreement or any other rule of construction which might otherwise
apply.
ROBERT KELLER Page 7
17. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties, and all preliminary negotiations and agreements are
merged herein. No verbal agreement or implied covenant shall be held to vary the
provisions herein.
18. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
19. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein, whether of the same or a different
character.
20. CLAIMS
The Contractor and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Contractor shall be
required to file any claim the Contractor may have against the City in strict conformance
with the Government Tort Claims Act (Government Code sections 900 of seq.).
ROBERT KELLER Page 8
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: b
By:
Myluchamp
Assistant ci Attorney `
ATTEST:
Dater i H. 11 kiMC12kn�_ By: Leilani Bro n ,
CONTRACTOR: ROBERT KELLER
By: 3 2e n
Signature Date
By:
Sionature Data
CITY OF NEWPORT BEACH,
A California Municipal Corporation
Date: 4 • t $ • t I
By: 4.�
Laura De iler, Director
Recreation Senior Services
p�p
Print Name and Title: ?-b--
Print Name and Tittle:
Attachments: Exhibit A: Representatives and /or Employees of Contractor
ROBERT KELLER Page