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HomeMy WebLinkAboutSALSA SWING CONNECTION 1 - 2001 INSUfi.>.NCE C~,! FILE WO:j:~ [',,;W PRC:CEFD (',f ( S (; { ",,--. UNTiL 11:SUciAi.jGE EXPiRES . riA/" N-200 1-0 26 -121-:::11-1.. -v ~ CLt~f{ OF COU;~(jiL ["\TE:J/~/Ol CONSULTANT AGREEMENT TI-IlS AGREEMENT, made and entered into this ~ti. day of !t ~. ,2001 by and between Salsa Swing Connection, a California sole proprietorship (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). !{ECITALS A The City desires to retain a consultant having special skill and knowledge in the field of . salsa aerobic instruction. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance ofthis Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be perfonned in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the ternlS and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perfonn those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A The total sum to be expended under this Agreement, shall not exceed $2,500.00 during the ternl of this Agreement. b. -Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work perfonned, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of perfornlance set forth in the Recitals which may reasonably be expected by City. / I 3. TERIVI This Agreement shall commence on the date first written above and terminate on , h..} ,2001, unless terminated earlier in accordance with Section 12, below. The ternl of this Agreement ~lay be extended upon a writing executed by the Executive Director of Parks, Recreation and Community Service and the City Attorney. -- ---,. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it bc construed to create an employer-employee relationship, ajoint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regltlations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURAl'\CE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as desClibed below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the perfornlance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of$I,OOO,OOO per OCCllrrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in fonn by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than S 1 ,000,000 per OCClUTence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 2 .... -. e. The following requirements apply to the insurance to be provided by Consultant pursllant to this section: (i) Consllltant shall maintain all insurance reqllired above in fllll force and effect for the entire period covered by this Agreement. (ii) Certificates of insmance shall be fumished to the City upon execlltion of this Agrcement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the polines shall not be canceled or redllced in coverage or changed in any other material aspect without thiliy (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to fllmish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith ten11inate this Agreement. Such termination shall not effect Consllltant's right to be paid for its time and materials expended prior to notification oftermination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work perfolmed prior to approval of insurance by the City. 6. Il\"DEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (I) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the tenns of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, jlldicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold hamlless, and pay all costs for the defense of the City, including fees and costs for special counsel to"be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief dlle to personal or property rights arises by reason of the tenns of, or effects alising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consllltant receives from the City infomlation which clue to the nature of sllch information is reasonably understood to be confidential and/or proprietary, Consllltant agrees that it shall not use or disclose sllch information except in the performance of this Agreement, and fllrther agrees to exercise the same degree of care it uses to protect its own infon11ation of 3 -, '., like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic infOlmation. Confidential information includes not only written infonnation, but also information transferred orally, visually, electronically, or by other means. Confidential inforn1ation disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agrcement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consnltant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of 1m\!; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and ,hall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of Executive Director of Parks, Recreation and Community Service City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 and, 4 '. City Attomey City of Santa Ana 20 Civic Center Plaza (M-29) P.O, Box 1988 Santa Ana, Califomia 92702 telefacsimile (714) 647-6515 To Consultant: Salsa Swing Connection 2221 Harbor Blvd Costa Mesa, CA 92607 Attn: Greg Hemandez A party may change its address by giving notice in wliting to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effecti ve or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event ofa conflict between the temlS of this Agreement and'any attachments hereto, the temlS of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City, Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement 5 , shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement perfonned by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services perfonned by Consultant prior to receipt of such notice oftennination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property ofthe City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specitied in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because ofrace, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as detined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affilms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, perfornlance, and enforcement of any of the clauses of this Agreement shall be detennined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought 'or arise out of, in cOlmection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the tern1 of this Agreement, maintain all necessary licenses, pern1its, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other govemmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 6 , 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each ofthe terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. A Il Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the rarties hereto have executed this Agreement the date and year first above written. , , CITY OF SA1'1TA ANA t::m~Y City Manager ATTEST: PATRICIA E. HEALY Clerk of the Counci.\ APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By: Michael Vigliotta Deputy City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT '\ ~re~~ TITLE) tJW ~ C eve Williams Executive Director of the Executive Director of Parks, Recreation and Community Service Agency 584-64-2540 Employer ID # or Individual SS # 7 , . EXHIBIT A SCOPE OF SERVICES A. Consultant will conduct salsa acrobic classes to adults for a period of six months, teaching classes periodically as follows: Adult aerobic classes will be held at EI Salvador Center on Monday & Wednesday from February 5, 2001 - June 30, 2001 (6:00pm-7:00pm, Social Hall). No classes will be held on February 12, February 19th and May 28th. B. Consultant will provide and be responsible for equipment, records, personnel and clean up of the facilities and material necessary to insure the effectiveness of said instruction. Class Size Registration A. The minimum number of participants is 12 per class, up to 40. B. No registration shall be accepted after the second week of classes. C. In the event the minimum number of enrollees is not realized by the second week of classes, the class shall be canceled and Consultant will be under no obligation to provide services, and City will be under no obligation to pay Consultant compensation. Fees A. The fee to participants shall be no more that $ 20.00 peI month per enrollee. No refunds shall be made to participants, unless class is canceled by the Parks, Recreation and Community Services Agency. B. City shall collect said fees from each participant in the class during the period of registration. Consultant shall not collect fees and refer participants to Center office. City agrees to pay Consultant seventy percent (70%) of the total fees within fifteen (15) working days after completion of said class period. City and Consultant agree that City shall retain thirty percent (30%) of the fees collected. C. Consultant agrees that City representative shall be entitled to audit Consultant's records to insure compliance with the Agreement. : i.' ~. EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses perfolTIled by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses perfornled by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance can'ied by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such persoll or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30).days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.t , this endorsement form as a part of Effecti ve Policy # Issued to Named Insured Countersigned by Authorized Representative ~1..~!!!~!!!~:.JI\lmll.llllll;lllaJl&ijlllq~jllll~llillll'11Ill'llllrl!I~llllllt!l!illll:!'I!11!!111!11!~ljllllIll" o~Jd~%r;' ;; THIS BI1,jDERIS"A TEMPORARY INSURA'NCE CONTRACT, SUBJECT TO THE CONDITIClNSSHOWNo'NTHE'REVERsts'IDE OF THIS FORM PRODUCER I r~,~N~. ._.. (800) 420-0555 COMPANY 10'NOER" MUNICIPALITIES INSURANCE SERVICES, INC. ESSEX INSURANCE CCMPANY I 3955 1920 E. 17th Street, Ste. 130 "^TO EFFE TlVO T';' "..pPlRATlO ." Santa Ana, CA 92705 01/04/01 12 :'01' Q{ I AM 01/04/02 E'\'2m AM ~ PM ~ NOON I THIS BINDER IS ISSUED TO EXTEND COVERAGE IN THE ABOVE NAMED COMPANY PER EX~lRING POLICY': DESCRIPTION OF OPERAT10NSNEHICLESIPROPERTY [Including location) CODE: ~~~~gr..~a l~. INSURED . - -- I SUB CODE: .. Leisure Class InstrUctors and The city Of Ana 20 Civic Center Plaza Santa Ana, CA 92701 ~ercise and Health Classes Santa Per the attached list for City employees / ::q~Q5!.~J~~$;:MM;@*tmIMmiUm!~H@H~}H[@m~mftmMJHTIml*nMmill~Mt~11t@l1~~[[m@tt~H~Jl1H~t[K@m~*mm@@tt1@trtfm;i;@ilitf:#&iM1jfgHMMf@@@UM;W;:!if: TYPE OF INSURANCE PROPERTY CAUSES OF lOSS = BASIC D BROAD D SPEC - COVERAGE/FORMS AMOUNT DEDUCTIBLE COINS % GENERAL liABILITY X COMMERCIAL GENERAL LIABI!..JTY :"?,: I CLAIMS MADE 00 OCCUR _ OWNER'S & CONTRACTOR'S PROT - Policy Number:3CE9267 GENERAL AGGREGATE PRODUCTS. COMP/O? AGG PERSONAL &. ADV INJURY EACH OCCURRENCE FIRE DAMAGE (Anyone lirel M;;O EXP (Any OM p~'scnl RETAO CATE FOR CLAIMS MAD;;: AUTOMOBILE LIABILITY - _ ANY AUTO _ ALL OWNED AUTOS _ SCHEOULED AUTOS _ HIRED AUTOS _ NON. OWNED AUTOS - COMBINED SINGLE LIMIT BODilY INJURY [Per persoll) SODlI..Y INJURY [Per accident! PROPERTY DAMAGE MEDICAL. PAYMENTS PERSONAL. INJURY PROT UNINSURED MOTORIST AUTO PHYSICAL DAMAGE DEDUCTIBLE ~ ALL VEHIC:..ES I COLLISION: 1 OTHER THAN COL.: ~AGE lIASILlTY _ ANY AUTO - U SCHEDULED VEHICLES I ACTUAL CASH VALUE I STATED AMOUNT I OTHER AUTO ONLY.. EA ACCIDENT OTH::R THAN AUTO ONL.Y; EACH ACCIDENT AGGREGATE EACH OCCURRENCE AGGREGATE S::Lf.1NSURED AETENTION I ! STATUTORY LIMITS E..1.CI-l ACCIDENT DIS::ASE. POLICY LIMIT DISEASE. EACH EMPL.OYEE EXCESS liABILITY I UMBRELLA fORM 1 OTHER THAN UMBRELLA FORM RETRO DATE FOR CLAIMS MADE: WORKER'S COMPENSATION AND EMPLOYER'S liABILITY SPECIAL COND1TJONSI OTHER COVERAGES NAME & ADDRESS '^"',M~!!f!f.!1i~YE ;X~ri' 'Ii ,'1Y'l~,i\Mi " , . "',,' . ,,"^', "~".,."."",^,,, .' " 1"..,Si\ '" . ., ~' MORTGAGE: ADDITIONAL INSURED I ~ A.I. ~ A LOSS PAYEE , _ lOAN' MIchael Vigliotta 0 Deputy City Attarne} , AUTHO~ESENTA~IVE ...-.. ~IU~ Carol A. 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