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HomeMy WebLinkAboutSINCLAIR, ANDREA D. 1 - 2007 INSURANCE tiN FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES !~ / - () g CLERK OF COUNCIL DATE: 5- d-) - D7 N-2007-053 O'(Jf2C:5 {J) LC,1\~O-) CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this I ~~ day of ,2007 by and between ANDREA D. SINCLAIR, an individual (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"). RECITALS A. The City desires to retain a consultant having special skill and knowledge to instruct classes in the City's leisure program. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed 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 terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform 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 $10,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2008, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Parks, Recreation and Community Services 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 be construed to create an employer-employee relationship, a joint 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 regulations 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. INSURANCE 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 described 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 performance ofthis 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 $1,000,000 per occurrence. 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 form by the City Attorney. b. Reserved 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. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. 2 (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish 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 terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnity and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability 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. The Consultant further agrees to indemnity, hold harmless, 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 asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance ofthis Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. 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. 3 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall 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 copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 571-4235 To Consultant: Andrea D. Sinclair l-Hl956 W. 1 th 51., lie Santa Ana, CA 92706 Telefacsimile (714) 836-4849 J ;jf L.- 950 c,kst / i7'7,S'dN. A party may change its address by giving notice in writing to the other party. If sent by mail, 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, communication shall be effective 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 terms of this Agreement and any attachments hereto, the terms 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 4 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 shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed 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 performed by Consultant prior to receipt of such notice of termination. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms 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 has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined 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 connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, 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 governmental agencies. 16. MISCELLANEOUS PROVISIONS a. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: ~'.f{# -~~ PATRICIA E. HEAL Y Clerk of the CC>Utlcil CITY OF SANTA ANA ~ DAVIDN. City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT GERARDO MOU T Executive Director Parks, Recreation and Community Services .~ ANDREA D. SINCLAIR TaxID# fp0756?2% ~ 6 EXHIBIT A SCOPE OF SERVICES I. Consultant will teach a low impact exercise class, 2 days per week, one hour per day to increase core strength, flexibility and balance. Consultant will also teach CPR & First Aid seminars, including adult, child and infant CPR, relief of choking and basic first aid. 2. Consultant will confer with City to set the time and location of the classes, including days and hours of class and holidays to be observed. The City reserves the right to preempt any class as City deems necessary. Thirty (30) day notice of such change will be provided, if possible. Instructor may reschedule any class which has been preempted. 3. Consultant will provide and be responsible for equipment, records, personnel and clean up of the facilities and materials necessary to ensure the safety and effectiveness of said instruction. CLASS SIZE - REGISTRA nON I. The minimum number or participants for the exercise class is 5 per class, the maximum is 25. The minimum number of participants in the CPR classes is 5, with a maximum of 10. 2. No registration will be accepted after the second week of classes. 3. In the event the minimum number of emollees is not realized by the second week of classes, the class shall be cancelled, Consultant will be under no obligation to provide services and the City will have no obligation to pay Consultant compensation. FEES I. Each participant in the exercise class shall pay a $18.00 class registration fee per monthly session. Each participant in the CPR class shall pay a $35.00 registration fee. 2. No refunds will be made to participants after the commencement of a session unless the class is cancelled by the City. 3. City shall collect registration fees from each participant. Consultant shall refer interested students to City for registration. 4. Consultant shall receive seventy percent (70%) of the total fees collected each month. City and Consultant agree that City shall retain thirty percent (30%) of the fees collected as an administration fee. 5. Consultant agrees City is entitled to audit Consultant's records and classes to ensure compliance with this Agreement. 6. Consultant may not waive class participation/registration fees. 7. City shall prepare class rosters and provide a copy to Consultant. Only registered participants may participate in class. 7 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: I. 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 performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed 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 carried 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 person 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.) , this endorsement form as a part of Effective Policy # Issued to Named Insured Countersigned by Authorized Representative 8 EVANSTON INSURANCE COMPANY CERTIFICATE NO.: 2007-22 CERTIFICATE OF INSURANCE EXCLUDES COVERAGE FOR NOMINEE EVENTS. SEE SEPARATE APPLICATIONS FOR NOMINEE EVENTS. SPECIAL EVENT LIABILITY PROGRAM PRODUCER: PUBLIC ENTITY (ADDITIONAL INSURED) City of Santa Ana Alliant Insurance Services, Inc. in conjunction with 20 Civic Ccntcr Plaza, M-28 Apex Insurance Services Santa Ana, CA 92701 P. O. Box 6450 Newport Beach, CA 92658 (949) 660.8163 License No: OC 36861 NAMED INSURED (EVENT HOLDER): EVENT INFORMATION: Andrea D. Sinclair TYPE: Health and Fitness 950 W. 17st Street #C DA TE(S): Mav - December 2007 Santa Ana, CA 92706 LOCATION: Senior Center and Lawn Bowlin!! ..Liquor Liability afier 2am 0 This is to certi/)' that the policies of insurance listed below have been issued to thc insured named above for the policy period indicated. Notwithstanding any requirements, terms or conditions of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance afforded by the policies described hcrein is subject to all the terms, exclusions and conditions of sucb policies. Limits shown may have been rcduced by paid claims. INSURANCE CARRIER: Evanston Insurance Company MASTER POLICY NUMBER: 04SEP100000 I . MASTER POLICY DATES: EFFECTIVE: JANUARY 1,2007 EXPIRATION: JANUARY 1,2008 'COM'>!ERCIAL GENERAL LIABILITY OCCURRENCE fORM DEDl;crmr.E. />iONE General Aggregate Limit $ 2.000.000 Products & Completed Operations 1,000,000 ,_Personal & Advertising Injury I.OOD,OOO : Each Occurrence Limit 1,000,000 , Fire Damage (f\ny One Fire) 50,000 Medical Payments (Any One Person) 5.000 The limits of insurance apply separately to each event insured by this policy as if a sepafllte policy;)f insurance has been issued for that event "Who is insured" is amended to include, as an insured, the person or organization shown in this schedule, but only with respect to liability arising out of the ownership, maintenance or use of the premises used by the named insured (event holder). This msuranco;:: does not apply to: Any .'occurrence" which takes place after the event holder ceases to he a tenant in that premises OTHER ADDITIONAL INSUREDS ' . , ,"JV LU AS TO FORM ---~~ , l,c:.LJLj Su!. Sheedy -\.c-'i~l.:~;1l Cily Attorney on I' I CANCELLATIO:-J: Should the above described policy to cancelled before the expIration dale thcn:of th;: issuing company will mail 30 days written notice (() the : certificate holder and additional insureds listed. ~;Z~ AUTHORIZED REPRESENTATIVE: ,DATE ISSUED: May 7. 2007 ~ ~.;~. "Generated by Risk Management Division by: