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HomeMy WebLinkAbout25B - AGMT - LEISURE CLASSES INSTRUCTORS REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JUNE 17, 2013 TITLE: APPROVED ? As Recommended AGREEMENTS WITH LEISURE CLASS ? As Amended INSTRUCTORS ? Ordinance on 15t Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For IK;4-7) CONTINUED TO FILE NUMBER ITY ANAGER RECOMMENDED ACTION 1. Authorize the City Manager and Clerk of the Council to execute an agreement with Martin Torres for Karate Do Kai instructions for a two-year term in the amount of $30,000 per year, subject to non-substantive changes approved by the City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute an agreement with Choc Le for Tae Kwon Do instructions for a two-year term in the amount of $30,000 per year, subject to non-substantive changes approved by the City Attorney. 3. Authorize the City Manager and Clerk of the Council to execute the attached agreement with Melina Herrera for Care Bear Academy instructions for a two-year term in the amount of $30,000 per year, subject to non-substantive changes approved by the City Attorney. DISCUSSION The Parks, Recreation and Community Services Agency Leisure Services Program offers low-cost courses and activities to Santa Ana residents in the areas of Music and Dance, Arts, Nature and Science, Equestrian and Aquatics, Sports, and other special interests. The quarterly Leisure Class brochure has been instrumental in increasing the number of students registering for many classes. Since last summer, the Parks, Recreation, and Community Services Agency has expanded the Leisure Services Program to include 127 new recreational and educational classes. 25B-1 Leisure Class Agreements June 17, 2013 Page 2 Martin Torres has been providing Karate Do Kai instruction for our Leisure Class Program since October 2003. Mr. Torres currently offers five classes for ages four years old to adult, four days a week. He is averaging over 40 students per class. Karate Do Kai is a Japanese style martial arts class that develops one's self-discipline, physical and mental attributes. Karate Do Kai encourages children to become better students, teaches respect for one another, and encourages children to make better decisions. This agreement will provide $30,000 of programming annually from July 1, 2013 through June 30, 2015. Choc Le has been providing Tae Kwon Do classes for our Leisure Class Program since December 2000. Mr. Le provides four hours of instruction per week, with over 100 participants of all ages. Classes are offered for beginner, intermediate, and advanced level for children and adults. This ancient martial art develops self-defense techniques and skills that increase physical fitness, motivation, and self esteem. This new agreement will provide $30,000 of programming annually from July 1, 2013 through June 30, 2015. Melina Herrera has been providing Care Bear Academy instruction for our Leisure Class Program since February 2011. Ms. Herrera currently offers two classes for ages four to five years old, four days a week. She is averaging over 25 students per class. Care Bear Academy is a program to get children ready for kindergarten through group play, art and crafts, social skills in a classroom setting. This agreement will provide $30,000 of programming annually from July 1, 2013 through June 30, 2015. The Leisure Services Program is a revenue-generating program that uses registration fees to pay for instructors and supplies. The number of leisure classes and the number of class registrations has increased significantly this fiscal year. FISCAL IMPACT Funds for this item are available in the Recreation Contract Services account (no 01113230 62300). APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet Francisco Gutierrez Executive Director Executive Director Parks, Recreation, and Community Services Finance & Management Services Agency d1.~ Agency 25B-2 RECREATION SERVICES AGREEX1ENT THIS AGREEMENT made and entered into this Is` day of July 2013, by and between Martin Torres (hereinafter "Provider") 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 recreation service provider having special skills, resources and knowledge to conduct Martial Arts techniques for youth in its leisure class program. B. Provider represents that Provider is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Provider represents that it is knowledgeable in its field and that any services performed by Provider under this Agreement will be performed in compliance with such standards as may reasonably be expected. 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 Provider shall perform those services as set forth in Exhibit A to this Agreement. 2. CONIPEtiSATION In consideration for the right to provide the programs set forth in Exhibit A, City agrees to pay the Provider seventy percent (70%) of all gross revenue received from program participants. Provider shall receive one hundred percent (100%) of the total fees collected each month at Logan Center. Revenue from this class to Provider shall not exceed $30,000 annually. Payment to Provider shall be made within fifteen (15) days following completion of each class. 3. TERNI This Agreement shall be for a two (2) year period, commencing on July 1, 2013 and terminating on June 30, 2015, 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 Provider 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 manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services. Provider shall pay all salaries and wages, employers social 1 25B-3 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, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Provider shall maintain commercial general liability insurance which 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 Provider's operations in the performance 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 51,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City, and (e) contain standard separation of insured's provisions. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Provider, if Provider 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, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than S 1,000,000 per accident. c. Sexual Abuse & Molestation Insurance Coverage. To maintain a safe environment, the Provider must provide a Youth Protection Policy and proof of Sexual Abuse & Molestation insurance coverage of at least S 1,000,000. Provider will be held accountable for conducting a background clearance (live-scan) for staff that have direct interaction with youth participants. d. The following requirements apply to the insurance to be provided by Provider pursuant to this section: (1) Provider shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (ii) 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 Provider 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 afTect Provider's right to be paid for its 25B-4 tune and materials expended prior to notification of termination. Provider 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 Provider agrees to and shall indemnify and hold harmless the City, its officers, agents, employees. Providers, 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 Provider or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. The Provider further agrees to indemnify, 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. CONFLICT OF INTEREST Provider 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. 8. LIVE SCAN BACKGROUND CHECK Providers in contact with minors under eighteen (18) years of age shall arrange for and submit to a Live Scan electronic background check for criminal history available through the California Department of Justice as a condition of this Agreement and provide proof of compliance prior to performing services hereunder. 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 Council City of Santa Anna 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 26 Civic Center Plaza (M-75) P.O. Box 1988 3 25B-5 Santa Ana, California 42702 Telefacsimile (714) 571-4211 To Provider: Martin Torres 12692 Rancho Wav Garden Grove, CA 92843 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. 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 Provider, and supersedes any and all other agreements, oral or written, between the parties. In the event of a 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 Provider. 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 Provider or 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 is not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Provider, Provider 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 w=ithout the City's prior written consent shall be considered null and void. 12. TER1<IINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. Termination or cancellation of classes by the Provider must be given to the City at least thirty (30) days prior to termination cancellation. Failure to provide adequate cancellation notice to the City may put future contracting of business with the City at risk. 13. DISCRIMINATION Provider 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 4 25B-6 employment related activities. Provider 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 he 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. LICENSES Provider 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. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 5 25B-7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SA:NITA ANA MARIA D. HUIZAR KEVIN O'ROURKE Clerk of the Council Interim City Manager APPROVED AS TO FOIUNI: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney RECOMNIENDED FOR APPROVAL: PROVIDER GERARDO MOUET MARTIN TORRES Executive Director of Parks, Recreation and Community Services 6 25B-8 Exhibit A SCOPE OF SERVICES - Martin Torres - Martial Arts A. Provider shall conduct Martial Arts techniques for children aged 4-15 years old. B. Baby Karate Do Kai class will consist of monthly session, held 2 days per week, I hour per day- $30/per month session. C. Beginning, Advance Karate Do Kai for ages 7-12 year olds, class will consist of monthly session, held 2 days per week, I hour per day- $30/per monthly session. D. Beginning, Advance Karate Do Kai for ages 12 years old & up, class will consist of monthly session, held 2 days per week, 1 hour per day- S301per monthly session. E. All Levels Karate Do Kai for ages 5-15 years old & up, class will consist of monthly session, held 2 days per week, I hour per day $30/per monthly session. F. All Levels Karate Do Kai for ages 5 years old up, class will consist of monthly session, held 2 days per week, I hour per day- S30/per monthly session. G. All Levels Karate Do Kai for ages 5-15 years old, class will consist of monthly session, held 2 days per week, t hour per day- 520!per monthly session. H. Provider will provide and be responsible for equipment, records, and personnel and cleanup of the facilities and materials necessary to ensure the safety and effectiveness of said instruction. 1. If Provider allows others to teach his/her class, those teachers must be over 2l; have obtained and maintain an instructor rating, and be covered by Providers' insurance. Provider shall provide City with documentation to verify instructor and insurance requirements. Black-belt rated students may warm up beginning students, however, Provider trust be present at all times. CLASS SIZE REGISTRATION 1. The minimum number or participants is 5 per class, the maximum is 45. 2. No registration will be accepted after the second week of classes. 3. In the event the minimum number of enrollees is not realized by the second meeting of the class, the class shall be canceled. Provider will be under no obligation to provide services and the City will have no obligations to pay Provider compensation. FEES 1. Each participant shall pay a $20.00/$30.00 class registration fee per monthly session. Anticipated class revenue not to exceed $30,000.00 annually over a two (2) year period. 2. No refunds will be made to participants after the commencement of a session unless the class is cancelled by the City. 3. fhe City shall collect registration fees from each participant during the registration period. Provider shall not collect fees, but shall refer all interested participants to City for registration. 4. Provider shall receive seventy percent (70%) of the total fees collected each month. City and Provider agree that City shall retain thirty percent (30%) of the fees collected as an administration fee. 5. Provider shall receive one hundred percent (100%) of the total fees collected each month at Logan Center 7 25B-9 6. Provider agrees that City is entitled to audit Provider's records and classes to insure compliance with this Aarcement. 7. Provider may not waive class participationlregistration fees. g. City shall prepare class rosters and provide a copy to Provider. Only registered participants may participate in class. 25B-10 RECREATION SERVICES AGREEMENT THIS AGREEMENT made and entered into this I" day of July, 2013, by and between Choc Le (hereinafter "Provider") 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 recreation service provider having special skills, resources and knowledge to provide Tae Kwon Do instruction in its leisure class prom. B. Provider represents that Provider is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Provider represents that it is knowledgeable in its field and that any services performed by Provider under this Agreement will be performed in compliance with such standards as may reasonably be expected. 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: I. SCOPE OF SERVICES Provider shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION In consideration for the right to provide the programs set forth in Exhibit A, City agrees to pay the Provider seventy percent (70%) of all gross revenue received from program participants. Revenue from this class to Provider shall not exceed 530,000 annually. Payment to Provider shall be made within fifteen (15) days following completion of each class. 3. TERM This Agreement shall be for a two (2) year period, commencing on July 1, 2013 and terminating on June 30, 2015, 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 Provider 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 manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services, Provider 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 nixes. I 25B-11 S. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Provider shall maintain commercial general liability insurance which 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 Provider's operations in the performance 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 S 1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s), (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. b. Worker's Compensation Insurance, In accordance with the provisions of Section 3300 of the Labor Code, Provider, if Provider 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, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Sexual Abuse & Molestation Insurance Coverage. To maintain a safe environment, the Provider must provide a Youth Protection Policy and proof of Sexual Abuse & Molestation insurance coverage of at least $1,000,000. Operator will be held accountable for conducting a background clearance (live-scan) for staff that have direct interaction with youth participants. d. The following requirements apply to the insurance to be provided by Provider pursuant to this section: (i) Provider shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (ii) 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 Provider 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 affect Provider's right to be paid for its time and materials expended prior to notification of termination. Provider waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25B-12 6. INDEMNIFICATION Provider agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Providers, 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 Provider or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. The Provider further agrees to indemnify, 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. CONFLICT OF INTEREST Provider 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. S. LIVE SCAN BACKGROUND CHECK Providers in contact with minors under eighteen (18) years of age shall arrange for and submit to a Live Scan electronic background check for criminal history available through the California Department of Justice as a condition of this Agreement and provide proof of compliance prior to performing services hereunder. 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 Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-696 With copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 26 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92702 a 25B-13 To Provider: Choc Le 4 Fabriano Irvine, CA 92620 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. 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 deerned 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 Provider, and supersedes any and all other agreements, oral or written, between the parties. In the event of a 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 Provider. The parties agree that anv 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 Provider or 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 is not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Provider, Provider 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. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days' written notice of termination. Termination or cancellation of classes by the Provider must be given to the City at least thirty (30) days prior to termination/cancellation. Failure to provide adequate cancellation notice to the City may put future contracting of business with the City at risk. 13. DISCRIMINATION Provider 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. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 4 25B-14 14. JURISDICTION - VENUE *11is Agreement has been executed and delivered in the State of California and the validity, interpretation, perfonnance, 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. LICENSES Provider 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. lb. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 5 25B-15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. I UIZAR KEVIN O*ROURKE Clerk of the Council Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney RECONLNIENDED FOR APPROVAL: PROVIDER GERARDO MOUET CHOC LE Executive Director of Parks, Recreation and Community Services 6 25B-16 EXHIBIT A SCOPE OF SERVICES - Choe Le Tae kYL`on Do A. Provider will instruct students in martial arts techniques with an emphasis on Tae Kwon Do. Classes shall be offered for beginner, intermediate and advanced level children and adults. ~ B. Provider and City will mutually agree to the day, times and location of the classes, and holidays to be observed. The City reserves the right to preempt any class as City deems necessary. Thirty (30) days' notice of such change will be provided, if possible. Instructor may reschedule any class which is preempted. C. Provider will provide and be responsible for equipment, records, personnel and cleanup of the facilities and materials necessary to ensure the safety and effectiveness of said instruction. D. If Provider allows others to teach his/her class, those teachers must be over 21, have obtained and maintain an instructor rating, and be covered by Providers' insurance. Provider shall provide City with documentation to verify instructor and insurance requirements. Black-belt rated students may warm up beginning students, however, Provider must be present at all times. CLASS SIZE REGISTRATION 1, The minimum number of participants is 10 per class, the maximum is 134. 2. No registration will be accepted after the second week of classes. 3. In the event the minimum number of enrollees is not realized by the second meeting of the class, the class shall be cancelled. Provider will be under no obligation to provide services and the City will have no obligation to compensate Provider. FEES 1. Each participant shall pay a 520.00 class registration fee per monthly session. 2. No refunds will be made to participants after the commencement of a session unless the class is cancelled by the City. 3. The City shall collect registration fees from each participant during the registration period. Provider shall not collect fees, but shall refer all interested participants to City for registration. 4. Provider shall receive seventy percent (70%) of the total fees collected each month. City and Provider agree that City shall retain thirty percent (30%) of the fees collected as an administration fee. 5. Provider agrees that City is entitled to audit Provider's records and classes to ensure compliance with this Agreement. 6. Provider may not waive class participation/registration fees. 7. City shall prepare class rosters and provide a copy to Provider. Only registered participants may participate in class. 7 25B-17 25B-18 RECREATION SERVICES AGREEMENT THIS AGREEMENT made and entered into this 1st day of July, 2013, by and between Melina Herrera (hereinafter "Provider"), 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 an instructor to provide instruction in its leisure class program. B. Provider represents that Provider is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Provider represents that it is knowledgeable in its field and that any services performed by Provider under this Agreement will be performed in compliance with such standards as may reasonably be expected. 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 Provider shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION In consideration for the right to provide the programs set forth in Exhibit A, City agrees to pay Provider eighty percent (80%) of all gross revenue received from program participants. Revenue from this class to Provider shall not exceed $30,000 annually. Payment to Provider shall be made within fifteen (15) days following completion of each class. 3. TERM This Agreement shall be for a two (2) year period, commencing on July 1, 2013 and terminating on June 30, 2015, 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 Provider 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 manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services. Provider 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. 259-19 5. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Provider shall maintain commercial general liability insurance which 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 Provider's operations in the performance 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 $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Provider, if Provider 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, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Sexual Abuse & Molestation Insurance Coverage. To maintain a safe environment, the Provider must provide a Youth Protection Policy and proof of Sexual Abuse & Molestation insurance coverage of at least $1,000,000. Operator will be held accountable for conducting a background clearance (live-scan) for staff that have direct interaction with youth participants. d. The following requirements apply to the insurance to be provided by Provider pursuant to this section: (i) Provider shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (ii) 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 Provider 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 affect Provider's right to be paid for its time and materials expended prior to notification of termination. Provider waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25b-20 6. INDEMNIFICATION Provider agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Providers, 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 Provider or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. The Provider further agrees to indemnify, 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. CONFLICT OF INTEREST Provider 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. 8. LIVE SCAN BACKGROUND CHECK Providers in contact with minors under eighteen (18) years of age shall arrange for and submit to a Live Scan electronic background check for criminal history available through the California Department of Justice as a condition of this Agreement and provide proof of compliance prior to performing services hereunder. 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 copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 26 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 571-4211 259-21 To Provider: Melina Herrera 17 Calabria Street Irvine, CA 92712 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. 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 Provider, and supersedes any and all other agreements, oral or written, between the parties. In the event of a 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 Provider. 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 Provider 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 Provider, Provider 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. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Provider shall pay City all compensation due prior to receipt of such notice of termination. 13. DISCRIMINATION Provider 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. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 25B-22 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. LICENSES Provider 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. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 259-23 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR PAUL M. WALTERS Clerk of the Council Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: PROVIDER GERARDO MOUET Melina Herrera Executive Director of PRCSA 256-24 EXHIBIT A SCOPE OF SERVICES - MELINA HERRERA 1) CARE BEARS EARLY STEPS classes will be 4 days a week, 3 hours of class conducted in 12-week sessions. 2) The class is $100.00 per month per participant. No refunds shall be made to participants unless the class is cancelled as set forth in Section 4, below. Anticipated class revenue not to exceed $30,000 annually. 3) The minimum number of registered and paid participants is 11 children per class. The maximum is 20. 4) In the event the minimum number of enrollees is not realized by the first class, the class may be cancelled by mutual agreement of Provider and City. In such event, no compensation shall be owed Provider. 5) City shall register and collect fees from each participant in the class during the period of registration. City shall pay Provider eighty percent (80%) of the total fees collected each month. City shall retain twenty (20%) of the fees collected as an administrative fee. 6) City shall be entitled to audit Provider's records to ensure compliance with this Agreement. Only registered and paid participants may participate in class. 7) Program location will be at Memorial Center and El Salvador Center. 8) Provider will provide and be responsible for equipment, records, and personnel and clean up of the facilities and materials necessary to ensure the safety and effectiveness of said instruction. 9) If Provider allows others to teach class, those teachers must be over 21, have obtained and maintain an instructor rating, and be covered by Providers' insurance. Provider shall provide City with documentation to verify instructor and insurance requirements. 256-25 25B-26