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HomeMy WebLinkAboutBOWEN, TIMOTHY D. - DBA PLAY-WELL TEKNOLOGIES 1-2015City of Santa Ana *, Clerk of the Council AGREEMENT TERMINATION FORM Please complete this form when the attached agreement and all amendments (if any) are no longer in effect. Return form to the Clerk of the Council Office (M-30). Call 647-6520 if you have any questions. The agreement with No. N-2015-115 was completed on (List all amendments. Use space below if needed.) Revised 08-23-10 COTC Office Use r!111 AUG 22 PH 4: 04 CITY OF SANTA ANA CLERK OF COUNCIL W2 i and final payment has been made. Department: Phone/Ext.: Signature: Date: INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES /"/fir CLERK OF COU CAL 2015 DATE: �IIL> P�2csC,� RECREATION SERVICES AGREEMENT N-2015-115 p THIS AGREEMENT is made and entered into this 151h of April 2015, by and between 0fl�,J Timothy D. Bowen, DHA Play -Well TE.Knologies (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 engineering fundamental classes to children 6-11 years old. S. 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 he is knowledgeable in his 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 the Provider seventy percent (70%) of all gross revenue received from program participants. Total revenue to Provider shall not exceed $25,000 annually, Payment to Provider shall be made within thirty (30) days following completion of the last class taught by Provider that month. City shall be responsible for collecting all fees from program participants. Provider shall not collect fees but will refer all interested participants to City for registration information. Provider agrees that City shall retain thirty percent (30%) of all gross revenue received from program participants as an administrative fee. 3. TERM This Agreement shall be for one (1) year, commencing on July 1, 2015 and ending on June 30, 2016, unless terminated earlier in accordance with Section 12 below. 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. Provider is not an agent, representative or employee of City and Provider shall have no authority to act on behalf of the City. 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 and $2,000,000 in the aggregate. 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. 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, (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, d. If Provider fails or refuses to produce or maintain the insurance required by this section or fails or refuses to f rnish 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 tennination 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. 6. INDEMNIFICATION Provider agrees to and shall defend, indemnify and hold harmless the City, its officers, agents, employees, contractors, 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 death, 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 personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arising 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. & LIT SCAN BACKGROUND CHECK Providers, and any employees, subcontractors or substitrrtes, in contact with minors tinder 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 perfonning 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 fax 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 Fax (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 Fax (714) 571-4211 To Provider: Timothy D. Bowen DBA Play -Well TEKnologies 224 Greenfield Avenue, Suite B San Anselmo, CA 94960 Telephone: (714) 861-9807 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 fax, 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 regarding the subject matter herein, 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/SUBSTITUTES a. Assignment, The experience, knowledge, capability and reputation of Provider were a substantial inducement for City to enter into this Agreement. Therefore, 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. b. Substitutes. In the event Provider is not able to teach a class due to illness or some other cause beyond Provider's reasonable control, Provider must procure, at its sole expense, a qualified substitute instructor to teach the class at its regular time and place. Provider shall ensure that substitute instructors are at least twenty-one (21) years of age and comply with the 4 City's insurance and live scan requirements contained herein. Evidence of compliance with City's insurance and live scan requirements shall be provided upon request. Provider must immediately notify the City of the substitute instructor's name, qualifications, address and phone number. If Provider cannot procure a qualified substitute and the City is unable to assist in this regard, then the class shall be canceled and a make-up class must be added to the session. Provider must notify participants as soon as possible of any class cancellation and make-up class. Provider must personally teach at least seventy-five percent (75%) of its offered classes. 12. TERMINATION a. This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Provider shall be entitled to receive, and City shall pay Provider, compensation for all services rendered prior to the effective date of termination. b. Termination or cancellation of classes by the Provider outside of Section I Lb. 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 and will result in the City's retention of ten (10%) percent of the final payment to Provider, 13. RECORDS Provider shall use attendance sheets generated and supplied by the City to record attendance in each class. Provider shall keep these and any other records in connection with the work to be performed under this Agreement and shall permit City, upon request, to review such records for a period of three (3) years from the date of final payment to Provider under this Agreement. 14. 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, teaching, 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. 15. 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. 16. 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 taws and regulations of the United States, the State of California, the City of Santa Ana and all other govertunental agencies. 17, S.EVERABILITY In the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 18. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 19. AUTHORITY The person(s) executing this Agreement on behalf of the panties hereto warrant that they are duly authorized to execute this Agreement on behalf of said panties and that be so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. IIuizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney n Sy: dJ M. Funk A sistant City Attorney 6 CITY( -V.rA4��NA David Cavazos City Manager RECOMMENDED FOR APPROVAL GERARDO MOUET Executive Director of Recreation and Coran Services Agency PR VIDER: bu(bAm,-, TIMOTHY . BOWEN ILoar DBA Play -Well TEKnologies Tl'lw RUV)e✓J Exhibit A SCOPE OF SERVICES— Timothy D. Bowen, DBA- Play -Well TEICnologies A. Provider shall conduct Engineering FUNdamentals: Mine, Craft, Build using Legos class for children & 11 yrs old. B. Provider shall teach such or similar classes (1) at the times below at a facility to be designated by the City or (2) on a schedule otherwise agreed upon by the parties for each class session or term, including the location, specific days and hours when classes will be held, and holidays to be observed, in accordance with City's needs. Mine, Craft, Build using Legos Class from July 20a11 to July 24, 2015, Monday to Friday each day from 9:00 a.m, to 12 noon. (five classes) C. Provider shall provide all materials, supplies, equipment, records and personnel. Provider shall be responsible for clean-up of the facilities and materials and shall ensure the safety and effectiveness of instruction. CLASS SIZE A. Mine, Craft, Build using Legos class must have a minimum of 11 paid students and no more than a maximum of 24. B. If the minimum registration has not been reached by the second class, the class may be cancelled by mutual agreement of Provider and City. Provider will be under no obligation to provide serviees for the cancelled classes, and the City will have no further obligations to pay Provider compensation for the remaining classes that were cancelled in that session. CLASS FEES A. Each participant shall pay class registration fees as established by City. B. Any materials fee shall be established by mutual agreement of City and Provider and shall be payable directly to Provider. C. Only registered participants may participate in class. D. Any refunds to participants will be made in accordance with City policy. `'� O® CERTIFICATE OF LIABILITY INSURANCE DATE I 6/10/2015�) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT. BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain Policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER McNamara Insurance Services, Inc. 1010 B Street, Suite 317 San Rafael CA 94901-2920 CONTACT Michael McNamara NAME: PHONE (415)457-7856 FAX NIT, 1415)457-7698 nooaless:Mike@4apolicy.com INSURERS AFFORDING COVERAGE NAIC# INSURER A:Philadel hia Insurance 18058 INSURED Tim Bowen, DBA: Play -Well TEKnologies 224 Greenfield Ave. Ste B San Anselmo CA 94960 INSURERB Rated by Multi Hartford Cols. 37478 INSURERC: INSURER D: INSURER E : 1 INSURER F: COVERAGES CERTIFICATE NUMBER:CL1522401769 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION 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 HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE AD BR POLICY NUMBER POLICY EFF MMIDEIYVYV POLICY EXPM MMIDDNYYY LIMITS GENERAL LIABILITY RRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS-MADEOCCUR X PHPKI297595 3/5/2015 10/1/2016 RENTED Be occurre ce 100,000 $A y one person) $ 5,000 ADV INJURY $ 1,000,000 GGREGATE $ 2,000,000 GENE AGGREGATE LI MIT APPLIESPER: -COMPIOP AGO $ 2,000,000 \ X POLICY PRO LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident BODILY INJURY (Pan person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS AUTOS #A' y4.. yg�� 'aJ BODILY INJURY(Peraccident) $ PROPERTY DAMAGE Peraccidenl $ $ X UMBRELLAUAB X OCCUR r4y EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,000 A EXCESS LIAR CLAIMS -MADE V DED I X I RETENTION$ 10, DOC $ FRUB490577 3/5/2015 10/1/2016 B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNERIEXECUTIVE X WC STATU- OTH- EL EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory In NH) NIA 57wECTQ7835 3/5/2015 3/5/2016 E. L. DISEASE - EA EMPLOYEE $ 1,000,000 f yyes, describe under DESCRIPTIONOFOPERATIONS below E. L. DISEASE -POLICY LIMIT $ 11000,000 A Professional Liability EPK1297595 /5/2015 10/1/2016 EACH INCIDENT 1,000,000 A Abuse/ Molestation EPK1297595 3/5/2015 10/1/2016 AGGREGATE 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Those usual to the Insured's Operations. Certificate Holder is an Additional Insured per the General Liability Deluxe Endorsement: Human Services PI-GLD-HS attached to this policy. Coverage is primary &non-contributory per the Additional Insured Primary and Non -Contributory Insurance PI-MANU-1 CERTIFICATE HOLDER CANCELLATION cacosta@santa-ana.org SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS, City Of Santa Ana Attn: Carmen Acosta AUTHORIZED REPRESENTATIVE, ATTN PRCSA 20 Civic Center Plaza Santa Ana, CA 92701 Kent Schaum/KENSCH ,,�.�!�-------___. ACORD 25 (2010105) INS025 ommms n1 @ 1988.2010 ACORD CORPORATION. All rights reserved. Th. ACr1Rn namE Ertel Innn ErE rmnieferorl mar4e of ARf)pn POLICY CHANGE DOCUMENT POLICY NO.: PFIPK1297595 Philadelphia Indemnity Insurance Companyl 101950 McNamara Insurance Services, Inc NAMED INSURED Tim Bowen dba Play Well TEKnologies MAILING ADDRESS 224 Greenfield Ave Ste B San Anselmo, CA 94960-2471 POLICY PERIOD: FROM 03/05/2015 TO 10/01/2016 at 12:01 A.M. Standard Time at your mailing address shown above. CHANGE EFFECTIVE 04/15/2015 CHANGE # 7 DESCRIPTION In consideration of the premium reflected, the policy is amended as indicated below: Added: Additional Insured City of Santa Ana it officers, employees, agents and representatives Form CG2026-Addl Insured -Designated Person or Organization applies With respect to Use of facilities to conduct classes Per attached schedule Path ID 8837301 Total Annual Additional/Return Premium $ 0.00 NO CHANGE COUNTERSIGNED (Date) 05/27/2015 Issue Date m Reviewed by ft- 2'er� Carmen Acosta PRCSA/Recreation Total Prorate Additional/Return Premium $ 0.00 NO CHANGE (Authorized Representative) Insurance Policy Page 1 of 1 Philadelphia Indemnity Insurance Company Additional Insured Schedule Policy Number: PHPK1297595 Additional Insured City of Santa Ana it officers, employees agents and representatives Attn: PRCSA 20 Civic Center Piz M-23 Santa Ana, CA 92701-4058 CG2026 - General Liability Re: Use of facilities to conduct classes Reviewed by Carmen Acosta PRCSAIRecreation Page 20 of 20 POLICY NUMBER: PHPK1297595 COMMERCIAL GENERAL LIABILITY CG 20 26 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED — DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): City of Santa Ana it officers, employees agents and representatives Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section 11 — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of your ongoing operations; or 2. In connection with your premises owned by or rented to you. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. Reviewed W men pp S CG 20 26 04 13 © Insurance Services Office, Inc., 2012 Page28of 79