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HomeMy WebLinkAboutJAMES, MARK-2017w City of Santa Ana Clerk of the Council AGREEMENT TERMINATION FORM Please complete this form in its entirety when the attached agreement and all amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requirements have been satisfied prior to signing the termination form. Is the agreement(s) a permanent record? Yes No Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with COTC Office Use Only 79!9 AUC 22 I'M 4: 717 CITY Or SANTA ANA CLERK OF COUNCIL N-2016-182 No. was completed on Iiaon and final payment has been made. (List all amendments. Use space below if needed.) Department: PR� csA Phone/Ext.: q:9ICA Signature: Date: Revised: 10-18-16 IN ,)_N Pk N-2016-182 WM NO WE. '' T C' 4 15 RECREATION SERVICES AGREEMENT 0: PRQS(1) THIS AGREEMENT is made and entered into this 1" day of January, 2017, by and SilvbeReen Mark James (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 piano classes 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 terns 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 twenty percent (30%) of all gross revenue received from program participants as an administrative fee. 3. TERM The Term of this Agreement shall commence on the date set forth above through December 31, 2017, 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 ofinsured's provisions. b.Worker's Compensation liisurance, 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 Linder 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. (i i) 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 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. 6, INDEMNIFICATION Provider agrees to and shall indemnity 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 I of this Agreement. The Provider furtheragrees 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 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 of iiidiri�ii,--Whi—ch--wo—u-i-d-c—oti-flict—in —any m---a-riner with performance of services specified Linder this Agreement. S. LIVE SCAN BACKGROUND CHECK Providers, and any employees, subcontractors or substitutes, 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 iii 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 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) 5 71-4211 To Provider: Mark James 5213 W, Plight Ave. Santa Ana, CA 92704 A party may change its address by giving notice in writing to the other party. Thereafter, tiny communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been (riven three (3) days after it has been deposited in the United States snail, duly registered or certified, with postage prepaid, and addressed as set forth above, if sent by fax„ communication shall be effective or dcomed 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. to. 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 he event cif a con �— flfctbetween the teens 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 terns 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. IL 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 mill 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 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 snake -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 i. s Agreement may be terininated 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 tendered prior to the effective date of tonnitiation. b. Termination or cancellation of classes by the Provider outside of Section I l.b. 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. DISC RI NIINATION 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. J URISDICTFON - VENUE This Agreement has been execute([ 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. 1,6. LICENSES Provider shall, throughout the terra 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 Aria and all other governmental agencies. 17. SEVERABILITV 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 uneriforceability 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 pat -ties 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 parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by 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: AMaria D, Ruizar Clerk of tho Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: Gerardo Monet Executive Director of Parks, Recreation and Community Services Agency --l— PROVIDER: Mark dins Exhibit A SCOPE OF SERVICES— Piano/Mark James A. Provider shall conduct various classes B. Provider shall teach such or similar classes (1) at the times below at facilities to be designated by the City or (2) on a scheduled 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. • Beginning & Intermediate Piano class will consist of monthly sessions, one day per week, 1 hour per day, 7 years - 14 years old $35/4weeks & $43.75/5weeks (El Salvador) *NEW C. 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. CLASS SIZE A. Each class must have a minimum of 8 paid students and no more than a maximum of 12. B. No registration will be accepted after the second meeting of class. C. 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 CLASS FEES A. Each participant shall pay a 35/4weeks & $43.75/5weeks registration fee per month. Anticipated revenue not to exceed $25,000.00. B. No refunds will be made to participants after the first week of class unless the class is cancelled by the City. C. 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. D. Provider shall receive seventy per cent (70%) of the total fees collected each month. City and Provider agree that City shall retain thirty per cent (30%) of the fees collected as an administration fee. E. Provider agrees that City is entitled to audit Provider's records and classes to insure compliance with this Agreement. F. Provider may not waive class participation/registration fees. G. City shall prepare class rosters and provide a copy to Provider. Only registered participants may participate in class. WORKERS' COMPENSATION DECLARATION I F loc r k S,i me s hereby affirm under penalty of perjury, the (Namerride) following declaration I certify on behalf of { r_[ yA m is that during the term of my (Consullam/Company Name) contract for e tawe c.l.tss services with the City of Santa Ana, I will not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions and provide proof of workers' compensation coverage. DATE: 12-/ 13 / ( b By: Name: M otr k S nvvto s Title: Ow htr Telephone: "71 ti - '1 ? r- 7 V Cr WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. EVANSTON INSURANCE COMPANY CERTIFICATE NO.: 2017-06 CERTIFICATE OF INSURANCE SPECIAL EVENT" LIABILITY PROGRAM PRODUCER PUBLIC ENTITY (ADDITIONAL INSURED) Alliant Insurance Services, Inc, in conjunction with City of Santa Ana Apex Insurance Services 20 Civic Center Plaza P. O. Box 6450 Santa Ana, CA 92701 Newport Beach, CA 92658 License No: OC 36861 NAMED INSURED (EVENT" HOLDER): EVENT INFORMATION: Mark James TYPE: Piano 5213 W Flight Ave. DATE(S): 1/01/17-12/31/17 Santa Ana, CA 92704 LOCATION: El Salvador Center *Liquor Liability Yes [:1 No N "Liquor Liability after 12 and ends before 2 am El .............. This is to certify that the insurance policy listed below has been issued to the above insured named (event holder) for the policy period indicated. The insurance described herein IS Subject to all the terms, exclusions and conditions of such policy(ies) unless amended as described in Special Conditions. INSURANCE, CARRIER: Evanston Insurance Company MASTER POLICY NUMBER: SEP41023 MASTER POLICY DATES: EFFECTIVE: JANUARY 1, 2017 EXPIRATION: JANUARY 1, 2018 COMMERCIAL GENERAL LIABILITY OCCURRENCE FORM DEDUCTIBLE: NONE General Aggregate Limit S2 �000:()00 Products & Completed Operations 1 000000 SPECIAL CONDITIONS: Personal & Advertising Injury 1,000,000 The following endorsements attached to Each Occurrence Limit 1.000,000 the Master Policy do not apply to this Damage To Premises Rented To You (Any One Premises) 100,000 Certificate OfInsurance: Medical Payments (Any One Person) 5,000 Liquor Liability (if purchased) 1,000,000 Optional Limits Purchased ® $1,000,000/$3,000,000 A F-1 $2,000,00052,000,000 Damage To Property (If purchased) �ell \e',N The limits ofinsuranceapply separately to each event insured by this polucy as if separate policy ofinSLIrancc hj,•04.�,V% !Rbll �119PK nt, OTHER ADDITIONAL INSURED* -`--5\\'4 LC CANCELLATION: Should the above described policy be cancelled before the expiration date thereof, notice will he delivered in accordance with the policy provisions. AUTHORIZED REPRESENTATIVE: DATE ISSUED: —December 20, 2016 by Stella Fajardo . ............. . ......