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HomeMy WebLinkAboutA8895 - Mariana DuspivaCITY OF PALM SPRINGS INDEPENDENT CONTRACTOR AGREEMENT FOR INSTRUCTORS FY 2021-2022 THIS INDEPENDENT CONTRACTOR AGREEMENT FOR INSTRUCTORS ("Agreement") is made and entered into this -t day of S3UWO.L. , 2021, by and between Mariana Duspiva ("Contractor"), and the City of Pald Springs (the "City"). The City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. 1. RECITALS A. City is a public agency of the State of California in need of professional services for the following City -sponsored special event: (Yoga Instructor) B. Contractor is an independent contractor and possessed the necessary qualifications to provide such services. C. The Parties desire by this Agreement to establish the terms for City to retain Contractor to provide the services described herein. 2. PURPOSE: The City hereby engages Contractor for the purpose of providing (Yoga Instructor) instruction, as further detailed in the Scope of Work attached hereto as Exhibit "A" and incorporated herein by reference (the "Services"). Contractor shall complete the Services in a skillful and competent manner, in accordance with all applicable laws, rules and regulations, and in accordance with the terms of this Agreement. Contractor shall perform such other duties as are customarily performed by one holding such position in other same or similar businesses or enterprises as that engaged in by the City. 3. TERM: The term of this Agreement shall begin on (June 1, 2021) and shall expire on (July 30, 2023), unless earlier terminated as provided in this Agreement. 4. INDEPENDENT CONTRACTOR The Parties intend and agree that at all times during the performance of services pursuant to this Agreement, Contractor is and shall be acting as an independent contractor. Contractor understands and acknowledges that in entering into this Agreement Contractor is an Independent Contractor and not an employee of the City and is not eligible for any benefits of City employment. Contractor further understands and acknowledges that City does not maintain any Workers' Compensation, accident or any type of insurance coverage 55575.18185\3396Q72.1 1 Contractor's initials: for Independent Contractors. City shall not be liable for any payment or compensation in any form to Contractor other than as provided for herein. Other than the use of the facility, Instructor shall be responsible to use his or her own tools, supplies and equipment consistent with Section 6 herein and is responsible to determine the method and manner of instruction consistent with Section 2 herein. 5. EQUIPMENT AND LABOR: Contractor shall furnish all tools, equipment, apparatus, supplies, and materials ("Supplies and Equipment") required for performance of the Services, unless otherwise mutually agreed by the City. Contractor assumes all risk of loss, damage, or harm to the Supplies and Equipment arising in connection with the Services or this Agreement. 6. COLLECTION OF FEES: Fees shall be collected by the City through set registration procedures implemented by designated City staff ("Registration Fees"). Contractor is not authorized to collect Registration Fees on behalf of the City. However, in some instances, additional fees for supplies and/or materials necessary for the participation in and the completion of the class, program, camp, activity, etc. may be imposed by Contractor and are not considered Registration Fees and therefore will not be collected by the City. These fees will be collected by and paid directly to the Contractor/Instructor. 7. COMPENSATION: A. CITY agrees to pay INSTRUCTOR for the performance of Services on the following terms: 1. Flat fee $ 2. Hourly fee $ 3. Contingent fee $ per 4. Other 60% of fees collected B. All compensation shall be paid at the end of the each month, in accordance to the payroll schedule. C. INSTRUCTOR shall not be entitled to any additional compensation. 8. PAYMENT: The compensation provided in Paragraph 7 of this Agreement shall be paid upon satisfactory completion of the Services. The Department of Parks and Recreation will provide Contractor with a printed report from Activenet. Activenet report will state the number of people registered for the program and the amount of money collected. Contractor will approve record and the Finance Department will process for payment. 9. SUBCONTRACTORS: In the event Contractor will not be able to teach class due to illness or any other reason, Contractor shall implement the following procedure: a. Contractor shall procure a acceptable to the City t o 55575.18185\33964072.1 2 Contractor's initials: a substitute contractors must be approved by the Department of Parks and Recreation prior to providing services. b. All subcontracts shall contain a provision making them subject to all applicable terms and conditions of this Agreement. A copy of all subcontracts shall be provided to the City within fifteen (15) days of subcontract execution. c. Contractor shall notify assigned designated staff regarding the substitute's name, qualifications, address, and phone information. Payment of all subcontractors shall be the responsibility of Contractor. d. If a substitute cannot be procured, the class will be canceled and a make-up class added to the end of the session. Contractor shall be responsible for notifying the students of the cancellation. 10. SUPERVISION: Contractor shall establish appropriate rules for participation in the Services and shall assume responsibility for student discipline to ensure adequate protection of students and facility. Contractor agrees to work with assigned City staff to maintain accurate enrollment records. 11. F CA ILITY: The City shall be responsible for providing a suitable facility for the conduct of the Services (the "Facility"), unless otherwise noted under the "Special Arrangements" provision of this Agreement. Contractor shall pay the City for any and all costs associated with using the Facility. As part of the Services, Contractor shall be solely responsible for setting up the Facility for instruction and maintaining the Facility in a clean, safe, and orderly manner. Contractor shall be responsible for cleaning and/or restoring the Facility to its usual condition following each class session. City representatives shall at all times have access to the Facility, whenever Services are in progress, to monitor programs for quality. 12. CONDUCT: Contractor understands that the City is a public entity under the laws of the State of California, and that the City's purpose in engaging Contractor is to provide its residents with recreational activities in a manner that will foster a sense of community, security, fun, and fair play. Contractor agrees to conduct himself/herself in a manner that will further these goals. Contractor further acknowledges that failure to do so may result in immediate termination of this Agreement. 13. COORDINATION OF SCHEDULE: Contractor agrees to coordinate with the City specified time(s) and date(s) for the Services in order to avoid conflict of use. Dates and times shall be contingent upon Facility availability due to holidays and events. It is agreed that the resolution of any conflict is at the sole discretion of the City Manager or his/her designee. Coordination is for the sole purpose of coordinating City's sponsored event schedule and not to determine the method or means of performing the Contractor's services. 55575.1818"39W72.1 3 Contractor's initials: 14. PUBLICITY: Contractor shall not advertise, print, or publish any promotional materials in connection with the Services without the prior written approval of the City Manager or his/her authorized representative. The City reserves the right to broadcast, televise, and photograph the Services for the purpose of advertising. 15. By signing this Agreement, Contractor represents and acknowledges: a. That the information provided by the Contractor in the Contract Class/Program Proposal ("Proposal") and this Agreement is true and correct to the best of Contractor's knowledge. Contractor further understands and agrees that any material misrepresentation may result in the immediate cancellation of this Agreement without prior notice or right of appeal. b. That the City will fingerprint all prospective instructors and substitute instructors for the Recreation Department who may have supervisory or disciplinary authority over minors, pursuant to Public Resources Code section 5164, prior to the commencement of instruction. Contractor understands the City will submit the fingerprints to the Department of Justice to obtain summary criminal history information on all such prospective instructors, as authorized by California Penal Code section 1105.3. Contractor understands that, as authorized by California Public Resources Code section 5164, the City will refrain from hiring any prospective instructor whose criminal summary record shows a conviction for any offense specified by that section. c. Contractor understands that a -background investigation may be conducted in order to verify Contractor's responses in the Proposal and/or Agreement and to otherwise obtain information as to Contractor's character, reputation, personal characteristics, work habits, academic credentials, job performance, experience and/or criminal history from various private and public sources, along with other public records available. Contractor further understands that this investigation may involve an "investigative consumer report" that may include information as to Contractor's character, general reputation, or personal characteristics, obtained through personal interviews with neighbors, friends, associates and/or others who may have knowledge of such items of information. Contractor understands that Contractor has a right within a reasonable period of time to request a complete and accurate disclosure of the nature and scope of the investigative consumer report. Contractor recognizes, however, that such disclosure will not include the names of sources, the information obtained, nor a copy of the investigative consumer report. fib. HOLD HARMLESS AND INDEM_NtFICATION: Contractor shall defend, indemnify, and hold harmless the City, its officials, officers, agents, employees, and volunteers ("Indemnified Parties") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage, or injury in law or equity to property or persons, including wrongful death, in manner arising out of our incident to any alleged acts, omissions, or willful misconduct of Contractor, its employees, agents, consultants, contractors, and volunteers 55575.18185\33964072.1 4 Contractor's initials: arising out of or in connection with the performance of the Services or this Agreement, including without limitation the payment of all consequential damages and attorney's fees and other related costs and expenses. Contractor shall pay and satisfy any judgement, award, or decree that may be rendered against the Indemnified Parties, or any of them, in any such suit, action, or other legal proceeding. Contractor shall reimburse the Indemnified Parties for any and all legal expenses and costs incurred by any of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, in any, received by the Indemnified Parties. Such indemnification shall cover death or bodily injury to any person; injury to, loss, or theft of property, injury arising from the furnishing or use of any copyrighted or uncopyrighted composition, secret process, or patented or unpatented invention, or any other type of injury, whether such injury or damage occurs on or off City property. This provision shall survive any expiration or termination of this Agreement. a. Contractor fully releases, waives all claims against and discharges the City, its officials, officers, directors, employees, agents, contractors and volunteers ("Released Parties") from any and all claims, actions, debts and liabilities for damages which Contractor or any of its subcontractors or related parties ("Contractor Parties") now have or in the future may have against the Released Parties for any injuries, loss through theft, or damage to property suffered by the Contractor Parties by reason of performance of the Services, this Agreement, or by reason of the presence on City premises or in City facilities in conjunction with the performance of the Services. Contractor assumes full responsibility for any injuries, damages or losses that Contractor or the Contractor Parties may incur in performing this Agreement, regardless of any negligence on the part of the Released Parties. b. This waiver and release specifically constitutes a waiver of each and all of the provisions of California Civil Code section 1542. With respect to the matters released hereunder, Contractor waives any rights or benefits that he or she might otherwise have under California Civil Code section 1542, or any other similar law. California Civil Code section 1542 provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." c. Contractor has read and understands that the above waiver and release will prevent the Contractor or the Contractor's estate from recovering damages in the event of bodily injury, death, or damage to property. Nevertheless, Contractor executes this Agreement freely and voluntarily and agrees that it will be binding upon the Contractor and the Contractor's heirs, assigns, successors, and legal representatives. Contractor shall not allow any Contractor Parties to participate in 55575.181851339W72.1 5 Contractor's initials: the Services unless and until such Contractor Parties have executed a waiver and release containing the terms above. The above waiver and release shall survive any expiration or termination of this Agreement. 18. INSURANCE: The CITY reserves the right to require INSTRUCTOR to maintain insurance for the duration of this Agreement. Insurance requirements, if any, are attached as Exhibit "B" and incorporated herein by reference. INSTRUCTOR shall provide CITY with proof of insurance prior to the commencement of Services. 19. ASSUMPTION OF RISK: It is understood that Contractor and any subcontractor of Contractor are not covered by the City's Worker's Compensation Insurance and, therefore, perform the Services at their own risk. The City shall not be liable for any personal injuries incurred during the performance of the Services or this Agreement. Any substitute or subcontractor for Contractor shall not be a volunteer and shall not be considered an employee of Contractor. If Contractor has employees, Contractor shall be required to provide Worker's Compensation Insurance as required by the State of Califomia Employer's Liability Insurance. This provision shall survive any expiration or termination of this Agreement. 20. TUBERCULOSIS SCREENING: If the Services involve park, playground, recreational centers used for recreational purposes by the City, and if the Services will include being in contact with children, prior to commencing performance of the Services, Contractor shall provide to the City a certificate showing that within the last two years the Contractor has been examined and has been found to be free of communicable tuberculosis. 21. . Contractor shall comply with all federal, state, and local laws, statutes, rules and regulations in any manner affecting the performance of the Services or this Agreement. 22. Contractor agrees that he or she shall make every attempt to accommodate people with physical and/or mental disabilities. Contractor shall not discriminate on the basis of such disabilities_ 23. GOVERNING LAW: This Agreement shall be interpreted in accordance with the laws of the State of Califomia. Venue shall be in Riverside County, California. 24. ATTORNEY FEES: In the event of litigation between the Parties, the prevailing Party shall be entitled to recover all reasonable costs incurred, including reasonable attomey's fees, as determined by the court. 25. BUSINESS LICENSE: Contractor shall obtain and follow all business license requirements as outlined in City Municipal Code Chapter 3.40. All business license requirements must be met prior to approval of this Agreement. 55575.18185\33964072.1 6 Contractor's initials:—WL IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year last written below. CONTRACTOR ►► (Si nature and Date (Print or Type Contractor Name and Title) ,S- 73- 9 0-9 & Zy (Social Security or Tax ID Number) (City of Palm Springs Business License Number) 1331- E �. �,.,d o Clrcl.�. - W24P7- (Street Address, City, State, Zip Code) 77 &Pd- 333--7 a 5- 9 (Phone Number) CITY OF PALM SPRINGS By: (Signature of Facility Supervisor and Date) UD Of (City Facility Assignment and Phone Number) (S(_anature of Manager and �Zi�) 'Z I APPRO AS TO FORM J (Signatu f Director and Date) tity Attomey Date 2w Zt NOTE: This agreement is valid only for the facility assignment identified above. 55575.18185\33964072.1 8 Contractor's initials: 26. MODIFICATION: No amendment or modification of this Agreement is valid unless made in a writing signed by both Parties to this Agreement. 27. NON -ASSIGNMENT: Contractor shall not have any right to assign and/or transfer his or her rights and/or obligations under this Agreement without the prior written consent of the City. 28. DEFAULT: Failure to comply with any of the terms and/or conditions of this Agreement shall constitute default by the Contractor. 29. TERMINATION: This Agreement may be terminated for convenience by the City upon thirty (30) days written notice to Contractor. The City shall have the right to immediately terminate this Agreement for cause, without prior notice, and without penalty or liability on the part of the City. Termination for cause shall be made by written notice setting forth the effective date of termination. 30. NOTICE: Any notice required to be given pursuant to this Agreement may be personally served on the Parties or may be served by certified mail, return receipt request, to the Parties signing this Agreement, at the addresses specified on the signature page. 31. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties concerning the subject manner hereof and supersedes all agreements, representations, statements, promises, and understandings, whether oral or written, with respect to the subject matter hereof. 32. SEVERABILITY: In the event any terms or condition of this Agreement shall be held to be invalid and unenforceable by a court of competent jurisdiction, the other terms and conditions of this Agreement shall be valid and binding on the Parties hereto. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the other provisions unenforceable, invalid or illegal. Waiver by any Party of any portion of this Agreement shall not constitute a waiver of any other portion thereof. 33. SPECIAL ARRANGEMENTS: Special arrangements maybe further detailed in Exhibit "A". 34. NON-EXCLUSIVE AGREEMENT: Contractor is not in an exclusive Agreement with the City and is free to perform the same or similar services for others without restriction by the City. (Signatures on following page] 55575.181851339W72.1 7 Contractor's initials: EXHIBIT A SCOPE OF WORK [INSERT DESCRIPTION OF THE SERVICES] COMMUNITY INVOLVEMENT Contractor shall perform/participate in {21 City -sponsored special events during the term of this Agreement. A. CITY seeks to provide yoga instruction services. INSTRUCTOR shall perform all necessary and appropriate services consistent with Yoga_("Services"). Services are detailed in Exhibit 'A" attached hereto and incorporated herein by reference. B. Services shall be performed at the -Leisure Center and the Demuth Community Center ("Facilities'). C. INSTRUCTOR warrants that he/she is qualified to provide CITY with Services and holds all necessary certifications and licenses. D.INSTRUCTOR warrants that he/she will provide all necessary supplies, equipment, personnel, and other such necessities that enable him/her to perform the Services in a safe, competent, and professional manner E. INSTRUCTOR shall perform the Services in a manner consistent with industry standards and the expectations of a reasonable person. 55575.18185\339W72.1 9 Contractor's initials: