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HomeMy WebLinkAboutHERNANDEZ, JOELCity of Santa Ana Clerk of the Council coTc -- ._... AGREEMENT TERMINATION FORM Please complete this form in its entirety when the attached agreement and all I amendments (if any) are no longer in effect.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. =1,' The agreement with , O 1 Memonaez Na N-2019-092 was completed on 06130 h02Q and final payment has been made. (List all amendments. Use space below if needed.) Department: MCSA Phone/Ext.: n1q Signature: t--C�. Date: 1\ 10 ► 12021 _ Revised: 10-18-16 IP SU LANCE ON FILE WORK MAY PROCEED UN'fl . l ."DRANCE EXPIHE8 CLER4F Q NCII 'rE:MAY p 9 2019 RECREATION SERVICES AGREEMENT N-2019-092 lW kk 0-NO 0'7 THIS AGREEMENT is made and entered into on this 9th day April, 2019 by and between Joel Hernandez ("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 ("City"). RECITALS A. The City desires to retain a recreation service provider having special skills, resources and knowledge to provide Piano & Guitar classes in its recreation class program. B. Provider represents that he 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: I. SCOPE OF SERVICES Provider shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION In consideration for the provision of 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 $25,000.00 annually. Payment to Provider shall be made monthly within thirty (30) days following completion of the last class taught by Provider the prior 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 commence on July 1, 2019 and end on June 30, 2020 unless terminated earlier in accordance with Section 12 below. The term of this Agreement may be extended by a waiting executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Provider shall, during the entire tern 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 prograrns maintained by the City; and (c) contain standard separation of insured's provisions. b. Worker's Compensation Insurance. In accordance with California State law, 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. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be fumished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Consultant shall supply City with a fully executed additional insured endorsement. 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 2 and is in force and paid for, the City shall have the tight, at the City's election, to terminate this Agreement. Such tenmination 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 indemnity the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Provider agrees to and shall indemnify, defend and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) forpersonal 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 negligent 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; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement, to the extent that the injury, damages, just compensation, restitution, judicial or equitable relief is caused by the negligence of the Provider. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or 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. In no case will Provider be required to indemnify or hold harmless the City from injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligence of the City. 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. FINGERPRINTS AND BACKGROUND CHECK Provider, and any employees, subcontractors or substitutes, shall arrange for and submit their fingerprints for a criminal background check through the Department of Justice through the City's Human Resources Department process. Consultant shall be responsible for all charges associated with fingerprinting. Consultant shall not perform any services pursuant to this Agreement until clearance is received and Consultant is notified by the City's Parks, Recreation and Community Services Department. 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 20 Civic Center Plaza ('M-23) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 571-4211 To Provider: Joel Hernandez 650 N. Lacy Street, #240 Santa Ana CA, 92701 Phone: 714-395-0266 Email: dosis oc Lcyahoo.corn 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. 4 11. ASSIGNMENUSUBSTITUTES 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 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 1 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 (1.0%) 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. NON-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 or any services provided under this Agreement. 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 laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. 17. SEVERABILITY 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 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. CITY OF SANTA ANA Norma Mitre KRISTINE RIDGE Acting Clerk of the Council CITY MANAGER [Signatures continue on the next page] APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Sawtz k �oyuw Laura Rossini Senior Assistant City Attorney RECOMMENDED FqB-,kPPROVAL: PROVIDER: J elel l�e� Director of Parks, and Community Services Agency Exhibit A SCOPE OF SERVICES A. Provider shall conduct Dosis Piano & Guitar classes for ages 6 and up. 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 schedule 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. DOSIS PIANO AND GUITAR Dosis class emphasizes note reading, how to position your hands and how to play basic songs. Students must provide own guitar. Keyboards are provided. INSTRUCTOR: Joel Hernandez LOCATION: Garfield Community Center, 501 N. Lacy St., Santa Ana, (714) 571-4288 • Dosis Guitar & Piano classes will consist of monthly sessions, held i day per week, i % hours per day C. Provider shall provide all materials, supplies, equipment, records and personnel. Provider shall be responsible for clean-up of the facilities and materials mid shall ensure the safety and effectiveness of instruction. CLASS SIZE A. Each class must have a minimum of 3 paid students and no more than 15 students B. No registration will be accepted after the second meeting of classes. C. If the minimum registration has not been reached by the second class, the class shall be canceled. Provider will be under no obligation to provide services 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, Provider may not waive class participation/registration fees. C. Only registered participants may participate in class. D. Any refunds to participants will be made in accordance with City policy. E. Any materials fee shall be established by mutual agreement of City and Provider and shall be payable directly to Provider. 9 EVANSTON INSURANCE COMPANY CERTIFICATE NO.: 2019-28 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: Joel Hernandez TYPE: Various Instructional Classes 650 N Lacy St. Apt 240 DATE(S): 02/15/2019-12/31/2019 Santa Ana, CA 92701 LOCATION: Garfield Community Center & El Salvador Community Center *Liquor Liability Yes ❑ No "Liquor Liability after 12 am ends before 2 am ❑ 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: SEP41028 MASTER POLICY DATES: EFFECTIVE: JANUARY 1, 2019 EXPIRATION: JANUARY 1, 2020 COMMERCIAL GENERAL LIABILITY OCCURRENCE FORM DEDUCTIBLE: NONE General Aggregate Limit $2,000,000 Products & Completed Operations 1,000,000 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 Of Insurance: Medical Payments (Any One Person) 5,000 MEGL643 Liquor Liability (If purchased) 1,000,000 Optional Limits Purchased ❑ $1,000,000/$3,000,000 ❑ $2,000,000/$2,000,000 Damage To Property (If purchased) The limit's of insurance apply separately to each event insured by this policy as if a separate policy of insurance has been issued for that event. OTHER ADDITIONAL INSUREDS CANCELLATION. Should the above described policy be cancelled before the expiration date thereof, notice will be delivp5gcy.id'a eprd h policy provisions. ze a AUTHORIZED REPRESENTATIVE: DATE ISSUED: WORKERS' COMPENSATION DECLARATION I Joel Hernandez hereby affirm under penalty ofpetjury, the (Nai; t(e) following declaration I certify on behalf of Joel Hernandez that during the term of my (Consu(tant/Compiny Name) contract for Recreation Classes set -vices 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 Seetion 3700 of the Labor Code, I shall forthwith comply with those provisions and provide proof of workers' compensation coverage. DATE: By: o Name: Joel Hernandez Title: Recreation Instructor Telephone: �[_111 — �� 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. �J0