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HomeMy WebLinkAboutNGUYEN, TAN; DBA: WEST GROVE VOLLEYBALLCity of Santa Ana Clerk of the Council 4 , /'/� coTc office use Only 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TERMINATION FORM Please complete this form in its entirety when the attached agreement and all amendments (if any) are no longer in effect.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 - / OLE ICOF THE 0110JUNi'$L AUG 9'22 PM4:29 Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with No. N-2019-171 was completed on �P U and final payment has been made. (List all amendments. Use space below if needed.) Department: Pg� Phone/Ext.: Signature: Date: Revised: 10-18-16 INSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL ® DATE: SEP 12 2019 p 1. 3VSA(NI RECREATION SERVICES AGREEMENT N-2019-171 S wtx C-n'-u" THIS AGREEMENT is made and entered into on this 21st day August, 2019 by and between Tan Nguyen dba West Grove Volleyball, LLC, a California Limited Liability Company ("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 volleyball classes in its recreation class program. B. Provider represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement. Provider represents that she is knowledgeable in their 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: 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 S25,000.00 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 September I, 2019 and end on June 30, 2020 unless terminated earlier in accordance with Section 12 below. The term of this Agreement may he extended by a writing executed by the City Manager 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 #7097v2 construed to create an employer-employce relationship, ajoint 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, employees 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, S. INSUkkNCE Prior to undertaking performance of work under this Agreement Provider shall maintain and shall rLquirc 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 iRiury, including death resulting therefrom and dare -age 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 tile 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 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. WorkeCs, Compensation Insurance, In accordance with California State law, Provider, if Provider has any employee-i-, 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. 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 furnished to the City upon execution of this Agreement and shall be approved by the City. HL Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in my 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. 47097v2 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 terminate this Agreement. Such termination shall not alIect Prol, ider's tight to be paid for its time and materials expended prior to notification of tentrination. Provider waives the right to receive compensation and agrecs to indemnify the City for any work Performed prior to approval of insurance by the City, 6. INDEMNIFICATION Provider agrees to and shall indertmify, defend and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: ( I ) 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 negligent operations of the Provider or its contractors, Subcontractors, agents, employee-, 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,0 n just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising front this Agreement, to the extent that the injury, damages, just compensatio n, 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 etTQcts, 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 reliteaused by the neglige nce of the City, 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 service-, specified unde this Aereement- 8. FINGERPRINTS AND BACKGROUND CIIECK Provider, and any employees, subcontractors or substitutes, shall arrange for and submit their fingerprints lbr a criminal background check through the Department of Justice through the City',.; Human Resources Department process. Consultant shall be responsible for all charges associated with fingerprinting. Consultant, its employees and subcontracts rs. 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 wrifin- and shall be deemed to be properly given if delivered in person or mailed by 1,17097v2 first class or certified mail, postage pre paid, 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 Citv of Santa Ana 20 Civic Center Plaza (M-30) P,Ci. Box 1988 Santa Ana. CA 92702-1988 Fax (714) L*=I"%-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 1989 Santa Ana, California 92702 Fax (714) 571-421 1 'To Provider: 'Ian ;Nguyen dba West Grove Volleyball„ LLC. 8311 Augusta Dr. Anaheim, CA. 92804 Phone: 657-21 h-0305 Email: vacstgrc,ahrri;snl�a=P_c+tT1 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 maih 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 thcsimile machine, addressed as set forth above:. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shalt be excluded. TO. 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 term-, of this Agreement and any+ attachments hereto, the terms of this Agreement shalt prevail. This Agreement ay 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 rather 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 Agrec>7mcm ackns.avv ledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone actingon behattoiany party, which is not embodied herein. "7097v2 It. ASS IGNMENT/SUBSTITUTES a. Assignment. The experience, knowlailge, capability and reputation of Provider were a substantial inducement for City to enter into this Agrearnent. Therefore, llrovidcr may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assiprnern, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. b. Substitutes, In the event Provider is notable to teach a class due it) illness or some other cause beyond Provider's reasonable control. Provider must procure. at its sole expense, a qu -at i fled substitute instructor to teach the class at its regular time and place. Provider shall ensure that substitute instructors are at least twenty-onc(2l) years irfa Viand comply with theCity'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 noticy, participants as soon as possible of any class cancellation and make-up class. Provider must personally teach at least seventy -live percent (75%) of its offiared 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 ofterantralion. b.'Fermination 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 term ination/cancel lation. 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 run (10%) Percent of the final payment to Pnivider. 11 RECORDS Provider shall use attendance sheets generated and suppliLd, by the City to record attendance in cacti 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 f3l 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 dc&ud and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination 47097v2 or other employment related activities or any services provided under this AgrecmenL provider affirms that it is an equal opportunity employer and shall comply with all applicable tederal, slate and local fovs and regulations, 15. JURISDICTION —VENUE This Agrcemem 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 he the vanue 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 Statelof California. the City of Santa Ana and all other governmental agcncics. 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 or a court of competent jurisdiction, such invalidity or unen fbrceabi lity shall not affect any of the remaining phrases, sentence-,, clauses, paraglaphs 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 bercto shall be incorporated as if fully set forth in the body of this Agreemcm 19, AUTHORITY The persory s) executing this Agrec-trams on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and: that by w ex cooling this Agreement, the parties hereto are formally bound to the provisions of this AgreeilleM I [Signatures on next page] #7097v2 O IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. xaml®r'e;�- �� _ Daisy Gomez Clerk of the C ouncil APPROVED AS TO FORM: SOMA R. CARVALHO City Attorney By - Laura Rossini Senior Assistant City Attorney CITY OF SANTA ANA Kristine Ridge City Manager RECOMMENDED FO"OVAL: , PROVIDER: Director of Parks, i and Community Services Agency Tan Nguyen dba West Grove Volleyball, LLC Signature Page— Tan Nguyen dba West Grove Volleyball, LLC. (Recreation Services Agreement) #7097v2 Exhibit A SCOPE OF SERVICES A. Provider shall conduct West Grove Volleyball classes for ages 8 - 14 yrs, old. B. Provider shall reach such or similar classes (I ) at the times below at facilities to be designated by the City or (2) on a schedule agreed upon by tire 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'-,,, needs. West Grove Volleyball Participants will team fundamental volleyball skills such as passing, hitting, serving, and setting through hands-on instruction and games. Vollevitall classes that will consist of monthly sessions, held I day per week, I hour per class, per day. INSTRUCTOR: Tan Nguyen LOCATION: Jerome Community Center, 726 S Center St., Santa Ana, (714) 647-6556 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. Each class most have a minimum of 4 paid students and no more than 16 st dents B. No registration will be occupied after the second meeting of classes. C. If the mimmurn registration has not been reached by the second class, the class shall be canceled. Provider will he under net obligation to provide services tor the cancelled classes, and the City will have no further obligation, 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 fee-. 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 agmenwin of City and Provider and shall be payable directly to Provider, #7097v2