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HomeMy WebLinkAboutTE-KENJUTSU-KAN KARATE-DO (2)INSURANCE ON FILE N-2020-171 WORK MAY PROCEED UNTIL INSURANCE EXPIRES g/2y/Zo21 CLERK OF COUNCIL DATE: RECREATION SERVICES AGREEMENT f THIS AGREEMENT is made and entered into on this 5th day of October, 2020 by and l• between Te-Kenjutsu-Kan Karate -Do ("Provider") a California corporation, a charter city and Municipal Corporation organized and existing under the Constitution and laws of the State of California ("City"). City and Provider are also referred to as "the Parties." RECITALS o A. The City desires to retain a recreation service provider having special skills, resources and ~ knowledge to provide karate classes in the park in its recreation class program. N N 15 B. Provider represents that it is able and willing to provide such services to the City. C) 0 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. D. The Parties acknowledge that the City intends to operate a pilot program for conducting certain recreational classes in City parks in an effort to provide recreational activities to the public but balance the need to comply with all COVID-19 guidance and restrictions, including but not limited to social distancing and wearing masks. Provider has requested to participate in this pilot program. 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 A. Provider shall perform those services as set forth in Exhibit A to this Agreement. B. Provider acknowledges that currently the State, County and City are operating under emergency declarations due to COVID-19. As a result, there are restrictions in place effecting the ability to offer recreation classes and/or have persons attend classes pursuant to orders from the Orange County Health Officer, the California Public Health Officer, and guidance from the Centers for Disease Control ("CDC"), California Department of Public Health ("CDPH"), the Orange County Health Care Agency ("OCHCA") and the City itself. C. All classes operated pursuant to the City's pilot program for conducting outside recreation classes at City Parks will comply with all applicable guidance and public health orders, including those from the CDC, CDPH, OCHCA, and the City for as long as those orders and guidance remain in place. Provider will remind participants of these guidelines. To the extent that Provider needs assistance with enforcing any rules or requirements, Provider will contact a City Parks' employee or City security. D. All participants in the classes will have their temperature taken and will be expected to maintain six (6) feet distance from other participants at all times, wear a mask, and practice appropriate handwashing and sanitizing. E. Provider shall not attend a class or teach any class if Provider is sick or has any symptom(s) associated with COVID-19 including but not limited to, fever above 100.4, chills, cough, shortness of breath loss of taste or smell, nausea, muscle or body aches, vomiting, headache, sore throat or diarrhea. F. Provider will not attend class or teach a class if Provider or any member of Provider's household has been asked to quarantine or self -isolate due to symptoms of COVID-19 or a positive test result for COVID-19. G. Provider agrees to have Provider's temperature taken prior to every class, maintain appropriate social distance, and where a mask or face shield. H. Provider acknowledges that, to the extent that City is able to and chooses to conduct classes indoors, this Agreement will also cover classes conducted at one of City's recreational centers during the tern of 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. 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. UNMENWIi0l This Agreement shall commence on October 10, 2020 and end on October 9, 2021 unless terminated earlier in accordance with Section 13 below. The term of this Agreement may be 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 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 (e) 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 furnished 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 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 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 indemnify, defend and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) 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, employees, or other persons acting on their behalf which relates to the services described in section 1 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. 7. COVID-19 ASSUMPTION OF RISK AND WAIVER Provider acknowledges that Provider could be exposed to persons that may have COVID- 19 providing services pursuant to this Agreement. Provider understands that interacting with any person currently comes with the inherent risk of exposure to COVID-19 and that COVID-19 is highly contagious. Provider assumes the risks associated with providing services pursuant to this Agreement, namely potential exposure to COVID-19. Provider acknowledges that while some people have no symptoms or mild symptoms from COVID-19, some people have become seriously ill requiring hospitalization and that some people have died from COVID-19. Provider acknowledges that persons over the age of 65 and persons with underlying health conditions are at greater risk of contracting COVID-19 and are potentially risking serious injury or death. Provider is agreeing to provide classes pursuant to this Agreement and does so of Provider's own free will. Provider intends to be legally bound by this assumption of risk, release and waiver and to bind Provider's heirs, personal representatives, next of kin and anyone who may make a claim on Provider's behalf. Provider knowingly releases and waives any and all claims that Provider may have or could have in the future and includes any claims resulting from potential exposure or actual exposure to COVID-19, this includes claims for personal injury, transmittal of COVID-19 to others, and/or wrongful death. Provider agrees to hold harmless, defend and indemnify the City, its public officials, officers, employees, volunteers, and agents from any and all claims for liability or damages, including those for exposure to or diagnosis with COVID-19 as a result of providing services pursuant to this Agreement. 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. 11. 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. hi 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. 12. 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. 13. TERMINATION a. This Agreement may be terminated by the City immediately pursuant to any federal, state, county or local health order related to or regarding COVID-19 making it impossible to hold classes. For any other reason, this Agreement may be terminated by 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 I.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. 14. 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. 15. NON-DISCRIMINATION Provider shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, 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. 16. 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. 17. LICENSES Provider shall, throughout the terns 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. 18. 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. 19. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 20. 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. 7 N-2020-171 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: 015Z Y Dais Gomez ' s Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By'.drzuno. A R Laura A. Rossini Acting Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: r� Rudloff Executive Director of Parks, Recreation and Community Services Agency CITY OF SANTA ANA Krrst e Ridge City Manager PROVIDER: 7 a. Pete Mangosing Te-Kenjutsu-Kan Karate -Do Exhibit A SCOPE OF SERVICES A. Provider shall conduct Te-Kenjutsu-Kan Karate DO for children at locations determined by the City for ages 7 & up 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. Instructor: Pete Mangosing Location: Roosevelt/Walker Center • TKI{ Karate DO will consist of 1% hour, per day, 1 per week, ages 7 & up. (Roosevelt/Walker Center -Outdoors) CLASS SIZE 1) Each class must have a minimum of 1 paid student and no more than a maximum of 8. 2) No registration will be accepted after the second meeting of class. 3) 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 Consultant compensation CLASS FEES 1) Each participant shall pay class registration fee as established by City. 2) Provider may not waive class participation/registration fees and shall not collect any registration fees. Provider will refer participants to the City's online registration program. 3) Only registered participants may participate in class. 4) Any refunds to participants will be made in accordance with City policy. 5) Any material fee shall be established by mutual agreement of City and Provider and shall be payable directly to Provider. a] DATE aco d CERTIFICATE OF LIABILITY INSURANCE PRODUCER Maguire Insurance Agenry, Inc. MI 1 Bala PI2 Ste 100 Bala Cynwyd, PA 19DM-1401 610.612.T9D0 INSURED peter mangosing 118 w. Steve. ay Santa ana, CA 92707- COVERAGES THIS CERTIFICATION IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURER INSURER D: 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 CERIFICATION 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD-L INSRD TYPE OF INSURANCE POLICYNUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICYEXPIRATION DATEIMM/OD/YYYVI EMITS A X GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMSMADE ❑X OCCUR X PROFESSIONAL LIABILITY GENT AGGREGATE LIM O APPLIES PER: X POLICY F7 PROJECT lOC PHPK154150"M 08124120M 08/24/2021 EACH OCCURENCE $1,000,000 PREMISES Ezocaurrence $100,W0 MEDEXP(Anyanepermm) $2Suo PERSONAL &REV INJURY $1,000,000 GENERAL AGGREGATE $3,000,000 PRODUCTS—COMP/OPAGG $3,000,000 AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED ADIOS HIREDAUT05 NON -OWNED AUTOS COMBINED SINGLE LIMIT (EAacddent) BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERIYDAMAGE (Peraccldent) GARAGE LIABILITY ANYAUTO AUTO ONLY —EA ACCIDENT OTHER THAN CA ACC AUTO ONLY: AGE EXCESS / UMBRELLA LIABILITY OCCUR CLAIMS MADE DEDUCTIBLE RETENTION EAQ{ OCCURENCE AGGREGATE EMPLOYERS' LIABILITY V ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandate, In NHI Ifyes,descfibeunder SPECIAL PROVISIONS below IH TORY LIMITS ER E.L. EACH ACCIDENT E.L. DISEASE —EA AMPLOYEE E.L. DISEASE —POLICY LIMO EITHER DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES / EXCLUSIONS ADDED BYENDORSfMENT /SPECIAL PROVISIONS II is understood and agreed Nat the following entity is added as an additional iemred but only with respects) to the ope,aeons Of the named Insured eecept that IiabllRy resulting from the additional imured'e sole negligence. CERTIFICATE HOLDER CANCELLATION City of Santa Ana 20 CiVic Center Fir Santa Ana, CA 92701- THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO 00 50 SHALL IMPOSE NO OBLIGATION OR ACORD 25 (2009/01) © 1988-2009 ACORD CORPORATION The ACORD name and logo are registered marks of ACORD Ri �e ManPgenYmLDirtisian REVIEWED & APPROVED Br T[IDL.u-gY./K F1f..hFiNe2 Tom. VeLW1:Y; �' R¢X Managemen[Analyst IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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). DISCLAIMER This Certificate of Insurance does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25(2009/01) RidsMuagemag DMsian RREV1E & APPPR veo By. c �. RBk Management Mzly;[ Peter Mangosing— Hmishi 118 W. Stevens Av. Smlta Ana, CA. 92707 Cell: (714)745-7801 tkkseilsci@le-kenjtitstt-1,m.com le-kenjtitstt-1,m.com City of Santa Ana Risk Management Division 20 Civic Center Plaza, Santa Ana, CA 92702 TE-KENIUTSU-KAN KARATE -DO FEW 1FAMEMQ:FFFIYCAE:i I7 A 5010 Non -Profit Orgmlintion Re: Professional Liability and Auto hrsurance Requirement and Release of Liability. Dear City of Santa Ana Risk Management Division: I, Peter Mangosing, of the Te-Kenjutsu-Kan Karate -Do Organization hereby release the City of Automobile Liability. I do not use/drive any vehicle during the course and scope of my agreement with the City. Additionally, I am not a licensed professional and will not employ a licensed professional during the course of my contract. During the term 08/16/2020 through 12/16/2020, for Martial Arts classes performed at the Roosevelt/ Walker Community Center, Santa Ana, CA. Sincerely, Peter Mangosing, Hanshi Chief Instructor Cell: (714) 745-7801 www.te-kenjutsu-kan.com wok Mvwgen eneDiWion & APPR1O}V'm BY: ' NRRwEWED F4M"" Z va&aAl �'. R6klvlanagement Matyst I, CITY OF SANTA ANA RISK MANAGEMENT. dLt,wa , 4 HUMAN RESOURCES Managing Risk ,rwougn Positive Change WORKERS' COMPENSATION DECLARATION PETER MANGOSING (Namelritle) following declaration: hereby affirm under penalty of perjury, the I certify on behalf of TE-KENJUTSU-KAN KARATE -DO that during the term (Consultant/Company Name) of my contract for MARTIAL ARTS services with the City of Santa Ana, (Type of service provided) 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 the provisions and provide proof of workers' compensation coverage immediately. Date: 09/01 /20 Print Name: PETER MANGOSING Print Title: CHIEF INSTRUCTOR Signature: Telephone: 714-74 -7801 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. l: JRisk Mgmt1insurance Requirements�WC Declaration 08152019 RiskMmgemmlDmelon +' ReoA &APPRO BY. 49�qwm_, Risk Management Malysl