HomeMy WebLinkAboutPHAM-LE, DIANEINSURANCE ON FILE
WORK MAY PROCEED M-2024-073
UNTIL INS RANGE EXPIRES
G
CITY CLERK
DATE:
AGREEMENT WITH DIANE PHAM-LE
TO PROVIDE YOGA INSTRUCTION
THIS AGREEMENT is made and entered into on this 29th day of January, 2024 by and between
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Diane Pham-Le, ("Instructor"), and the C ity of Santa Ana, a charter city and municipal corporation
organized and existing under the Constitution and laws of the State of California ("City").
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RECITALS
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A. The City desires to retain an instructor having special skill and knowledge to provide yoga
instruction to employees of the City of Santa Ana.
B. Instructor represents that she is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Instructor represents that it is
knowledgeable in its field and that any services performed by Instructor under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
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. Instructor shall provide weekly recurring Yoga fitness/instruction classes to
employees of the City of Santa Ana.
b. The City shall maintain and publicize a schedule showing the starting time and
ending time of classes as agreed between the City and Instructor. Instructor agrees
to start and end each class according to that schedule. Instructor shall be present for
10 minutes prior to the start of each class and up to 10 minutes after the end of each
class.
C. Instructor must maintain attendance records and correspondence related to the
classes he/she teaches in accordance with the instructions from the City.
d. The nature of the services provided by Instructor requires that they be performed
on the City premises. The City agrees to furnish space and equipment as provided
under the terms of this Agreement. Instructor is responsible for using and leaving
the space in which he/she teaches in a manner similar to how the space was
originally provided by the City,
e. Schedule and location of services is subject to revision upon the written mutual
consent of the Parties.
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2. COMPENSATION
a. City agrees to pay, and Instructor agrees to accept as total payment for its services for
City at the billing rate of $100 per teaching session/class, as detailed in Section I .b.,
above. The total amount to be expended during the term of this Agreement shall not
exceed $50,000.
b. The Instructor's billing rate for each teaching/session class is subject to revision after
the first full year of instructions, per the terms of this Agreement, is complete. Revision
to the billing rate in Section 2.a. is subject to the written mutual consent of the Parties.
Instructor understands that any increase to the billing rate will not raise the not -to -
exceed compensation amount. Any increase to the total compensation amount to this
Agreement is subject to approval by the City Council of the City of Santa Ana.
c. Payment by City shall be made within forty-five (45) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. City and
Instructor agree that all payments due and owing under this Agreement shall be made
through Automated Clearing House (ACH) transfers. Instructor agrees to execute the
City's standard ACH Vendor Payment Authorization and provide required
documentation. Upon verification of the data provided, the City will be authorized to
deposit payments directly into Instructor's account(s) with financial institutions.
Payment need not be made for work which fails to meet the standards of performance
set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above for a five (5) year term,
unless terminated earlier in accordance with Section 15, below.
4. INDEPENDENT CONTRACTOR
Instructor shall, during the entire term of this Agreement, be construed to be an independent
Instructor 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 professional manner in which Instructor performs
the services which are the subject matter of this Agreement; however, the services to be provided
by Instructor shall be provided in a manner consistent with all applicable standards and regulations
governing such services. Instructor 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.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or works of
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authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or
caused to be prepared by Instructor under this Agreement ("Documents & Data"). Instructor shall
require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual
license for any Documents & Data the subcontractor prepares under this Agreement. Instructor
represents and warrants that Instructor has the legal right to license any and all Documents & Data.
Instructor makes no such representation and warranty in regard to Documents & Data which were
provided to Instructor by the City. City shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
6. INSURANCE
hnstructor shall procure and maintain for the duration of the contract insurance against
claims for injuries to persons or damages to property which may arise from or in connection with
theperformance of the work hereunder and the results of that work by the Instructor, his agents,
representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01
covering CGL on an `occurrence" basis, including property damage, bodily injury and
personal & advertising injury with limits no less than $1,000,000 per occurrence. If a
general aggregate limit applies, either the general aggregate limit shall apply separatelyto
this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall betwice
the required occurrence limit.
2. Workers' Compensation insurance as required by the State of California, with Statutory
Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per
accident for bodily injury or disease. (Note —required only iflnstructor has employees).
If the Instructor maintains broader coverage and/or higher limits than the minimums shown above,
the City requires and shall be entitled to the broader coverage and/or the higher limitsmaintained
by the Instructor. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
Self -Insured Retentions
Self -insured retentions must be declared to and approved by the City. The City may requirethe
Instructor to provide proof of ability to pay losses and related investigations, claim administration,
and defense expenses within the retention. The policy language shall provide,or be endorsed to
provide, that the self -insured retention may be satisfied by either the namedinsured or City.
Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, agents, and volunteers are to be covered as
additional insureds with respect to liability arising out of work or operations performed
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by or on behalf of the Instructor including materials, parts or equipment furnished in
connection with such work or operations.
2. For any claims related to this contract, the Instructor's insurance coverage shall be
primary insurance coverage at least as broad as ISO CG 20 0104 13 as respects the City,
its officers, officials, employees, agents, and volunteers.
3. The Insurance Company agrees to waive all rights of subrogation against the City,its
elected or appointed officers, officials, agents, and employees for losses paid underthe
terms of any policy which arise from work performed by the Instructor for the City. This
provision also applies to the Instructor's Workers' Compensation policy.
4. Each insurance policy required above shall provide that coverage shall not be canceled,
except with notice to the City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the City.
Verification of Coverage
Instructor shall furnish the City with original Certificates of Insurance including all required
amendatory endorsements (or copies of the applicable policy language effecting coverage required
by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all
policy endorsements to City before work begins. The City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements affecting the coverage
required by these specifications, at any time.
Special Events Coverage for Instructors
Special events coverage is available for an additional fee to provide the liability insurance required
by this agreement. Instructor can obtain additional information and cost from the City.
Special or Low Risk Activities
City reserves the right to modify these requirements, including limits, based on the nature ofthe
risk, prior experience, insurer, coverage, or other special circumstances. The City reserves the right
to modify or waive insurance requirements for certain low risk recreational activities.
7. INIDEMNIFICATION
Instructor agrees to defend, and shall indemnify and hold harmless the City, its officers,
agents, employees, contractors, 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 Instructor, its subcontractors, agents, employees, or other persons
acting on its 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 terns of or effects arising from this Agreement. 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. The Instructor
further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including
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fees and costs for special counsel to be selected by the City, regarding any action by a third party
challenging the validity of this Agreement, or asserting that personal injury, damages, just
compensation, restitution, judicial or equitable relief due to personal or property rights arises 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. Notwithstanding the foregoing,
to the extent Instructor's services are subject to Civil Code Section 2782.8, the above indemnity
shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Instructor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Instructor shall defend and indemnify the City, its officers, agents, representatives, and
employees against any and all liability, including costs, for infringement of any United States'
letters patent, trademark, or copyright infringement, including costs, contained in the work product
or documents provided by Instructor to the City pursuant to this Agreement.
9. RECORDS
Instructor shall keep records and invoices in connection with the work to be performed
under this Agreement. Instructor shall maintain complete and accurate records with respect to the
costs incurred under this Agreement and any services, expenditures, and disbursements charged to
the City for a minimum period of three (3) years, or for any longer period required by law, from
the date of final payment to Instructor under this Agreement. All such records and invoices shall
be clearly identifiable. Instructor shall allow a representative of the City to examine, audit, and
make transcripts or copies of such records and any other documents created pursuant to this
Agreement during regular business hours. Instructor shall allow inspection of all work, data,
documents, proceedings, and activities related to this Agreement for a period of three (3) years
from the date of final payment to Instructor under this Agreement.
10. CONFIDENTIALITY
If Instructor receives from the City information which due to the nature of such information
is reasonably understood to be confidential and/or proprietary, Instructor agrees that it shall not
use or disclose such information except in the performance of this Agreement, and further agrees
to exercise the same degree of care it uses to protect its own information of like importance, but in
no event less than reasonable care. "Confidential Information" shall include all nonpublic
information. Confidential information includes not only written information, but also information
transferred orally, visually, electronically, or by other means. Confidential information disclosed
to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The
foregoing obligations of rion-use and nondisclosure shall not apply to any information that (a) has
been disclosed in publicly available sources; (b) is, through no fault of the Instructor disclosed in
a publicly available source; (c) is in rightful possession of the Instructor without an obligation of
confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently
developed by the Instructor without reference to information disclosed by the City.
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11. CONFLICT OF INTEREST CLAUSE
Instructor 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.
12. NON-DISCRIMINATION
Instructor 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. Instructor affirms that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Instructor, 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 Instructor. 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 Instructor 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.
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Instructor,
Instructor 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. Nothing in this Agreement shall
be construed to limit the City's ability to have any of the services which are the subject to this
Agreement performed by City personnel or by other Instructors retained by City.
15. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Instructor shall be entitled to receive and the City shall pay Instructor
compensation for all services performed by Instructor prior to receipt of such notice of termination,
subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Instructor to
deliver to the City all work product(s) completed as of such date, and in such case
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With courtesy copies to:
Executive Director,
Human Resources Agency
City of Santa Ana
20 Civic Center Plaza (M-24)
P.O. Box 1988
Santa Ana, California 92702
To Instructor:
Diane Pham-Le
3718 S. Alder St.
Santa Ana CA 92707
Email: dianel192@gmail.com
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.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and
attomey's fees, for any injuries or damages to City in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement.
[signature page to follow]
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N-2024-073
SIGNATURE PAGE FOR AGREEMENT WITH DIANE PHAM-LE
TO PROVIDE YOGA INSTRUCTION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
BrarW65Salvatien•a
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
Human Resources Agency
CITY OF SANTA ANA
AomasR. Ha ch
Interim City Manager
INSTRUCTOR:
_—
Dianc PI -Le
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Lynch, Breanna
From: City of Santa Ana <certificate-request@ctraxjdidata.com>
Sent: Wednesday, February 21, 2024 3:33 PM
To: dianel192@gmaii.com; Lynch, Breanna
Subject: Internal Notice of Compliance
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PACE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor Diane Pham-Le
Name:
Project TBD (137)
Number:
Project AGREEMENT WITH DIANE PHAM-LE TO PROVIDE YOGA INSTRUCTION
Name:
The Certificate of Insurance (COI) submitted indicates that the coverages comply with the
insurance requirements.
The compliant coverage(s) are:
TYPE OF INSURANCE POLICY EXPIRATION COI DATE FILE NAME
NUMBER DATE
Certificate
GENERAL LIABILITY PLP006602602 09/22/2024 09/22/2023 Insurance -- city
of SA.pdf
WORKERS COMPENSATION EXEMPTION WAIVER 01/19/2025 01/19/2024 AFFIDAVIT.pdf
No further action is required at this time.
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team
2/21 /2024 6:33 PM
1
,aco CERTIFICATE OF LIABILITY INSURANCEFo9/20/2024
MIDDIYYYY)
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. 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).
PRODUCER CONTACT
NAME: Alternative Balance LLC
NEXO Insurance a/co"N EXt: 1-800-871-3848 ac No:
111 N. Sepulveda Blvd., Suite 325 ADDRESS: contact@alternativebalance.com
Manhattan Beach, CA 90266 INSURER(S)AFFORDING COVERAGE NAIC#
INSURERA: Lio Specialty Insurance Company 17346
INSURED INSURER B:
Diane Pham-Le
INSURER C
INSURER D:
3718 S.Alder St. INSURER E:
Santa Ana,CA 92707 INSURER F:
COVERAGES CERTIFICATE NUMBER: WIN 3000000001-01-AL190507 REVISION NUMBER:
THIS IS TO CERTIFY THAT 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
CERTIFICATE 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.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS
LTR IN SR WVD POLICY NUMBER MM/DD/YYYY MM/DD/YYYY
EACH OCCURRENCE $ 2,000,000
X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED
X PREMISES Ea occurrence)
ccurrence $ 300,000
CLAIMS-MADE � F OCCUR F MED EXP(Any one person) $ 5,000
A X PROFESSIONAL LIABILITY (Claims Made) WIN 09/20/2- 09/20/2- PERSONAL&ADV INJURY $ Included
3000000001- 024 025 GENERAL AGGREGATE $ 4,000,000
AGGREGATE LIMIT APPLIES PER: 01-AL1 90507 PRODUCTS-COMP/OP AGG $ 2,000,000
X POLICY PRO LOC $
JECT
AUTOMOBILE LIABILITY F F COMBINED SINGLE LIMIT
Ea accident $
ANY AUTO BODILY INJURY(Per person) $
ALL OWNED SCHEDULED BODILY INJURY(Per accident) $
AUTOS AUTOS
NON-OWNED PROPERTY DAMAGE $
HIRED AUTOS AUTOS APer accident
r $
UMBRELLA LIAB OCCUR I r I EACH OCCURRENCE $
EXCESS LIAB CLAIMS-MADE AGGREGATE $
DED RETENTION$ $
WORKERS COMPENSATION WC STATU- OTH-
AND EMPLOYERS'LIABILITY Y/N TORY LIMITS ER
ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $
OFFICE/MEMBER EXCLUDED? N 1 A
(Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $
If yes,describe under
DESCRIPTION IONS below E.L.DISEASE-POLICY LIMIT $
Accident Medical Expense r r $25,000 Accident Medical Aggregate
A Accidental Death, Dismemberment& I I WIA3000000002-01 09/20/2- 09/20/2- $500 Deductible
Paralysis 024 025 $1,000,000 AD&D Aggregate
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required)
It is understood and agreed that the Certificate Holder is named as Additional Insured, subject to all policy terms, conditions, and exclusions
APPROVED
By Cynthia Mora at 10:05 am, Dec 19, 2024
CERTIFICATE HOLDER C
City of Santa Ana
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
20 Civic Center Plaza AUTHORIZED REPRESENTATIVE
Santa Ana CA 92701 Miriam Ball
@ 1988-2010 ACORD CORPORATION. All rights reserved.
ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD
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CITY OF SANTA ANA
Risk Management a division of Human Resources
Managing Risk through Awareness and Action
AFFIDAVIT OF EXEMPTION FOR WORKERS’ COMPENSATION INSURANCE
I, ________________________________________ (“Representative”), attest that I am an authorized
(Name and Title of Vendor Representative)
representative of __________________________________________________ (“Company”), and
(Consultant/Company Name)
possess the authority to legally bind Company.
In my capacity as Representative of Company, I represent and confirm the following, as relates to the
agreement between Company and City of Santa Ana, agreement number ____________________
(“Agreement”) to provide ____________________________________________________ (“Services”):
(Services to be provided under agreement/contract)
During the course and scope of Company’s agreement with the City of Santa Ana, Company will
not employ any person in any manner so as to become subject to the workers’ compensation laws
of California, and agree that if Company should become subject to the workers’ compensation
provisions of Section 3700 of the Labor Code, Company shall forthwith comply with the
provisions and provide proof of workers’ compensation coverage immediately.
If at any time it is found that Company is not adhering to any and/or all of the statements in this
document and does not maintain the minimum insurance coverage as
required in the Agreement, it will be considered a breach of Agreement rendering the Agreement
null and void and Company will be fully liable for any and all damages.
__________________________________________________________ __________________
Signature Date
_____________________________________________________________________________
Print Name
______________________________________________________________________________
Title
______________________________________________________________________________
Contact Information, i.e., Telephone Number and/or Email Address
WARNING: FAILURE TO SECURE WORKERS’ COMPENSATION COVERAGE IS UNLAWFUL,
AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO
ONE HUNDRED THOUSANT 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.
Affidavit of Exemption for Workers’ Compensation Insurance 11.12.2024