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Home My WebLink AboutMYERS, MICHAEL 1AGREEMENT TERMINATION Please complete this form when the attached agreement is no longed c$3' Return form to the Sr_ Deputy Clerk of the Council (M-30). Call ?'2?i 1?? questions. CLERK O COUI'i'C ------------------------------------------------------------ The agreement with was completed on 1 oZ- ? 1 ! D ?- ?' ,and final payment has been made. Department: EU,5 v' r Signature: A 1 Qi ?1 d ? g,1QAZQZO Date: ? I ?q 1, n City of Santa Ana Revised 8-7-03 Clerk of the Council N-2004-066 INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES 1;2- 31 -Dt.f CLERK OF COUNCIL DATE: lR-/:5-oi./ CONSULTANT AGREEMENT ~:. {)fCS (C."i~~ 1I't- THIS AGREEMENT made and entered into this /.1 day of JiPte- ,2004 by and between Michael Myers, an individual (hereinafter "Consultant"), 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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in tennis instruction. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant 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 Consultant shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $10,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. 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 and terminate on December 31, 2004, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Parks, Recreation and Community Services and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant 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 professional manner in which Consultant performs the services which are the subject matter ofthis Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant 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. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and 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 Consultant'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. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Reserved c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant 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, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Consultant 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. 2 (iii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. 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. (ii) e. If Consultant 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 forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant 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 Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant 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. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party 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. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant 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. 8. CONFLICT OF INTEREST CLAUSE Consultant 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. 3 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 telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy 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 telefacsimile (714) 571-4235 To Consultant: Michael Myers 16327 Millstream Lane Cerritos, California 90703 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 telefacsimile, any notice, tender, demand, delivery, or other 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 Consultant, 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 Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent 4 with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor 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 are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant 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 consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination. 13. DISCRIMINATION Consultant shall not discriminate because ofrace, 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, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any ofthe 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. 15. PROFESSIONAL LICENSES Consultant 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. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 5 16. MISCELLANEOUS PROVISIONS a. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body 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 PATRICIA E. HEALY Clerk of the Council ~?~, City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney , .. / \ / {if/- By: . ÜU/fL~ ~..~t \..0(7 - . Laura Sheedy f Assistant City Attorney RECOMMENDED FOR APPROVAL: JO~ Executive Director of Parks, Recreation and Community Services CONSULTANT ~~/t.~ MICHAEL MYERS Tax ID# 5';;.5- - ÝZ -7"'tG? ? 6 EXHIBIT A SCOPE OF SERVICES Consultant shall provide tennis instruction for children and adults as follows: FEES . Jr. Tennis is a Y2 -hour class for children ages 5 to 8. Beginner Tennis is a one-hour class for children 8 and older. Intermediate Tennis is a one-hour class for children 8 and older. Senior Tennis is a one-hour class for adults 50 years and up. The classes will be held at the Cabrillo Tennis Center Consultant has provided a class schedule, set forth in Attachment 1, hereto. Each class shall have a minimum of 6 and a maximum of 12, registered and paid participants. If the minimum registration has not been reached by the first class, the class may be cancelled by mutual agreement of Consultant and City, with no compensation owed Consultant for any cancelled class session. Consultant shall determine advancement to intermediate level instruction. . . . . . . . . . Each participant shall pay a $80.00 class registration fee per eight-week session. . No refunds will be made to participants after the first week of class unless the class is cancelled by the Parks, Recreation and Community Services Agency. . City shall collect registration fees from each participant. Consultant shall refer interested students to City for registration. . Consultant shall receive seventy percent (70%) of total fees collected for the tennis classes within fifteen (15) working days after completion of each class session. City shall retain thirty percent (30%) of the fees collected. . Consultant agrees that City shall be entitled to audit Consultant's records and classes to ensure compliance with this Agreement and that all participants are registered. . Consultant may not waive class participation/registration fees. . City shall prepare class rosters and provide a copy to Consultant. Only registered participants, listed on roster, may participate in class. 7 Attachment 1 Class Location and Dates Cabrillo Tennis Center Session 1 Monday July 12 - August 30 Session II Monday Sept. 20 - Nov. 8 Session I #1£/1'1 !hvrsdllC-1 I S- 2- Wcdnc3dtty- July 14""'- Sept.-1'" Session II ~(ÇtJ.lU1 /JtI /l /11, Vv\;Juè:sday '2-3 I Sept...2:2'" - Nov. ~ 8:30-9:30 am/Seniors (50yrs+) 9:30-10:30 am/Beginner Adult (18yrs+) 10:30-11 :30 am/Intermediate Adult(18yrs+) 8:30-9:30 arn/Seniors 9:30-10:30 am/Beginner Adult 10:30-11 :30 am/Intermediate Adult 8:30 - 9:00 arn/5 - 8 years 9:00 - 10:00 am/9-12 year 10:00 - 11 :00 am/12-15 years 11 :00 - 12:00 noon/15 - 18 years 3:00 - 3: '3optY'l /h(R~ -%:30 9:09 am/5-8 years 3:30-4:30 pm/9-12 years 4:30-5:30 pm112-15 years 5:30-6:30 pm115-18 years 8 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative 9 EV ANSTON INSURANCE COMPANY CERTIFICATE NO.: CERTIFICATE OF INSURANCE EXCLUDES COVERAGE FOR NOMINEE EVENTS. SEE SEPARATE APPLICATIONS FOR NOMINEE EVENTS. SPECIAL EVENT LIABILITY PROGRAM PRODUCER: PUBLIC ENTITY (ADDITIONAL INSURED) Driver Alliant Insurance Services P. O. Box 28323 Santa Ana, CA 92799-8323 (949) 660-8163 License No: OC 36861 NAMED INSURED (EVENT HOLDER): . Mic.hael. MtjeJU> 16327 Mil1..6tJteam Lane C~o~, CA 90703 Ciltj 06 San:ta. Ana 20 Civic. Cen:teJt Plaza, Santa Ana, CA 92701 M-28 EVENT INFORMATION: TYPE: I n-6Vw.ilio nal - T enrU/.> DATE(S): 7/12/04 - lZ!31!04 LOCATION: Cabtúlio TenrU/.> Cen:teJt TIùs 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 requirements, terms or conditions 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. INSURANCE CARRIER: Evanston Insurance Company MASTER POLICY NUMBER: 04SEPIOOOOOl MASTER POLICY DATES: EFFECTIVE: JANUARY 1,2004 EXPIRATION: JANUARY 1,2005 COMMERCIAL GENERAL LIABILITY General Aggregate Limit Products & Completed Operations Personal & Advertising Injury Each Occurrence Limit Fire Damage (Any One Fire) Medical Payments (Any One Person) OCCURRENCE FORM DEDUCTIBLE: NONE $ 2,000,000 1,000,000 1,000,000 1,000,000 50,000 5,000 The limits of insurance apply separately to each event insured by this policy as if a separate policy of insurance has been issued for that event. "Who is insured" is amended to in dude, as an insured, the person or organization shown in this schedu]e, but only with respect to liability arising out of the ownership, maintenance or use of the premises used by the named insUTed (event holder). This insurance does not apply to: Any "occurrence" which takes place after the event holder ceases to be a tenant in that premises. OTHER ADDITIONAL INSUREDS CANCELLATION: Should the above described policy to cancelled before the expiration date thereof, the issuing company will mail 30 days written notice to the certificate holder and additional insureds ]isted. AUTHORIZED REPRESENTATIVE, ~~ DATE ISSUED: 5/18/04 ~AA~7