HomeMy WebLinkAboutCOLONY OF PERFORMING ARTS, INC. 1-2000
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J -q-v I CONSULTANT AGREEMENT " f\ (S
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THIS AGREEMENT, made and entered into this ) 7t;,( day of d~1,<-(-uI-<-1 ,
2000 by and between the Colony of Performing Arts, Inc" a California non profit
corporation (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").
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RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the
field of dance instruction to provide after school dance instruction at After
School Arts sites in Santa Ana schools,
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. COMPENSA nON
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
June 30, 2001, unless terminated earlier in accordance with Section 12, below. The term
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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 of this
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 iJ1jury,
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, Business automobile liability insurance, or equivalent form, with a combined
single limit of not less than $1,000,000 per occurrence, Such insurance shall include
coverage for owned, hired and non-owned automobiles.
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.
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d. If Consultant is or employs a licensed professional such as an architect or
engineer: Professional liability (errors and omissions) insurance, with a combined single
limit of not less than $1,000,000 per claim.
e. 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.
(ii) Certificates of insurance shall be furnished to the City upon
execution of this Agreement and shall be approved in form by the
City Attorney.
(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.
f. 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: (I) 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 I of this Agreement; and (2) from any
claim that personal injury, damages, just compensation, restitution, judicial or equitable
relief is due by reason of the terms of or effects arising from this Agreement. 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 Consultant further agrees to indemnify, hold
hanllless, 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 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.
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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.
The foregoing obligations of non-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 Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation oflaw; or (e) is independently developed by the Consultant
without reference to information disclosed by the City.
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 WIder this Agreement.
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 teJefacsimiJe
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] 988
Santa Ana, CA 92702-1988
telefacsimile (7]4) 647-6956
With courtesy copies to:
Executive Director of Parks, Recreation and Community Services
City of Santa Ana
20 Civic Center Plaza (M-23)
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P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 571-4235
and,
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant:
The Colony of Performing Arts, Inc.
12900 Main Street
Garden Grove, California 92840
e-mail: cpactlc!iVaol.com
Attn: Dan Collins
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 with, or in addition to, the terms
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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 shaIl 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
shaIl pay Consultant compensation for all services performed by Consultant prior to receipt
of such notice of termination, subj ect to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant
to deliver to the City all work product completed as of such date, and in such case such work
product shall be the property of the City unless prohibited by law, and Consultant consents
to the City's use thereoffor such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of
performance specified in the Recitals of this Agreement.
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex,
marital status, sexual orientation, age, national origin, ancestry, or disability, as defined
and prohibited by applicable law, in the recruitment, selection, 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 and all questions relating to its validity, interpretation,
performance, and enforcement shaIl be government and construed in accordance with the
laws of the State of California. 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 shaIl be determined and governed by the laws of the
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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 her inability to obtain or
maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall
be cause for termination of this Agreement.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respecti ve parties to each of the terms of this
Agreement, and shall indemnify City fully, including reasonable costs and attorney'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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
ATTEST:
CITY OF SANTA ANA
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PATRICIA E. HEAL Y
Clerk of the Council
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6A VID N. REAM
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Laura Sheedy
Deputy City Attorney /
RECOMMENDED FOR APPROVAL:
Dan ollins, Direc
The Colony ofPerfornling Arts, Inc.
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Cleve Williams
Executive Director of the Parks,
Recreation and Community
Services Agency
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Employer ID # or Individual SS #
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EXHIBIT A
Scope of Services
I. Consultant shall provide dance instruction at After School Arts sites in Santa Ana
schools. Each site will receive two (2) hours of instruction, one day per week, from
3:00 to 5:00 p.m. Consultant and each individual site shall agree which day
instruction will be provided.
2. Consultant shall assign one dance instructor to each site for the full year.
3. Consultant shall offer an educationally based level of instruction introducing varying
dance forms, i.e. contemporary, jazz, modern and ballet, to the students. Traditional
dance terminology and technique will be utilized. Sequential instruction is to be
maintained for optimum instruction.
4. Consultant shall produce student dance performances four (4) times at each school
site during the year of instruction. These performances shall include memorized
performances, costumes, sets and technical support as needed. The Performances
shall not be longer than 45 minutes. Each performance will incorporate theater,
music, dance and visual art. The dance instructor will work with the site coordinator
and other arts instructors to infuse these arts disciplines into the quarterly
productions.
5. The dance instructor shall track attendance and participation and shall participate in
evaluation of individual students.
Compensation
Consultant shall receive thirty dollars ($30.00) per hour of dance instruction. Consultant
shall be reimbursed for program expenses, i.e. materials, costumes and equipment rental
in an amount not to exceed $4,000.00. Total compensation for instruction and expenses
shall not exceed $10,000.00 during the term of this Agreement.
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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:
I. 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 ofliability. 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
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III
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POlicy No.
MARKEL INSURANCE COMPANY
COMMERCIAL GENERAL LIABILITY POLICY
DECLARATIONS
3602HF201614. 0
NEW
Ronewal of Policy No.
Named Insured and Mamng Address ;"1(1., S(~"'~. -rQWI'f or City, CO:Jntll, Slltll. Zip CgdeJ
The Colony of Performing Art., Inc.
I 2900 Main Stroot
Garden Grove, CA 92840
Policy PeriOd: from 06-14-2000 until
at your mailing address shown above.
06-14.2001 ,at 12:01 A.M. Standard Time
IN RETURN FOR THE PAYMENT OF THE PREMIUM AND SUBJECT TO All TERMS OF THIS POLICY,
WE .<l.GREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY.
. LIMITS OF INSURANCE
r~ ener.1 Aggregate limit (Other Than ProductsuCompleted Operationsl $ 3.000.000
I P, oductsuComplotod Operations Aggregate limit $ 1,000,000
Porsonal and Advertising Injury limit $ 1,000,000
I Each Occurrenoe Limit $ t,oOO,OOO
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Fire Demage Limit $ 50,000 Any One Fire
Modical Expanse Limit $ 5,000 Any One Person
IlfTAOACTIVE PATE lCG 00 02 only) N/A IN STATE OF NEW YORK -.---------
C ~veraga A oj this Insurance does not apply to 'bodily injury' or 'property d.maQa' which Occur. before tha
Ai~t'oactjve Datel 11 6ny, shown here: None
IEnt.r [)1IIt* or 'r-ffln.' if 1'\0 AlltrOiIGl...e Dati lIiPj)llMl
[.[SCRIPTION OF BUSINESS AND LOCATION OF PREMISES
_.- COf':Ior!'J1ion 99996 J H..lth &. Fjtnes~ Direct BusIness
Fjrm of SUl9'in656: Markol Ur'l';htrwtitet5 &. erok~r"
Bl,'Il"Jess De.c:ription: Performing A,ts 4600 Cox Rotld
Gi"," AI/en, VA 23060-
LOcation of All F'rami$es You Own, Rent Ot Occupy:
SEE ATTACHED "EXTENSION OF DECLARATIONS"
PREMIUM A.dvar,ce
~" Premium BaSIS Rate Premiul!L
Classification Code No.
- SEe ATTACHED "EXTENSION OF DECLARATIONS"
TNaI Advance Premium:$ 1.439.00
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ORMji AND ENDORSEMENTS f tn', policy at time of Isoue: ,
~rms and Elldorsements applYing t~ th~~,<;:,:::,~~,g~f,~~:.:::.~ .Z;.~~.:;oe:;,t ~L\3":""". MO""" '''''. CO""" Hm co,,,"'o'''';
MJ1(<J4,Jt!\. MCOO2tOllI9$1, CGOOO\l't/88~. C.,)1:1~((JjI8;t~SI, Mil "'(08/gel. Il027C'108,1~11, :'..OCI'1I',/9Bl, I\..OO2'(111tl~j
CG21...1{O!M~;1. CG1'41t1'f8'L MI"004:0,./~f}. MJlOOIHQ .
R. r J!.~
06.1 &.2000 By Bruce A, Kay ,.
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CounterSigned.
GAN Glen Alten, VA _ "'A,R.... DECLAf\AT~OfllS, CO"~RAG' PART CO'/EAAc:iE FORM/Sf
Tp.((;Si DecLARATIONS 1'OGf!THER WI'rH TH:...C~~~.It~Zyi~~~E~~~D;~~~SA ~~;~~~;~Of, 'COf>JIPLEl'E. 'fwt ,o.l!IOVfi N\JMSl!iUD POUCi~'\.lr.d
AND FORMS ,AND fNOOASEM",..1 . " , I Ii OHlell, lnt.., wl~h in, ",ermflltf(>n_
IrlClulin ~",,~rlll"'to miUf1ll1 01 Illllurll1C, 81'1'"
MOOO~ (9/951
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EXHIBIT B
AIm}TIQNAL INSURED.
FO~ l;PMM~RCIAI. QENERAL LlABIUT
InsuranceCOtD~~~
This endorserntntmadifies such insurance as IS afforded by thelp~IlVisien~ of Peli,y
1/ ~~.:::2lA.<<i?J'tlatinf; tl) the foll<>wing: I
I. The City of Santa Ana, 20 Ci\'i~ Center Plaza, S ma Ana, California
927Jll; its officers, employees, "Sent!, voluntt--ecs and represent tives are r.amed!lS
Ildditional insureds ("additional in~ureds") with regarel to Iiabili y and defense of suits
ariJ'll~ from th~ OpetlltlOlU Me! uses performed by or on behalf f the named ins/lred,
2 With ",spect to ~liaim5 arising out of the o\>C'r.ti s and uSes petformfd by
or on behalf of the nlll1led ilIsuree, S\1ell lMUrance &8 is afford by this policy. is primary
Gnd is not addltlClnaJ to or contrib\;lti:1li with any cth.r insurlUlce carried by c.r fOI the
benefit of the aclditional illllll'tds
a&ajll.~t whom claim is
its of liability, 1'h~
tallY l'Jght which ~Ul:h
d
3, This insurance applies separately 10 each inSure
malic or suit is brouglll ."ccpt with r~sJl<<tlo tho wmpany'a Ii
I nelusion of any pcDOll or o~anizatioll a~ al'llnSllred shall net
person or organization would have as a claimant lfnol so inclu
4, With nrsptlct to lhe additional inslll'eds, this Ins co shaU not b<!
cancelled, or materially reduced in coverage or limits except a thirty (30) da)'s wrillen
norice has been given to the City of Santa Ana, 2() Civic Center PJaza, Sama Ana,
California 92701.
(Completion o!the followin.. including COUl\IC1Silinat\lre. is rc ulrfld to l'llIlke this
.!ldolsement effeCli ve,)
f-ffecti\'e _ t: .1t[''1J~i ,;;._ -;1/..::3" I ,this endor
!'oliey/! ~HP't ~ r
Inuedto-c :.,;,;~.~.
elll form as a p.an of
Al'h{OYED AS TO FORM
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