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HomeMy WebLinkAbout25C - AGMT - ZUMBA INSTRUCTORREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 6, 2014 TITLE: AGREEMENT AMENDMENT AND NEW AGREEMENT WITH MARIA MADDOCK TO PROVIDE ZUMBA INSTRUCTION SERVICES CITY MANAG RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: .: • ri ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2A Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute an amendment to the agreement with Maria Maddock for Zumba instruction services, increasing the compensation from $25,000 to an amount not -to- exceed $30,000, annually, subject to non - substantive changes approved by the City Manager and the City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute a new agreement with Maria Maddock for Zumba instruction services in the amount not -to- exceed $30,000 for a one -year term with two one -year options under the same terms and conditions, exercisable by the City Manager, beginning July 1, 2014 and renewing on July 1, 2015 and July 1, 2016, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Parks, Recreation and Community Services Agency ( PRCSA) Leisure Services Program offers low -cost courses and activities to Santa Ana residents in the areas of Music and Dance, Arts, Nature and Science, Equestrian, Aquatics, Sports, and other special interests. The quarterly leisure class brochure has been instrumental in increasing the number of students registering for many classes. Since last summer, PRCSA has expanded the Leisure Services Program to include 127 new recreational and educational classes. Maria Maddock has been providing Zumba instruction for the city's Leisure Class Program since April 2010. Zumba is a fun way for individuals to gain confidence and learn Zumba dance ability. Ms. Maddock offers classes for ages thirteen years old to adult, five days a week. She is averaging over 40 -60 students per class. The Leisure Services Program is a revenue - generating program that uses registration fees to pay for instructors and supplies. The current agreement provides that the City retain 30 percent and provide the instructor 70 percent of the revenue. The number of class registrations has increased this fiscal year. Due to the popularity of the class, city staff is anticipating the instructor's compensation of the total revenyW-Wed the current contract amount of $25,000 Agreement Amendment and New Agreement with Maria Maddock May 6, 2014 Page 2 per fiscal year. Therefore the City is requesting increasing the not -to- exceed amount to $30,000 Additionally, entering a new agreement with an instructor compensation not -to- exceed $30,000 annually will provide services from July 1, 2014 through June 30, 2015 with two one year options to renew for services through June 30, 2017. FISCAL IMPACT Funds are available in the PRCSA - Recreation- Contract Services account (no 01113230 62300). Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez, Executive Director Finance and Management Services Agency /e! 25C -2 AMENDMENT TO RECREATION SERVICES AGREEMENT THIS AMENDMENT, made and entered into this 6 "' day of May 2014, by and between the City of Santa Ana, a chatter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ( "City"), and Maria Maddock ( "Provider "). RECITALS A. The City and Provider entered into that certain Recreation Services Agreement dated July 1, 2013 (Agreement #N- 2013 -073), hereinafter referred to as "said Agreement ", to conduct various fitness classes in the City's leisure class program. B. The parties hereto now desire to amend the "Compensation" section of said Agreement. WHEREFORE, in consideration of the mutual and respective covenants and promises hereinafter contained and made, and subject to all of the terms and conditions of said Agreement as hereby amended, the parties hereto do hereby agree as follows: I. Section 2 of said Agreement, Compensation, is hereby amended to increase the Compensation by adding Five Thousand Dollars for a total Compensation to Provider not to exceed Thirty Thousand Dollars ($30,000.00) annually. 2. Except as hereinabove modified, the terms and conditions of said Agreement remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment to said Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CITY OF SANTA ANA David Cavazos City Manager PROVIDER: Maria Maddock 25C -3 25C -4 RECREATION SERVICES AGREEMENT THIS AGREEMENT made and entered into this 1" day of July 2014, by and between Maria Maddock (hereinafter "Provider ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a recreation service provider having special skills, resources and knowledge to conduct various fitness classes in its leisure class program. B. Provider represents that Provider is able and willing to provide such services to the City. 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. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terns and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Provider shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION In consideration for the right to provide the programs set forth in Exhibit A, City agrees to pay the Provider seventy percent (70 %) of all gross revenue received from program participants. Anticipated compensation to Provider shall not exceed $30,000 annually. Payment to Provider shall be made within thirty (30) days fallowing completion of the last class taught by Provider that month. 3. TERM This Agreement shall commence on July 1, 2014, and terminate on June 30, 2015, unless terminated earlier in accordance with Section 12, below. There shall be two (2) one -year options to renew, exercisable by the City Manager and the City Attorney under the same terms and conditions as this Agreement, 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 shalt 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 25C -5 therefrom, and property damage, in the total amount of $1,000,000 per occurrence, Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. b. Worker's Compensation Insurance, In accordance with the provisions of Section 3300 of the Labor Code, 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 tinder 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) Provider shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be, approved in form by the City Attorney. (ii) 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. 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 forthwith 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 and hold harmless the City, its officers, agents, employees, Providers, 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 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. The Provider 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. CONFLICT OF INTEREST Provider covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 8. LIVE SCAN BACKGROUND CHECK Providers, and any employees, subcontractors or substitutes, in contact with minors under eighteen (18) years of age shall arrange for and submit to a Live Scan electronic background check for criminal history available through the California Department of Justice as a condition of this Agreement and provide proof of compliance prior to performing services hereunder. 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 rnail, postage prepaid, or sent by telefacsim le or other telegraphic communication in the manner provided in this Section, to the following persons; TO City: Clerk of the Council City of Santa Ana 25C -6 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Facsimile (714) 647 -6956 With copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 26 Civic Center Plaza (M -75) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 571 -4211 To Provider: Maria Maddock 3050 Birch Street #613 Santa Ana, CA 92704 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 facsimile, 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 Provider, 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 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. 11. ASSIGNMENT /SUBSTITUTES a. 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. Provider must personally teach at least seventy -five percent (75 %) of its offered classes, b. Substitutes. In the event Provider is not able to teach a class due to illness or some other cause beyond Provider's reasonable control, Provider must procure, at its sole expense, a qualified substitute instructor to teach the class at its regular time and place. Provider shall ensure that substitute instructors comply with the City's insurance and live scan requirements contained herein. Provider must immediately notify the City of the substitute instructor's name, qualifications, address and phone number. If Provider cannot procure a qualified substitute and the City is unable to assist in this regard, then the class shall be canceled and a make -up class must be added to the session, Provider must notify participants as soon as possible of any class cancellation and make -up class. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. Termination or cancellation of classes by the Provider 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. 25C -7 13. DISCRIMINATION Provider 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, teaching, training, utilization, promotion, termination or other employment related activities. Provider 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 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. 15. LICENSES Provider shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. 16. 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, 17, EXIIIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 18. 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 be so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. 25C -8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year First above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Lisa Storok Assistant City Attorney CITY OF SANTA ANA David Cavazos City Manager PROVIDER Maria Maddock 25C -9 Exhibit A SCOPE OF SERVICES— Maria "RIA" Maddock Provider will teach Zrmzba w/Ria and Piloxing classes for age 13 & up. A. Zumba w /Ria- class consists of monthly session, held 2 days per week, 50 minutes per day -$20 /per 2 day session. (M & W) B. Zumba w/Ria- class consists of monthly session, held 2 days per week, 50 minutes per day -$20 /per 2 day session. (T &Th) C. Piloxing class consists of monthly session, held 2 days per week, 50 minutes per day -$20 /per 2 day session. D. Zumba Saturday Morning wMa class consists of monthly session, held 2 days per week, 50 minutes per day -$15 /per 2 day session. E. Classes will be throughout the year. F. Provider and City staff shall mutually agree upon a schedule for classes, including the location, specific days and hours when class will be held and holidays to be observed. G. Provider shall provide materials, supplies, equipment, records and personnel. Provider shall be responsible for clean -up of the facilities and materials and shall ensure the safety and effectiveness of instruction. H. If Provider allow others to teach his /her class, those teachers must be over 21, have obtained and maintain an instructor rating, and be covered by Providers insurance. Provider shall provide City with documentation to verify instructor and insurance requirements CLASS SIZE A. Each class must have a minimum of 1 paid student and no more than a maximum of 65. B. No registration will be accepted after the second meeting of class. C. 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 Provider compensation. CLASS FEES A. Each participant shall pay a $20/$15/$20 class registration fee per month. Annual anticipated compensation to Provider shall not exceed $30,000.00. B. No refunds will be made to participants after the first week of class unless the class is cancelled by the City. C. The City shall collect registration fees from each participant during the registration period. Provider shall not collect fees, but shall refer all interested participants to City for registration. D. The City shall collect registration fees from each participant during the registration period. Provider shall not collect fees, but shall refer all interested participants to City for registration. E. Provider will receive seventy percent (70 %) of the total fees collected each month. City and Provider agree that City shall retain thirty percent (30 %) of the fees collected as an administration fee. Provider agrees that City is entitled to audit Provider's records and classes to hrsare compliance with this Agreement. F. Provider may not waive class participation/registratioa fees. G. City shall prepare class rosters and provide a copy to Provider. Only registered participants may participate in class. 25C -10