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HomeMy WebLinkAboutACTIVE LEARNING, INC. 1-2015City of Santa Ana Clerk of the Council AGREEMENT TERMINATION FORM Please complete this form when the attached agreement and all GI amendments (if any) are no longer in effect. Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with AM 22 PM 4: ^4 SANTA ANA OF COUNCIL N-2018-179 � No. was completed on l I I and final payment has been made. (List all amendments. Use space below if needed.) Department: ipa.-%A Phone/Ext.: 5asLl� Signature: El Q k� o (k-,P1 LIP I Date: :7IQ4P Lk' Revised 10-31-12 N-2015-179 INSURANCE ON RLE WORK MAY PROCEED UNTIL INSURANCE EXPIRES fl—o26—IL RECREATION SERVICES AGREEMENT CLERK OF 1 COUNCIX � a° 1�1" DATE � y -IRIS AGREEMENT is made and entered into this 23`d day of November 2015, by and R between Active Leaning, Inc., a California corporation ("Provider") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws U of the State of Califonfia ("City"). a ro RECITALS 00) A, The City desires to retain a recreation service provider having special skills, resources and knowledge to provide Ztiunba classes in its leisure class program. B. Provider represents that it 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 terms 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 provision of the programs set forth in Exhibit A, City agrees to pay the Provider seventy percent (70%) of all gross revenue received from program participants. Total revenue to Provider shall not exceed $25,000 annually. Payment to Provider shall be made monthly within thirty (30) days following completion of the last class taught by Provider the prior month, City shall be responsible for collecting all fees from, program. participants. Provider shall not collect fees but will refer all interested participants to City for registration information. Provider agrees that City shall retain thirty percent (30°l0) of all gross revenue received from program participants as an administrative fee. 3. TERM This Agreement shall commence on January 1, 2016 and end on December 31, 2016, unless terminated earlier in accordance with. Section 12 below, 'The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. a. INDEPENDENT CONTRACTOR Provider shall, dining the entire tern of this Agreement, be construed to be as independent contractor and not an employee of the City. This Agreement is not intended nor Page 1 of 8 shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services. Provider shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. Provider is not an agent, representative or employee of City and Provider shall have no authority to act on behalf of the City, 5. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a, Commercial General Liability Insurance. Provider shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any negligent act or occurrence arising out of Provider's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom., and property damage, in the total amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Worker's Compensation Insurance. In accordance with California State law, Provider, if Provider has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, c. The following requirements apply to the insurance to be provided by Provider pursuant to this section: (i) Provider shall maintain all insurance required above in fall 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, (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 Page 2 of 8 and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement, Such termination shall not affect Provider's right to be paid for its time and materials expended prior to notification of termination. Provider waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Provider agrees to and shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability. (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of Provider or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. 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. 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 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. In no case will Provider be required to indemnify or hold harmless the City for injury, damages, just compensation, restitution, judicial or equitable relief caused by the sole negligence of the City. 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 Provider, 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 Page 3 of 8 mailed by first class or certified mail, postage prepaid, or sent by fax 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 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax (714) 647-6956 With 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 Fax (714) 571-4211 To Provider: Active Learning, Inc. Hiba Shublak 14 Surfside Court Newport Beach, CA 92663 hiba ,activelearning sa.orQ 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Provider regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terns of this Agreement and any attachments hereto, the terns 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. Page 4of8 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. 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 are at least twenty-one (21) years of age and comply with the City's insurance and live scan requirements contained herein. Evidence of compliance with City's insurance and live scan requirements shall be provided upon request. Provider must immediately notify the City of the substitute instructor's name, qualifications, address and phone number, If Provider caniot 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. Provider must personally teach at least seventy-five percent (75%) of its offered classes. 12. TERMINATION a. This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Provider shall be entitled to receive, and City shall pay Provider, compensation for all services rendered prior to the effective date of termination. b. Termination or cancellation of classes by the Provider outside of Section I Lb, 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, 13. RECORDS Provider shall use attendance sheets generated and supplied by the City to record attendance in each class. Provider shall keep these and any other records in connection with the work to be performed wader this Agreement and shall permit City, upon request, to review such records for a period of three (3) years from the date of final payment to Provider under this Agreement. 14. NON-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 or in connection with any activities related to Page 5 of 8 this Agreement. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. 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. 16. LICENSES Provider shall, throughout the tonn 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. 17. 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. 18, EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fiilly set forth in the body of this Agreement. 19. AUTHORITY The person(s) executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement, the parties hereto are forrnallybound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST; C MAP.IA D. nUIZAR Cleric of the Council CITY OF SANTA ANA D.AVID CAVAZOS City Manager Page 6 of 8 APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: 4V4r %, J M.FUND Assistant City Attorney RECOMMENDED FOR APPROVAL: X t--��46L, GERARDO MOUET Executive Director o Parks, Recreation and Community Services Agency PROVI H A HUBLAK Active Learning Inc. Tax ID# 47-2532288 Page 7 of 8 Exhibit A SCOPE OF SERVICES — Zumba by Active Learning, Inc. A, Provider shall conduct Zumba classes for children ages 12 and up. B. Provider shall teach such or similar classes (1) at the times below at facilities to be designated by the City or (2) on a schedule agreed upon by the parties for each class session or term, including the location, specific days and, hours when classes will be held, and holidays to be observed, in accordance with City's needs. Zumba classes will consist of monthly sessions, hold 2 days per week, I hour per day C. Provider will provide and be responsible for equipment, records, and personnel and clean -tip of the facilities and materials necessary to ensure the safety and effectiveness of said instruction. CLASS SIZE / REGISTRATION A. Each class must have a minimum of 3 paid students and no more than 20 students. B. No registration will be accepted after the second meeting of class. C. If the minimum registration has not been reached by the second class, the class may be cancelled by mutual agreement of Provider and City. Provider will be under no obligation to provide services for the cancelled classes, and the City will have no further obligations to pay Provider compensation for the remaining classes that were cancelled in that session. CLASS FEES A. Each participant shall pay class registration fee as established by City. B. Provider may not waive class participation/registration fees. C. Only registered participants may participate in class. D. Any refunds to participants will be made in accordance with City policy. E. Any material fee shall be established by mutual agreement of City and Provider and shall be payable directly to Provider. Page 8of8 Policy Number: CPS20552174 Date Enieredi""TT7 'y sa Ln acQRo CERTIFICATE OF LIABILITY INSURANCE MMi DATE24/2015 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 pollcy(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 (feu of such endorsement(s). PRODUCER Cheryl Hart -Munoz Insurance 41667 I St. Ste. H8 Murrieta, CA. 92562 CONTACT NAME,"' PHONE (951)600-0500 F^X 951)332-8000 Arc No: E-MAIL ADORE INSURER(S) AFFORDING COVERAGE NAICM INSURER A; Scottsdale Insurance Co. INSURED Active Learning INSURER B INSURER0: HIBA SHUBLAR 14 Surfside Court INSURER O: Newport Beach, CA 92663 INSURER E: INSURER F: ■tl�11R:C1C1a.�10a9 I I NVII 1=11111110i IN= slATJ LY hid0 MIIT, 1t1yv� 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. LTR TYPE OF INSURANCE NOD -AUI SUER POLIDYNUMBER MMI�ICIYVYY MMUOOIYYVY LIMITS A COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR ICPS2052179 1/26/2015 1/26/2016 EACH OCCURRENCE $ 1, 000, 000 DAMAGE TO RENTED PREMISE Eac Curren $ MEDEXP(Anyoneperson) $5,000 PERSONAL& AOV INJURY $1, 000, 000 GEN'L AGGREGATE LIMIT APPLIES PER; PR - POLICY ❑ JJECT ❑ LOC GENERAL AGGREGATE I$2,000,000 PRCOUCTS-COMPIOP AGG $ 1, DDD, DDD $ OTHER: AUTOMOBILE _ .'.._�ALLOWNED LIABILITY ANYAUTO __ SCHEDULED AUTOS AUTOSNON-OWNED y� `I "' �Q,V` COMBINEDSINGLE LIMIT . accident $ BODILY INJURY (Per parson) $ BODILY INJURY (per accitlenp $ I HIRED AUTOS (AUTOS PROPERTY DAMAGE Paraccident $ 8 UMBRELLA UAS (OCCUR EACH OCCURRENCE S AGGREGATE b EXCESS LIAR CLAIMS MADE { Sta OED RETENTION$ I$ WORKERS COMPENSATION YIN ANY PROPRIETORIPARTNEWEXECUTIVE OFFICERIMEMBER EXCLUDED? NIA n y� Yr ((````T]C1lr� �" 4J ( P e } olit r�'�li 1 STATUT ER STATUTE EL. EACH ACCIDENT Is EL DISEASE-Gq EMPLOYEE $ (MentlelpYy In NH) y�(a c1� It yes, describe under T' + DESCRIPTION OF OPERATIONS below E.L. DISEASE-POLIGY LIM IT $ DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (ACORD 101, Additional Remarks Schedule, me beallaohetlitmmesp... N inquired) After school dance instruction class in the Santa Ana S%ool District for elementary and middle schools CITY OF SANTA ANA, its officers, officials, agents, employees, and volunteers as additional insureds. Primary and non contributory endorsement included CERTIFICATE HOLDER'IS ALSO ADDITIONAL INSURED CITY OF SANTA ANA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 20 CIVIC CENTER PLAZA THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS, SANTA ANA , CA 92701 AUTHORIZED REPRESENTATIVE DHERYL HART—MUNOZ © 1988-2014 ACORD`CORPORATION. All rights lkservec ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD Produced using Forms Ross Plus simmerswww.Fnrnnii com: Impressive Publishing 8011977 POLICY NUMBER: C'PS20S21 ;4 COMMERCIAL GENERAL LIABILITY CG 20 1101 96 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LABILITY COVERAGE PART SCHEDULE 1. Designation of Premises (Part Leased to You) 2. Name of Person or Organization (Additional Insuradr- ^_HE CITY OF SAN_A ANA, ITS OFFICERS, AGENTS, EMPLOYEES AIM VOLII>i':EERS AS ADDITIONAL :NSO`RED 20 CIVIC CENTER PLAZA, SANTA ANA, CA 92701 3, Additional Preni SL0() If no entry appears :above, the information required to complete this endorsement will be shown in the, Dec- larations as applicable to this endorsement.) WHO IS AN INSURED (Section 11) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions: This insurance does not apply to: 1. Any "occurrence" which takes place after you cease to be a tenant in that premises. 2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule. Neviewed by c a rrTi!-a n CG 2011 01 96 Copyright, Insurance Services Office, Inc., 1994 Page 1 of 1 0