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HomeMy WebLinkAboutDEL CARMEN BUSTOS GUTIERREZ, MARIA-2016City of Santa Ana ... - -- Clerk of the Council coTc office use only !� 'w AGREEMENT TERMINATION FORM Please complete this form in its entirety when the attached agreement and all 7119 AM 22 PM q: n7 amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requirements CITY CR S AN I A AN A have been satisfied prior to signing the termination form. CLERK OF COUNCIL Is the agreement(s) a permanent record? Yes No Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with No. N-2016-183 was completed on p va1 ' and final payment has been made. (List all amendments. Use space below if needed.) D Department: 1 RG ",5 A Phone/Ext.: Signature: ty ld1t� reylixy, Date: Revised: 10-18-16 INSURANCE NOT ON FILE WORK MAY N01 PROCEED LERK OF COUNCIL DATE. 'a 21 2015 O: PRCS Q ) RECREATION SERVICES AGREEMENT N-2016-183 Silvia Cuevas THIS AGREEMENT is made and entered into this try 6 day of_l 9:2016, by and between Maria Del Carmen Bustos Gutierrez C"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 ("City"). RECITALS A. The City desires to retain a recreation service provider having special skills, resources and knowledge to provide Zamba classes to various age groups. 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 she is Imowledgeable in her 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 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. Total revenue to Provider shall not exceed $25,000 annually. Payment to Provider shall be made within thirty (30) days following completion of the last class taught by Provider that 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%) of all gross revenue received from program participants as an administrative fee. 3. TERM 'Thus Agreement shall commence on January 3, 2017, and terminate on December 3'1, 2017, 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. Page 1 of 8 4. INDEPENDENT CONTRACTOR Provider shall, during the entire term of this Agreement, be construed to bean 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. S. 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 corrunorcial 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 act or occurrence arising out of Provider's negligent 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 $ I,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 (e) contain standard separation of insured provisions. b. Worker's Compensation Insurance, In accordance with California State law, Consultant, 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 full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be famished to the City upon execution of this ^ Agreement and shall be approved in form by the City. Page 11 of 8 (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. 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 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. C. IN MEMNIFICATION Provider agrees to and shall defend, indemnify 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 negligent 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; 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 terns of, or effects, arising from 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 challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or properly rights arises by reason of the terms of, or effects arising from this Agreement. 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, including any criminal history identified, prior to performing services hereunder. The background check shall include at a minimum a state and county criminal history investigation where such individual vesicles and a search of the National and California State Sex Offender Registries. Pag3 Or 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 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 26 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 571-4211 To Provider: Maria Del Carmen Bustos Gutierrez 1222.South Ross Street Santa Ana, CA 92707 Cell (714) 785-2685 Email: Cartnengutiet=541 ccyahoo,cum 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 deerued 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 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 instnrment 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 Page 4 of 8 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. ASSIGNMENUSUBSTITUTES 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 assigmnent, 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 tcach 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 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. 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 1 Lb. must be given to the City at least thirty (30) days prior to ter7nination/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 tear (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. under 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 DISCRIMINATIONT 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, Page 5 of 8 termination or other employment related activities, or in any activities under this Agreement. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local taws 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 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. iir -XWKWIMM 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 unenforeeability 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 attachcd hereto shall be incorporated as if fully set forth in the body of this Agreement. 19. AUTHO12M 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. Page 6 of 3 Exhibit A SCOPE OF SERVICES— Mania Del Carmen A. Provider will teach Zumba for age 18yrs - 99yrs S. Provider shall teach such or similar classes (1) at the times below at a facility to be designated by the City or (2) on a schedule otherwise 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 6ty's needs. Zumba class will consist of 4weeks session, held 4 days per week, I hour per day, ages 18yrs-99yrs C. 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. D. 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. & 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 REGISTRATION A. Zumba class mentioned above must have a minimnrn of 5 paid students and no more than a maximum of25 paid students. S. 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 fees as established by City. A. Any materials fee shall be established by mutual agreement of City and Provider and shall be payable directly to Provider. C. Only registered participants may participate in class. D. Any refunds to participants will be made in accordance with City policy. Page 8 of 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 City Ay W1 Attorney RECOMMENDED FOR APPROVAL: iM M GERARDO MOUET Executive Director of Parks, Recreation and Community Services Agency CIT SANTA A DAVID CAVA O City Manager k PROVIDER: MARIA DEL CARMEN BUSTOS GUTIERREZ Page 7 of 8 EVANSTON INSURANCE COMPANY CERTIFICATE NO.: 2017-07 CERTIFICATE OF INSURANCE SPECIAL EVENT LIABILITY PROGRAM PRODUCER PUBLIC ENTITY (ADDITIONAL INSURED) Alliant Insurance Services, Inc, in conjunction with City of Santa. Ana Apex Insurance Services 20 Civic Center Plaza. P. O. Box 6450 Santa Ana, CA 92701 Newport Beach, CA 92658 License No: OC 36861 NAMED INSURED (EVENT HOLDER): EVENT INFORMATION: Maria Del Carmen Bustos Gutierrez TYPE: Zumba 1222 S Ross St. DATE(S): 1/01/17-12/31/17 Santa Ana, CA 92707 LOCATION: Memorial Center & S/W Senior Center �� *Liquor Liability Yes ❑ No Z "Liquor Liability after 12 am ends before 2 am ❑ This is to certify that the insurance policy listed below has been issued to the above insured named (event holder) for the policy period indicated. The insurance described herein is subject to all the terms, exclusions and conditions of such policy(ies) unless amended as described in Special Conditions.. INSURANCE CARRIER: Evanston Insurance Company MASTER POLICY NUMBER: SEP41023 MASTER POLICY DATES: EFFECTIVE: JANUARY 1, 2017 EXPIRATION: JAN'UARY 1, 2018 COMMERCIAL GENERAL LIABILITY OCClnRRENCE FORM DEDUCTIBLE: NONE General Aggregate Limit $ 2,000,000 Products & Completed Operations 1,000,000 SPECIAL CONDITIONS: Personal & Advertising Injury 1,000,000 The following endorsements attached to Each Occurrence Limit 1,000,000 the Master Policy do not apply to this Damage To Premises Rented To You (Any One Premises) 1.00,000 Certificate Of lnsurancc: Medical Payments (Any One Person) 5,000 Liquor 1.aiability (If purchased) 1,000,000 Optional Limits Put -chased , `w ❑ $1,000,000/$3,000,000 [:1$2,000,00052,000,000 V Damage To Property (If purchased) The limits Of insurance apply separately to each event insured by this policy as if a separate policy of insura , as bee �ssu e 'enL OTHER ADDITIONAL INSUREDS t ,e CANCELLATION: Should the above described policy be cancelled before the expiration date thereof„ notice will be delivered in accordance with the policy provisions, AUTHORIZED REPRESENTATIVE:. DATE ISSUED: December 20 2016 by Stella Fajardo