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HomeMy WebLinkAboutcls_Shorts_ICA_2019 CULTURE&LEISURE SERVICES INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENTIsrnade this Ist day of Jamiary and between the CITY OF CAPE CANAVERAL,FLORIDA,a Florida municipal,corprmation,whosealdress is 100 Polk Avenue, Cape Qmaveral Flonda,32920("City'),and Doug whose address is 420 Catarnaran Drive#85 Merritt Island f,kilidd_32952 --- ("Contractor" . RECITALS: WHEREAS,the City has cemin recreatior Wi facilities available for use by the public;and WHEREAS,the Contractordesires to of-Ter Yoga/Zumb-a F - itness Classes ("Services") for the benefit of the public using the City's recreational facilities;and WHEREAS,the City desires to allow the Contractor to off&such Sen ices to the public underthe terrmand corx1itions set.forth in this.Agreenint. IN CONSIDERATION of die inutual. covervints and provisions hereof' and other good, diver-se, mid valtiable considerations, the receipt and sufficiency all or Midi is hereby ackthowledged,the p•arties desiring to be legally bound do hereby agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 ErV anent. The City hereby engages the Contractor arKI if,&-, Contractor agrees to perfonil the Ag,_ Services outlined in EXHIBIT"A"for the stated fee,arr&igernenh. Noprior ortagmmientsorretaLiom shall be birxiing tWnany of the partles hereto unless incorporated in this Agr.eenherat. 1.2PD!uKePD4keqce. The Contractor acknowledges that be/she has corctucted an investigation prior to execution of this Agrremerit and satisfied hiniselfAherself as to the coalitions affecting the Services,the,conditions of die facilities in which dhee Servicvs are to be provided,the availability of materials and labor,the cost thereof, the verld rernents,to obtairr riecessary histihunce as set forth hervirr and tine steps necessary to corrpl e te the S ervices here M. The Contractor warrants unto the City that he/she has the conal lei ice"abilities to carefully anti laidiflilly cornp]ete tt*,Services set forth herein. The. Contractor will perform the Services with due and reasonable diligence consistent with sound protbssiorkil practices. 1.3 C CNA Savices. TIr Contractor,wammts unto the City ftt the Services being pedbnTed pLrrsuant to this Agreement do not constitute professional.services as defined by Se"Am 287,055(2)(a),Florida Statutes. ARTICLE 2 REGISTRATION FEES COMPCNSATICIN,&JAYMENIJERMS 2.1RWstr d1kgFees, Conriactoracknowiedges that the City regrires Contractors Mo are perfonning CultuhP& Lela"piugrarn services to charge fees ftit are reasonable in order to encourage participants to register ard frequently parucipate in the Culture & Leisure pmgranh senfices being offered by Contractor at City-owned facilities, In fixtberance of this objective, Contractor shall prx)lx.)se te0sWitiorr fees to the City in writing. Upon receipt of the proposed registration fees, the City will conadt with the Contractor regarding the proposed fees. Registration fees shall be subject to the City's final approval mid such approval shall be at the City's sole discretion. All participants shall be requimi to pay die registration fee approved by the City, Cult.Lr-,&Leis Services Irdq)erdent Conix-actor Arra: at City of Calx*CMIVEn,I 1 of 9 2.2 Lonjngd°__ Conti actor and City a to divide the registration fees derived from the Services provided hereunder as follows: (a) Contractor shall receive 75%of the registration fees derived frons the Services. (b) "line City shall receive 25%of the registration fees derived from the Services. (C) No other cast nation shall be due Contractor for the Services provided under this Agreerrient, unless specifically agreed to by City in advance and in writing. 2.3 R@ffrnd engContachall for scollect all registration fees from Rirticiparits. Contractor agrees r to truintain a report with the tomes of zrlt class pmbcipants,the nurnber of classes attended by each class participant during the rnonth, d-Le amount of registration fees collected from each participant, and the payment rrethod. Registration fees paid by check shall be made payable to the Contractor. On the first day of eadr month, Contractor shall submit such previous,month's report to the City's Culture & Leistim Services Department. 'Ibe City shall generate an invoice detailing the arnount of registration fees to be paid by Contractor to the City based upon the percentage agreed upon in Section.2.2. The Contractor shall subritit the invoiced amount to the City no later fl-ian thirty (30) days following the date of the invoice. Contractor agrees fliat if the ryxluked minimum near of participants for Services is not met, Contractor is not entitled to my conTensation.and any registration fees paid for such Services shall be,re ed. 2.4 Wah7er FornL _During the Contractor's registration prucess, Contractor shall require that all parWjxmts execute the regia tion fonri provided to Contractor by the Culture&Letsure Services Director,vviuch contains a waiver and release,as a condition of allowing participant to receive or participate in any Services offered by die Contractor at or upon any City facilities or properties. If flie City determines dial.a participantis receiving Services at or i4x)n any City facilities or puperties urcler this Agreement without having executed a registration lbrin,the City-4vill have theright to prolijbitthat participant rroinrecelving Servicesimfil six.,.h time as the participant subrnits to the City a fulty executed form. ARTICLE 3 GENERAL CONDITIONS OF SERVICES 3.1 Provision of Services is a Private j , With regard to any and all Services performed hereunder,it is specifically understood and agrt,�ed to by betmeen the parties hereto that the contractual,relationship between the City and the Contractor is such that the Contractor is an h-dependent contractor and not an agent of the City. Nothing in this Agreermerat shall be interpreted to establish any relationship other than that:of an irilependent contractor be the City and the Contractor rittring or after the perfon-nance of the Services under flus Agreement. 3.2 1�@gwAy_pLSeMcEs. The Contractor hereby warrants unto The City that he/she has sufficient exp-,rience to properly con-plete the Services specified hemin or as may be perfortned pursuant to this Agreement. The Contmctor shall con ply with all hws,ordinarices,rules,and regulations in the perfouriance of the SeMces. "The Contractor 401 pay all taxes,fees, license fees required by laK inclixting but:not limited to occupational fees and withholding taxes;obtain a business tax receipt; and assurne all costs incident to the Services, except as provided herein 3.3 ALckpumd Cliecks. A backgrmind screening sball be completed if Contractor's Services n-ey Yee tendered to vulnerable persons,including children,the elderly,and dimbled individuals. Contractor inust sign the statement set forth on the Fonit authorizing the City to conduct a background screening, Contractor may not contmence re ng Service,,until after completion of the screening. Contractor stiall inform the City unrnediately if arrested for any disqualifying off s. 'the City may require a new background screening,at its discTetion,upon annual renewal of this AgreernenL CultLur,&Leisure Services Indqwrdent.Contractor AgimTvail City of Cape Cmamal 2 of9 3.4 The City shall cooperate with the Contractor by: (a) Storing equipt-nent and materials,after approval of the Culture&Leisure Ser vices Direc tor. Me Ci tyM, I not be responsible for any loss or damage of equiptnent and materials stored by the City. (b) Locking and securing the Recreation Complex,or any other location where Services are provided,after each class, (c) Arranging for access to facilities as necessary to the Contractor for provision of the Services. (d) Keeping die fi,cifties provided in good r q.nir,and providing custodial services to the facilities. (e) Assisting with YnkTketing the Services by providing written materials and photographs to include in City mediurns,such as the news]otter or on the City's website ARTICLE 4 SUBCONTRACT&ASSIGNMENT 4.1 &qgomenit and S!Lbcontray. . Uni(Fss otherwise specifically required by this Agreement,the Contractor shall not assign, sublet, or transfer any rights or Services under or interest in (including, bid without limitations,moneys that may becorne due)this A&peernent with=the written consent of the City,except to the extent Haat any assign -° sublet,or transfer is mandated by law or the effect of this lirnitation may be restricted by law. Unless specifically stated to die coritiary in any written consent to any assigniTent,no assignment will release or discharge the assignor from any duty or responsibility under this Agrwyxnt. Further, the Contractor shall not subcontract any portion or all of the Services without the written consent of the City. Nothing order this Agreement shall be construed to give any rigtits or benefits in this Agreernent to myone other than the City and the Contractor, all dutiesand responsibilities undertaken p to this Agreeinent vvM be for dic sole"exclusive benefit of the City and.the Contractor and not for the benefit of my other party. Substitute instructors may not be used by Contractor to render services unless approved by the Cul. = & Leis ute Services Director or his or her designee ("Director"). Substitute instruclors may only render Services after the successful completion of a background screening in the san-v,n-unci-Ler as provided for Contractor. ARTICLE 5 MISCELLANEOUS PROVISIONS 5.1 Govembw Law; Veing This Agreement st Wl be governed by the law of the State of Florida. Venue of all diTutessball be properly placed in Brevard County,Florida. Tliepartiesagee that the Agoeentent was consummated in Brevard County, and The site of the Services is Bn-vard County. If any dispiite concerning this AgreeiTent arises order Federal law,the venue will be Orlando,Florida. 5.2 Notices' All projectshereunder,all notices,demands,requests,instructions,approvals,and claims, sliaR be in wribng� All ices of any type hereunder shall be given by U S,rrrail or by band delivery to an it dividual authorized to receive mad for the below listed individuals,all to the,following individluals at the following locations: TOTHE CITY: David L.Greene,City Manager City of Cape Canaveral 100 Polk Avenue/P.O.Box 326 Cape Canaveral,Fl, 32920 (321)868-1220 ext.211(Phone) Cultme&Leisue Services Weperdei it Contractor Agri muit City of Cape Caiuiva-al 3 of 9 (321)868-1248(Fax) TO°l CONTRACTOR: Name: Doug Shorts Address:420 Catamaran Drive #85 - - ............--------- Merritt Island, FL 32952 .......... ---------- Telephone:_321-460-3216 E-mail: doug.e.deviI@grnai1.com ------------- Notice shall be,deerned to have been given and received on the date the notice is physically received if given by hand delivery,or if notice is given by first class U.S.mail,postage prepaid,then notice shall be deemed to have been given an the date said notice was deposited.in the U.S.Mail addressed in The manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the nanie.of the person to whom notice is to be given or the address at Midi notice is to be received. 5.3 PublicRecard Pursuant to Section 1.19,0701,Florida Statutes and other applicable public records lam,Contractors ftt any records,documents,transactions,wiftings,papers,letters,computerized infonra tion and programs, maps,books, audio or video tapes, films, photographs, data processing software, writings or other rnatenal(s),regardless of the physical fortri,characteristics,or means of transmission,of Contractor related,directly or indirectly, to the services provided to the City under this Agreement and made or received pursuant to law or ordinance or in connection with the transaction of official business by the City,may be deerned to be a public record, whether in the possession or control.of die City or the Contractor. Said records,documents,transactions,writings, papers, letters,computerized info rmation and programs,maps,books,audio or video tapes,films,photographs,data p,mcessing software, wTitings or of material(s), regardless of the ",ical form, characteristics, or means of transmission of Contractor are subject to the fmvisions of Chapter 119, Florida Statutes,and may not be desimyed without the specific written apparia I of the City's designated custodian of public records. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TCI THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, the City Clerk at 321-868-1220 exL 207, ingoibr&@dtyofeapecanaverall.org, 100 Polk Avenue/P.O. Box 326, Cape Canaveral Florida,.32920. Contractor is required to arKI agrees to comply with public records lam. Contractor shall keep and maintain all public records required by the City to perform the services as agreed to herein Contractor shall provide the City; uport request fmrn the City Clerk copies of the requested records or allow the records to be inspected or copied within a reasonable tirre at a cost that does not exceed the cost provided bylaw, Contractor shall ensure that public records that ire exec V or confidential and exempt from public records disclosure Wdrenrnts are not disclosed except as authorized by law for the duration of the Agreement term. Upon completion of the Agreement, Contractor shall trawfer to the City,at no cost,all public records in possession of the Contractor,provided the transfer is requeste-d in witing by the City Clerk Upon such transfer, Cori tractorshall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure reclufternents,However,if the City Clerk does not request that the public records be transferred,the Contractor shall cor"we to keep and maintain the public records upon completion of the Agreement and-Ikffl meet all applicable requirements for retaining public records, All records stored electronically must be provided to the City,upon request from the City Clerk in a format that is compatible with the iriformation technology systerns of the City. Should the City not posse-&s public records relating to this Agreement%rhich are requested to be inspected or copied by the City or my o ,the City std]imrrediately notify Contractor of the request and the Contractor shall then provide such records to the City or allow the records to be inspected or copied within a reasonable firne. If the Contractor does not comply with a public records request,the, City may enforce this Section to the extent permitted by law. Contractor acknowledges that if the Contractor does not Cul tme&Leisure Services Independerl Contractor Agreermit City of Cape Canaveral 4 of9 provide the public records to the City within a reasonable time, Contractor may be subject to penalties under Section 1.19.1.0,Florida Statutes. ,Contractor acknowledges t if a civil action is filed against the Contractor to compel pnxtuction of public records relating to this Agreement,the cow may assess and award against Contractor the reasonable costs of enforcement, including reasonable attorney fps, All public records in connection with this Agreernent s W1,at any and all reasonable tunes during the non business ho °of the Contractor,be open and freely exhibited to the City for the purpose of examination, it,or otherwise. Failure by Contractor to grant such. public access and comply with public records lawsand/or requests shall be grounds for ii iate unilateral. cancellation of this Agreement by the City upon delivery of a written notice of cancellation. If the Contractor hails to comply with this Section,and the City nitst enforce Us Section,or the City suffm a third party award of attorney's fees or damages for violating Chapter 11.9, Florida Statutes, due to Contractor's failure to comply with this Section,the City shall collect from.Contractor prevailing party attorney's fees ard costs,and any darnages incurred by the City, for enforcing Us Section against Contractor. if applicable, the City shall also be entitled to r ei nt of all atto ys'fees and damages wfucla the City had to pay a third party because of the Contractor's failure to comply with this Section. The tenus and coalitions set forth in this Section skill survive the termination of this Agreernent. Sad Anmdnig of agnMot. Modifications or changes in this Agreernent must be in wnting and executed by the parties bound to this Agreement. 5,5 b''ttr. if a word,sentence,or paragraph herein shall be declared illegal,unenforceable,or unconstitutional,the said word,sentence,orparagraph,shall be severed from this Agreement,and this Agreernentshall be read as if said illegal.,unenforr;eable,or unconstitutional word,sentence,or paragraph did not exist. 5°6 A °s F Should any litigation• " concerning this Agreement be parties hereto, the parties agree to bear their own costs and attorney's fees. 5,7 EEpngdMmAWWpgLL This Agreerrent represents the entire and integrated Agreermit between the parties and supeivsedes all prior negotiations,representations,or Agreements,either oral orwritten,, all such matters shall be de merged into this Agreement. 5.8 Notwithstanduig any other provision set forth in this Agreement,nothing° contained in this Agreemerit shall be construed as a waiver of the City's right to Sovereign Imarrinity under Section 768.28,Florida Statutes or other limitations luiposed on the City's potential liability under state or federal law. As such,Contractor"agrees that the City shall riot be liable under this Agreernent for ptinitive darvages or interest for the period More judgrnent. Further,the City shall not be liable for any claim or judgnient,or portion thereof,to any one pemnformore thantwo hundredftusancidollars($200, ,00),oray claimoriudgment,orprrtionthereof,vhich, iAhen totaled with all other claints or°judgrients paid by the State or its agencies and subdivisions anis' out of the same incident or occurrence,exceeds the sum of three hundred thousand dol ($300,000.00). This ph sball survive termination of this Agreernent. ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY:INSURANCE 6.1 's CggMCQ§y#orL Upon the effective date of this Agreement, Contractor shall provide proof ofworker's co tion insurance in the minirrium ani by law(if ). 6.2 Profegsksol T i [y/ al jjgNhty° Upon the effective date of this Agreernent,Contractor shall submit proof of professional liability ctice and general liability Insurance to cover clairns for professional l` ility 1 ice(if applicable)and general liability because of bodily injuryor death of y n or damage nut of Agreement t or y Services provided b er, `1"he. ace shall have mirrimum limits of coverage of$1,000,000.00 per occurrence. Culture&I.e Services Indeperdmt Contractor Agreernent. City of Cape Cell 5Of9 6.3 Rg&drement& This paragraph shall be applicable to Sections 6.1.and 6°2. The insurance required by this Article stiall include the liability and coverage provided ire,or as required by law;whichever requirernents afford greater coverage. All of the policies of kisurance so required to be purchased anrl maintainedfor the certificates (or,other evidence thereof)shall contain a provision or endorsement that the coverage afforded will not be canceled., materially changed or renevaI refused until at least thirty(30)days'prior writtert notice has been given to the City and the Contractor by certified mail,return receipt requested. All such irtsurance shall remain in effect until flndl. payment.Unless agreed to by the City to the contrary,the City shall be named on the foregoing insurance policies as "additional insured,"except for fessio 1 liabifity/inalpractice coverage. The Contractor shall cause,its insurance carriers to furnish`insurance certificates specifying the types and arnounts of coverage in effectt pursuarit hero,the expiration dates of such policies,and a statement that no insurance under such policies will be canceled without thirty (30)days'prior written notice to the City in compliance with o provisions of this Agreement. For all Services perfonned ptniiant to this Agreement, Contractor st W- 1 conn usly maintain such insurance as required by Sections 6.1, 62,and 6.1 In the event Contractor fails to maintain said insurance, City,at its option,may elect to terrnir ote this A nt by mitten notice to Contractor. 6.4 Indmuficatim mid Hold>i @ . For all Services performed t to this Agreement,the Contractor agrees to fullest extent permitted by law,to'indemnify and hold ess the City and its employees, officers,and attorneys from and against all claims,losses,damages,personal injuries (including but not limited to death),or liability(including reasonable attorney's fees),directly or�indirectly arising from the negligent acts,errors, omissions,intentional or otherwise,arising out of or resulting from Contractoes performance ce of any Services pruvided purs-iiant to this Ageernent. 'l he 'inderrinification Mvided above shall obligate the Contractor to defend athis/her oexpense or to provide for such defense,at the option of the City,as the case rrny be,of any and all claims of liability and all 'ts and actions of every name and description ttrat maybe brought against the City or its employees,officers,arid attorneys which may result from the Services urider this Agreement whether the Services be perfortned by the Contractor or anyone directly or indirectly aaraployed by thern. In all events the City shall be permitted to choose legal counsel of its sole choice,the fees forwhich shall be reasonable and subject to and included with this indernnification provided herein, This paragraph 6.4 shall survive termination of this Agreement. 6.5 Waiver.. As ftiftfier consideration for the privileges afforded Contractor tinder this Agreement, including the privilege to conduct Services utilizing , City's recreational facilities, Contractor hereby assurnes all risk of personal injury or death and property darnage,or loss from whatever causes arising Write performing such Services. Contractor further releases the City and its officers, employees,agents arad volunteers, any and all tiab lity,claims,demands,actions,and causes of action whatsoever,including negligence,arising from Contractor's performance of this Agreetirnt,use of the City's recreational facilities and participation in Services. This release and waiver includes,but is not limited to,waiver of all clairris,suits,and causes of action based upon the inherent dangers irivolved in the Services or the negligence or tortious acts or conduct of the City,its officers,ernployees,agents and volunteer's or of third party participants in Services. "6 Standard of Care. In performing its Services t retia der,the Contractor will use that degree of care and still ordinarily exercised,under similar circurnstances by reputabler s of its profession practicing in the sarne or similar locality ARTICLE 7 TERMINATION AT'ION CIF' T AGREEMENT 7.1 Terntmlim by City. The City mayt ' e ft Agreement with five(S)days wri tten notice to Contractor. Such terrnination shall be at City's sole discretion,either for convenience or for cause. 7.2 Temimidon by Contmctor. With at least five(S)days written notice to the City,Contractor.may tertninate this Agreernent if the City fails to con-ply with the terms and conditions of this Agreemerl hi addition, with at least thirty(30)days written notice to the City, Contractor may terminate Agreernent for convenience. Culture&Leisure Services Irl hent Contractor Agrrer i-A City of Cape Cart Brat 6 of 9 N WITNESS WHEREOF, the parties hereto caused this Agreement to be executed as of the date first written above. CITY: CITY CSE CAPE CANAVERAL,FLORIDA ATTEST: d / ? a � gp –"°. -,- - — David L. Greene,City Manager ., Title: '41,1141 t.. : rd r f/t 6,me. Date: CONTRACTOR: Print Name: STATE OF FLORIDA COUNTY OF BREVAR:D The foregoing instrument was acknowledged before nae than ......_.._._ day of ) �'L-_-__-_ __ 20 .'b_ by who executed the foregoing instrument and acknowledged before me that he/she executed the same for the uses and purposes therein expressed and who is personally known to me or who has produced _ _as identification. (NOTARY SEAL) Notary Public Signa4ire Typed or Printed Notary Name: GLLYASAIGAYL°tHO AS y COMMISSION#GG 190987 EMPIRES:Aplij90,2022 Bonded Th ru Notary ric tl Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 8 of 9 Contractor will be responsible for notifying class participants at least five (5) days in advance of the termination of this Agreement and refunding any pre-paid registration fees for Services not rendered. 7.3 Termination by C onsent. This Agreement may be terminated by the mutual written consent of both parties at any time,and without penalty. 7.4 Upon Termination. Upon termination of this Agreement,the Contractor shall remit to the City its portion of any registration fees not yet remitted. Contractor shall be entitled to no additional compensation. Upon notice of termination,the Contractor shall cease all Services being provided hereunder. 7.5 Waiver. Failure of the City to insist upon performance within any time period or upon a proper level or quality of p--erfon-nance shall not act as a waiver of the City's right to later claim a failure to perform on the part of the Contractor. ARTICLE 8 TERM OF AGREEMENT 8.1 Term. The term of this Agreement shall commence on the Effective Date of this Agreement and end on December 3151 of the same year as the Effective Date, unless extended by mutual written agreement of the parties. ARTICLE 9 CONFLICTS 9.1 Conflicts. In the event that a conflict arises as to the contents of Exhibit"A"and the Agreement, the Agreement shall govern. [Signature Page Follows] Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 7 of 9 EXHIBIT baps DESCRIPTION OF SERVICES TO BE PERFORMED Scom of Services. The Contractor agrees to provide the.follovkig Services to the City: (a) Contractor agrees to offer Yoga/Lurnba Fitness Classes_ _._... _......__ to the public on an ongoing basis. The dates,times and location of such class shall be specified by the City in coordination with the Contractor. (b) Contractor shall be responsible for registration of participants. A copy of each registration form sball be provided to the Leisure Services Director. Eads class t containaminirnurnof participants. ts. (c) ConUactor shall provide the Leisure Services Director with a schedule at least fourteen(12)clays prior to the start of the class. Any changes to the program must be st brnitted with seven(7)clays advance notice. The Leisure e Services Director must approve the submitted schedule prior to the start of the class. (d) Contractor shall purchase and provide all equipment and niaterials needed to provide Services. Contractor shall be responsible for preparing/setting up prior to each class. (e) Contractor dkill be required to maintain a current class list with contact info tion for each participant. 11:shall be the Contractor's responsibility to properly notify participants of any changes to the class scliedule. (f) Contractor shall insure that all participants sign a release form, the specifications of which most be approved by City prior to commencement of Services. A copy of all release forrns signed by parlicipants shall,be forwdrded to the Leisure Services Director. (g) Contractor shall keep an accurate record of the date, time location of each class, the nLuiber of participants and.their names and contact info tion. Such information shall be provided to the Leisure* Services Director promptly upon request. (h) Contractor shall be responsible for hiring additionalinstrulctors, if necessary in order to insure a reasonable and proper instructor/participant ratio. (.i) Contractor shall.be responsible for any sTaonsorships obtained. Contractor shall fon&Pard information as to proposed sponsors to the City for approval prior to agreeing to sponsorship. (j) Contractor agrees to coordinate with the Leisure Services Director to ensure classes do not interfere with other City events. Contractor agrees thatsuch events might impact the prevision of Services. Cul"t�ists&Ik'.i Services Ind �(ait Corgractoi Yaertt City of Cape Canaveral 9 O