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HomeMy WebLinkAboutcls_Scogin_ICA_2019 CULTURE& LEISURE SERVICES INDEPENDENTCONT RACTOR AGREEMENT THIS AGREEMENT is made this I st day of January 2019 ("Effective Date"), by and between the CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation, whose address is 100 Polk Avenue, Cape Canaveral Florida, 32920 ("City"), and Heather A. Scogin, whose address is 10 Point View Place, Cocoa, Florida 32926("Contractor"). RECITALS: WHEREAS, the City has certain recreational facilities available for use by the public-,and WHEREAS, the Contractor desires to offer Beach Yoga Classes ("Services") for the benefit of the public using the City's recreational facilities;and WHEREAS,the City desires to allow the Contractor to offer such Services to the public under the terms and conditions set forth in this Agreement. IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, diverse, and valuable considerations, the receipt and sufficiency all or which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 Engagement. The City hereby engages the Contractor and the Contractor agrees to perform the - Services outlined in EXHIBIT"A"for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.2 Due Difigtnee, The Contractor acknowledges that lie/she has conducted an investigation prior to execution of this Agreement and satisfied himself/herself as to the conditions affecting the Services, the conditions of the facilities in which the Services are to be provided, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance as set forth herein,and the steps necessary to complete the Services herein. The Contractor warrants unto the City that he/she has the competence and abilities to carefully and faithfully complete the Services set forth herein. The Contractor will perform the Services with due and reasonable diligence consistent with sound professional practices. 1.3 CCNA Services. The Contractor warrants unto the City that the Services being performed pursuant to this Agreement do not constitute professional services as defined by Section 287.055(2)(a),Florida Statutes. ARTICLE 2 REGISTRATION FEES,COMPENSATION,&PAYMENT TERMS 2.1 Registration Fees. Contractor acknowledges that the City requires Contractors who are performing Culture& Leisure program services to charge fees that are reasonable in order to encourage participants to register and frequently participate in the Culture & Leisure program services being offered by Contractor at City-owned facilities. In furtherance of this objective, Contractor shall propose registration fees to the City in writing. Upon receipt of the proposed registration fees, the City will consult with the Contractor regarding the proposed fees. Registration fees shall be subject to the City's final approval and such approval shall be at the City's sole discretion. All participants shall be required to pay the registration fee approved by the City. 2.2 Compensation. Contractor and City agree to divide the registration fees derived from the Services provided hereunder as follows: Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral I of 9 (a) Contractor shall receive 75%of the registration fees derived from the Services. (b) The City shall receive 25%of the registration fees derived from the Services. (c) No other compensation shall be due Contractor for the Services provided under this Agreement, unless specifically agreed to by City in advance and in writing. 2.3 Payment Terms. Contractor shall collect all registration fees from participants. Contractor agrees to maintain a report with the names of all class participants, the number of classes attended by each class participant during the month, the amount of registration fees collected from each participant, and the payment method. Registration fees paid by check shall be made payable to the Contractor. On the first day of each month, Contractor shall submit such previous month's report to the City's Culture & Leisure Services Department. The City shall generate an invoice detailing the amount of registration fees to be paid by Contractor to the City based upon the percentage agreed upon in Section 2.2. The Contractor shall submit the invoiced amount to the City no later than thirty (30) days following the date of the invoice. Contractor agrees that if the required minimum number of participants for Services is not met,Contractor is not entitled to any compensation and any registration fees paid for such Services shall be refunded. 2.4 Waiver Form. During the Contractor's registration process, Contractor shall require that all participants execute the registration form provided to Contractor by the Culture&Leisure Services Director,which contains a waiver and release, as a condition of allowing participant to receive or participate in any Services offered by the Contractor at or upon any City facilities or properties. If the City determines that a participant is receiving Services at or upon any City facilities or properties under this Agreement without having executed a registration form,the City shall have the right to prohibit that participant from receiving Services until such time as the participant submits to the City a fully executed form. ARTICLE 3 GENERAL CONDITIONS OF SERVICES 3.1 Provision of Services is a Private Undertakin With regard to any and all Services performed hereunder,it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and the Contractor is such that the Contractor is an independent contractor and not an agent of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor between the City and the Contractor during or after the performance of the Services under this Agreement. 3.2 Warranty of Services. The Contractor hereby warrants unto the City that he/she has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. The Contractor shall comply with all laws,ordinances,rules,and regulations in the performance of the Services. The Contractor shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes; obtain a business tax receipt; and assume all costs incident to the Services, except as provided herein. 3.3 Background Checks. A background screening shall be completed if Contractor's Services may be rendered to vulnerable persons,including children,the elderly,and disabled individuals. Contractor must sign the statement set forth on the Form authorizing the City to conduct a background screening. Contractor may not commence rendering Services until after completion of the screening. Contractor shall inform the City immediately if arrested for any disqualifying offenses. The City may require a new background screening, at its discretion, upon annual renewal of this Agreement. 3.4 City's Responsibilities. The City shall cooperate with the Contractor by: Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 2 of 9 (a) Storing equipment and materials,after approval of the Culture&Leisure Services Director. The City shall not be responsible for any loss or damage of equipment 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 the facilities provided in good repair,and providing custodial services to the facilities. (e) Assisting with marketing the Services by providing written materials and photographs to include in City mediums,such as the newsletter or on the City's website. ARTICLE 4 SUBCONTRACT&ASSIGNMENT 4.1 Assignment and Subcontracting. Unless otherwise specifically required by this Agreement, the Contractor shall not assign, Sublet, or transfer any rights or Services under or interest in (including, but without limitations,moneys that may become due)this Agreement without the written consent of the City,except to the extent that any assignment, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract any portion or all of the Services without the written consent of the City. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and the Contractor, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the City and the Contractor and not for the benefit of any other party. Substitute instructors may not be used by Contractor to render services unless approved by the Culture & Leisure Services Director or his or her designee ("Director"). Substitute instructors may only render Services after the successful completion of a background screening in the same manner as provided for Contractor. ARTICLE 5 MISCELLANEOUS PROVISIONS 5.1 Governing Law; Venue. This Agreement shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Brevard County,Florida. The parties agree that the Agreement was consummated in Brevard County, and the site of the Services is Brevard County. If any dispute concerning this Agreement arises under Federal law,the venue will be Orlando,Florida. 5.2 Notices. All projects hereunder,all notices,demands,requests,instructions,approvals,and claims shall be in writing. All notices of any type hereunder shall be given by U.S.mail or by hand delivery to an individual authorized to receive mail for the below listed individuals,all to the following individuals at the following locations: TO THE 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) (321)868-1248 (Fax) TO THE CONTRACTOR: Culture&Leisure Services Independent Contractor Agreernent City of Cape Canaveral 3 of 9 Heather A. Scogin 10 Point View Place Cocoa,FL, 32926 Telephone: 305-333-9393 E-mail:heatheranikaC&gniail.coni Notice shall be deemed 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 upon 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 name of the person to whom notice is to be given or the address at which notice is to be received. 5.3 Public Record. Pursuant to Section 119.0701, Florida Statutes and other applicable public records laws,Contractor agrees that any records,documents,transactions,writings,papers,letters,computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, 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 deemed to be a public record, whether in the possession or control of the City or the Contractor. Said records, documents, transactions, writings, papers, letters, computerized information and programs, maps,books,audio or video tapes, films,photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission of Contractor are subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval 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 TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, the City Clerk, at 321-868-1220 ext. 207, m.goforth(4)cityofeapecanaveral.org, 100 Polk Avenue/P.O, Box 326, Cape Canaveral Florida,32920. Contractor is required to and agrees to comply with public records laws. 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, upon request from the City Clerk,copies of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by law. Contractor shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term. Upon completion of the Agreement, Contractor shall transfer to the City,at no cost,all public records in possession of the Contractor,provided the transfer is requested in writing by the City Clerk. Upon such transfer,Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. However, if the City Clerk does not request that the public records be transferred, the Contractor shall continue to keep and maintain the public records upon completion of the Agreement and shall 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 information technology systems of the City. Should the City not possess public records relating to this Agreement which are requested to be inspected or copied by the City or any other person,the City shall immediately 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 time. 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 provide the public records to the City within a reasonable time, the Contractor may be subject to penalties under Section 119.10,Florida Statutes. The Contractor acknowledges that if a civil action is filed against the Contractor to compel production of public records relating to this Agreement, the court may assess and award against Contractor the reasonable costs of enforcement, including reasonable attorney fees. All public records in connection with this Agreement shall, at any and all reasonable times during the normal business hours of the Contractor, be open and Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 4 of 9 freely exhibited to the City for the purpose of examination, audit, or otherwise. Failure by Contractor to grant such public access and comply with public records laws and/or requests shall be grounds for immediate unilateral cancellation of this Agreement by the City upon delivery of a written notice of cancellation. If the Contractor fails to comply with this Section, and the City must enforce this Section, or the City suffers a third party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to Conti-actor's failure to comply with this Section, the City shall collect from Contractor prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section against Contractor. And, if applicable, the City shall also be entitled to reimbursement of all attorneys' fees and damages which the City had to pay a third party because of the Conti-actor's failure to comply with this Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement. 5.4 Amendment of Agreement. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 5.5 Severability. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional,the said word,sentence,or paragraph shall be severed from this Agreement,and this Agreement shall be read as if said illegal,unenforceable,or unconstitutional word,sentence,or paragraph did not exist. 5.6 Attornellik �ees, Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 5.7 Entire Agreement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations,representations,or Agreements,either oral or written,and all such matters shall be deemed merged into this Agreement. 5.8 Sovereign_lrrimunitj. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to Sovereign Immunity under Section 768.28, Florida Statutes or other limitations imposed on the City's potential liability under state or federal law. As such,Contractor agrees that the City shall not be liable Linder this Agreement for punitive damages or interest for the period before judgment. Further,the City shall not be liable for any claim or judgment,or portion thereof,to any one person for more than two hundred thousand dollars($200,000.00),or any claim orjudgment,or portion thereof,which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence,exceeds the sum of three hundred thousand dollars($300,000.00). This paragraph shall survive termination of this Agreement. ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY; INSURANCE 6.1 Worker's Compensation. Upon the effective date of this Agreement, Contractor shall provide proof of worker's compensation insurance in the minimum amount required by law(if required). 6.2 Professional Liability/Malpractice and General L,iabilitYe Upon the effective date of this Agreement,Contractor shall submit proof of professional liability/malpractice and general liability insurance to cover claims for professional liability/malpractice (if applicable) and general liability because of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum limits of coverage of$1,000,000.00 per occurrence. 6.3 RggAjK2MgA1L This paragraph shall be applicable to Sections 6.1 and 6.2. The insurance required by this Article shall include the liability and coverage provided herein,or as required by law,whichever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty(30) days' prior written notice has been given to the City and the Contractor by certified mail, return receipt requested. All such insurance shall remain in effect until final Culture&Leisure Services Independent Conti-actor Agreement City of Cape Canaveral 5 of 9 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 professional liability/malpractice coverage. The Contractor shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, 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 other provisions of this Agreement. For all Services performed pursuant to this Agreement, the Contractor shall continuously maintain such insurance as required by Sections 6.1, 6.2, and 6.3. In the event Contractor fails to maintain said insurance, City, at its option, may elect to terminate this Agreement by written notice to Contractor. 6.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement,the Contractor agrees to the fullest extent permitted by law,to indemnify and hold harmless 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 Contractor's performance of any Services provided pursuant to this Agreement. The indemnification provided above shall obligate the Contractor to defend at his/her own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees,officers,and attorneys which may result from the Services under this Agreement whether the Services be performed by the Contractor or anyone directly or indirectly employed by them. In all events the City shall be permitted to choose legal counsel of its sole choice,the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This paragraph 6.4 shall survive termination of this Agreement. 6.5 Waiver. As further consideration for the privileges afforded Contractor under this Agreement, including the privilege to conduct Services utilizing the City's recreational facilities, Contractor hereby assumes all risk of personal injury or death and property damage or loss from whatever causes arising while performing such Services. Contractor further releases the City and its officers, employees, agents and volunteers from any and all liability, claims,demands, actions, and causes of action whatsoever, including negligence, arising ftom Contractor's performance of this Agreement,use of the City's recreational facilities and participation in Services. This release and waiver includes,but is not limited to,waiver of all claims,suits,and causes of action based upon the inherent dangers involved in the Services and/or the negligence or tortious acts or conduct of the City, its officers,employees, agents and volunteers or of third party participants in Services. 6.6 Standard of Care. In performing its Services hereunder,the Contractor will use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. ARTICLE 7 TERMINATION OF THE AGREEMENT 7.1 Termingg2flh1qre . The City may terminate this Agement with five(5)days written notice to _ jLL Contractor. Such termination shall be at City's sole discretion,either for convenience or for cause. 7.2 Termination by Contractor. With at least five(5)days written notice to the City,Contractor may terminate this Agreement if the City fails to comply with the terms and conditions of this Agreement. In addition, with at least thirty (30) days written notice to the City, Contractor may terminate this Agreement for convenience. 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 Consent. This Agreement may be terminated by the mutual written consent of both parties at any time,and without penalty. Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 6 of 9 7.4 URon 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 perforniance 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 3111 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 IN WITNESS WHEREOF,the parties hereto caused this Agreement to be executed as of the date first written above. CITY: CITY OF CAPE CANAVERAL,FLORIDA ATTEST: 0( David L. Greene,C ty Manager Title: I7ePut y CityCLerk— Date: CONTRACTOR: Print Name:Heather A. Scogi STATE OF FLORIDA COUNTY OF BREVARD The foregoing instrument was acknowledged before me this a day of _2L _C,_f7;by Heather A. Scogin who executed the foregoing instrument and acknowledged before me that he/she executed the same for the uses and purposes therein expressed and who has produced Florida Driver's License as identification. (NOTARY SEAL) Notary Public Signatur�- Typed or Printed Notary Name: MOLLY Al IL THOMAS Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 8 of 9 EXHIBIT"A" DESCRIPTION OF SERVICES TO BE PERFORMED Scope of Services, The Contractor agrees to provide the following Services to the City: (a) Contractor agrees to offer Beach Yoga 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 shall be provided to the Leisure Services Director. Each class must contain a minimum of I participants. (e) Contractor shall provide the Leisure Services Director with a schedule at least fourteen (14) days prior to the start of the class. Any changes to the program must be submitted with seven (7) days advance notice. The Leisure Services Director must approve the submitted schedule prior to the start of the class. (d) Contractor shall purchase and provide all equipment and materials needed to provide Services. Contractor shall be responsible for preparing/setting up prior to each class. (e) Contractor shall be required to maintain a current class list with contact information for each participant. It shall be the Contractor's responsibility to properly notify participants of any changes to the class schedule. (f) Contractor shall insure that all participants sign a release form, the specifications of which must be approved by City prior to commencement of Services. A copy of all release forms signed by participants shall be forwarded to the Leisure Services Director. (g) Contractor shall keep an accurate record of the date, time and location of each class, the number of participants and their names and contact information. Such information shall be provided to the Leisure Services Director promptly upon request. (h) Contractor shall be responsible for hiring additional instructors, if necessary, in order to insure a reasonable and proper instructor/participant ratio. (i) Contractor shall be responsible for any sponsorships obtained. Contractor shall forward information as to proposed sponsors to the City for approval prior to agreeing to sponsorship. 0) Contractor agrees to coordinate with the Leisure Services Director to ensure classes do not interfere with other City events. Contractor agrees that such events might impact the provision of Services. Culture&Leisure Services Independent Contractor Agreement City of Cape Canaveral 9 of 9