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HomeMy WebLinkAboutContracts & Agreements_248-2023ICA-9.1 (1/4/22) INDEPENDENT CONTRACTOR AGREEMENT This agreement for the provision of Zumba Gold and WERQ dance and fitness classes ("Agreement") is made and entered into this 14th day of December 2023, ("Effective Date") by and between the City of Redlands, a municipal corporation, (hereinafter "City") and Melanie Grove, an individual, (hereinafter "Contractor"). City and Contractor are sometimes individually referred to herein as a "Party" and together as the "Parties." RECITALS WHEREAS, Contractor has expressed an interest in developing and conducting Zumba Gold and WERQ dance and fitness classes for City's Recreation Division; and WHEREAS, Contractor has represented to City that he has the requisite experience, special knowledge, qualifications, certifications and professional expertise to develop and conduct Zumba Gold and WERQ dance and fitness classes services consistent with the standards generally recognized as being employed by professionals in the same discipline in California; NOW, THEREFORE, in consideration of the mutual promises contained herein, the City and Contractor agree as follows: AGREEMENT Section 1. Term. The term of this Agreement shall commence on the Effective Date of this Agreement and be for a period of three (3) years, unless earlier terminated as provided for herein. Section 2. Services. A. City hereby engages Contractor to develop and conduct Zumba Gold and WERQ dance and fitness classes for the City's Recreation Division (the "Services"). The Zumba Gold and WERQ dance and fitness classes shall be conducted at the City's Redlands Community Center, Senior Center and the Joslyn Senior Center. Contractor shall determine the method, details and means of performing the Services and shall advise City of the same prior to the provision of any Services under this Agreement. Contractor further agrees to perform the Services to the best of his ability and in an efficient, safe, and competent manner. Contractor represents and warrants that he (and any employees or agents of Contractor authorized under Section 6 below) has/have the requisite experience, special knowledge, qualifications, certifications, and professional expertise to perform the Services consistent with the standards generally recognized as being employed by professionals in the same discipline in California. B. The Services may be scheduled by Contractor for any times, during business hours, depending upon the availability of the City facility. C. As compensation for providing the Services, City shall register participants and collect registration fees for participants in Contractor's Zumba Gold and WERQ dance and fitness classes. City shall pay Contractor seventy percent (70%) of the fees collected for such stretch therapy workshops no later than twenty-one (21) days after the registration period ends. Contractor shall be responsible for payment of one hundred percent (100%) of the fees paid by a participant 1 ICA-9.1 (1/4/22) in connection with any refund to the participant. City shall have no obligation for refunds. D. Contractor is solely responsible for all tax consequences, penalties, and obligations related to City's compensation to Contractor for the Services. Contractor agrees to indemnify City for any claims, losses, costs, fees, liabilities, damages, or injuries suffered by City arising out of Contractor's liabilities for tax consequences, penalties, or obligations. E. Contractor shall be solely and fully responsible for all costs and expenses, including without limitation for equipment, incident to Contractor's performance of the Services. F. All of Contractor's Services will be at Contractor's own risk and Contractor is responsible to guard against physical, financial, and other risks as appropriate. Section 3. Independent Contractor. It is the express intent of the Parties that, at all times, Contractor (and any employees or agents of Contractor authorized under Section 6 below) is/are and shall act as and remain during the term of this Agreement, an independent contractor and shall not be an employee, officer, parent, joint venture, or agent of City by virtue of this Agreement. Contractor acknowledges that (a) Contractor is free from the control and direction of City in connection with the performance of Services; (b) the Services provided by Contractor are outside the usual course of City's business; and (c) Contractor is customarily engaged in an independently established trade, occupation, or business of the same nature as Contractor performs for City. Contractor agrees its provision of the Services pursuant to this Agreement will not be exclusive to City during the term of this Agreement and Contractor is free to provide services to other entities. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Contractor (or any employees or agents of Contractor authorized under Section 6 below) and City. The Parties acknowledge that Contractor (and any employees or agents of Contractor authorized under Section 6 below) is/are not a City employee for State tax, Federal tax or any other purpose. Section 4. No Employment Benefits. The Parties understand that City shall provide no employment benefits to Contractor (or any employees or agents of Contractor authorized under Section 6 below). City shall make no state or federal unemployment compensation payments and shall not obtain workers' compensation insurance on behalf of Contractor (or any employees or agents of Contractor authorized under Section 6 below), and shall be Contractor's sole responsibility to do so. Section 5. Publicity. Any Contractor -created marketing materials must be approved in writing by City before distribution and use. City reserves the right to broadcast, televise and/or photograph Contractor during Zumba Gold and WERQ dance and fitness classes for the purpose of marketing. Section 6. Contractor's Employees. No other employees or agents of Contractor shall participate in the performance of the Services without the prior written consent of City. If City gives Contractor prior written consent for other employees or agents of Contractor to participate in the performance of the Services, to the fullest extent provided by law, Contractor agrees to defend, indemnify and hold City harmless from any claims, demands, liabilities, damages, penalties or taxes resulting from Contractor's misclassification of any such employees or agents 2 ICA-9.1 (1/4/22) (as independent contractors) who provide Services under this Agreement. Contractor assumes full responsibility for the acts or omissions of its employees or agents, if any. Section 7. Business License. Contractor shall obtain a City of Redlands business license as a pre -condition of performing the Services. Section 8. Compliance with Applicable Law. Contractor represents and warrants that Contractor (and any employees or agents of Contractor authorized under Section 6 above) will comply with all federal, state, and local laws, regulations, ordinances, mandates, and orders, and obtain all licenses and certificates required to carry out the Services to be performed under this Agreement. Section 9. Termination. City shall have the right to terminate this Agreement, with or without cause, upon twenty (20) days prior written notice to Contractor. City shall have no liability for any claims or damages resulting to Contractor as a result of any exercise by City of its right to terminate this Agreement. Section 10. Notices. Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail; in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section: CITY: City Clerk City of Redlands PO Box 3005 Redlands, CA 92373 jdonaldson@cityofredlands.org 909-798-7531 CONTRACTOR: Melanie Grove 1739 Fairmont Dr. Redlands, CA 92373 Melanie_roma@yahoo.com 951-212-1518 Section 11. Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold City, its elected officials, officers, employees and agents ("Indemnified Parties") free and harmless from and against any and all actions, damages, losses, causes of action and liability imposed or claimed relating to the injury or death of any person or damage to any property, including attorneys' fees and other legal expenses, ("Claim(s)") arising out of Contractor's (or any employees or agents of Contractor authorized under Section 6 above) performance of the Services or this Agreement; except that this obligation shall not cover that portion of a Claim(s) to the extent the gross negligence or willful misconduct of the Indemnified Parties' or any of them caused or contributed to such Claim(s). The provisions of this section shall survive the termination or expiration of this Agreement. Section 12. Limitation of City's Liability. City's financial obligations under this Agreement shall be limited to the payment of the compensation provided in this Agreement. 3 ICA-9.1 (1/4/22) Notwithstanding any other provision of this Agreement, in no event, shall City be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including, but not limited to, lost profits or revenue, or medical expenses, arising out of or in connection with this Agreement for the Services performed in connection with this Agreement, except to the extent caused by City's gross negligence or willful misconduct. The provisions of this section shall survive the termination or expiration of this Agreement. Section 13. Entire Agreement/Amendment/Waiver. This Agreement represents the entire Agreement of the Parties as to the matters contained herein, and supersedes all prior understandings, negotiations, representations, or agreements regarding the subject matter of this Agreement. Any amendment of this Agreement shall be effective only if it is in writing and signed by the Parties. The failure a Party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of either Party thereafter to enforce each and every provision hereof in accordance with its terms. Section 14. Assignment. This Agreement shall not be assigned without the prior written consent of City. Any assignment, or attempted assignment, without such prior consent, shall be null and void and, at the option of City, result in the immediate termination of this Agreement. Section 15. Insurance. Contractor shall obtain and maintain during the term of this Agreement all insurance required by this Section and shall submit to City certificates of insurance and appropriate endorsements evidencing that the insurance is in force and effect. All endorsements must waive any right to subrogation against the City. Evidence of such insurance shall be provided to City within fifteen (15) days of the Effective Date of this Agreement and approved by the City prior to commencement of any Services. Acceptance of the certificates by City shall not relieve Contractor of any of the insurance requirements contained herein, decrease the liability of Contractor, nor operate as a potential limitation of liability. Contractor shall be fully responsible for all premiums, deductibles, and any self -insured retentions. A. If applicable, workers' compensation and employer's liability insurance for its employees throughout the term of this Agreement pursuant to Labor Code Sections 1860 and 3700, and in amounts which satisfy statutory requirements. B. Comprehensive and general liability insurance with a carrier acceptable to City in an amounts not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate for public liability, property damage and personal injury. Such insurance shall not be cancelled unless thirty (30) days prior written notice is provided to City. C. Except for workers' compensation and employer's liability insurance, City shall be named as an additional insured on all policies and such insurance shall be primary and non- contributing to any insurance or self-insurance maintained by City. Section 16. Attorneys' Fees. In the event any action is commenced to enforce or interpret the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs or other relief, be entitled to recover its reasonable attorneys' fees, including fees for use of in-house counsel by a Party. 4 ICA-9.1 (1/4/22) Section 17. Force Majeure. A "Force Majeure Event" includes, but is not limited to, any fire, flood, act of God (e.g., earthquake, tsunami, volcanic eruption, hurricane, tornado, lightning, etc.), governmental action, or acts or threats of the following: terrorism, epidemic, pandemic, viral/ infectious disease outbreak, war, revolution, natural disaster, riot, strike, lockdown, or any event beyond either Party's reasonable control that makes performance impossible, illegal, impractical, unsafe, or commercially infeasible. If a Force Majeure Event occurs, the impacted Party shall give written notice to the other Party within ten (10) days of learning of the basis for non-performance. The Parties will meet to discuss how best to proceed given the circumstances. If one Party's performance is excused as a result of a Force Majeure Event, the other Party's performance is likewise excused; however, City shall pay Contractor for all outstanding undisputed amounts as set forth in Section 2 (C). Section 18. Severability. If any term, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and effect, and shall not be affected, impaired, or invalidated in any way. Section 19. Governing Law and Venue. This Agreement shall be governed by, and the rights, duties and obligations of the Parties shall be determined and enforced in accordance with, the laws of the State of California. The Parties further agree that any action or proceeding brought to enforce this Agreement shall be maintained in San Bernardino County. CITY OF REDLANDS awi-j10.2 Charles M. Duggan, Jr., ATTEST: y nne Donaldson, City Clerk nager 5 CONTRACTOR