HomeMy WebLinkAboutParks and Recreation Instructor Independent Contractor Agreement - March 2015PARKS & RECREATION INSTRUCTOR
INDEPENDENT CONTRACTOR AGREEMENT
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THIS AGREEMENT is made this day off ' . t. 2015 ( "Effective Date "), by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation,
whose address is 1126 East State Road 434, Winter Springs, Florida ( "City "), and Joy Hinkle,
an individual, whose principal address is 3 1. 0 Northeast Triplet Drive, Casselberry, Florida
32707 ( "Contractor ").
RECITALS:
WHEREAS, City has certain recreational facilities available for use by the public; and
WHEREAS, Contractor desires to offer Zumba /Pilates /Yoga classes ( "Services ") for the
benefit of the public using the recreational facilities available to City; and
WHEREAS, City desires to allow Contractor to offer such Services to the public under
the terms and conditions in this Agreement;
IN CONSIDERATION of the mutual covenants and provisions, and other good, diverse,
and valuable considerations, the receipt and sufficiency all or which is acknowledged, the parties
desiring to be legally bound agree:
ARTICLE 1
GENERAL PROVISIONS
1.1 Engagement. City engages Contractor and Contractor agrees to perform the
Services outlined in EXHIBIT "A" for the stated fee arrangement. No prior or present
agreements or representations shall bind upon any of the parties unless incorporated in this
Agreement.
1.2 Due Diligence. Contractor acknowledges that she has investigated prior to
execution of this Agreement and satisfied herself on the conditions affecting the Services, the
availability of materials and labor, the cost, the requirements to obtain necessary insurance, and
the steps necessary to complete the Services. The Contractor warrants unto City that she has the
competence and abilities to carefully and faithfully complete the Services. The Contractor will
perform the Services with due and reasonable diligence consistent with sound professional
practices.
1.3 CCNA Services. Contractor warrants unto City that the Services being performed
under this Agreement do not constitute professional services as defined by Section
287.055(2)(a), Florida Statutes.
ARTICLE 2
REGISTRATION FEES COMPENSATION & PAYMENT TERMS
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2.1 Reration Fees. City, at its sole discretion, shall determine the registration
fees for Services rendered.
2.2 Compensation. Contractor and City agree to divide the registration fees derived
from the Services provided:
(a) Contractor will receive 80% of the registration fees derived from the Services.
(b) City will receive 20% of the registration fees derived from the Services.
(c) No other compensation will be due Contractor for the Services provided, unless
specifically agreed to by City in advance and in writing.
2.3 Payment Terms. Contractor shall collect all registration fees and shall forward
receipts for such fees to City's Parks and Recreation Program Coordinator within two (2)
business days of collection. Contractor shall pay to City 20% of the registration fees at the
conclusion. of the Services, or monthly, whichever occurs first. Contractor shall account for all
fees collected, including the registrant's name and payment method, and shall provide a copy of
such accounting records to the City simultaneously with such payment(s) to the City.
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
will be refunded.
ARTICLE 3
GENERAL CONDITIONS OF SERVICES
3.1 Provision of Services is a Private Undertaking. Regarding all Services
performed, it is specifically understood and agreed between the parties that the contractual
relationship between City and Contractor is such that Contractor is an independent contractor
and not an agent or employee of City. Nothing in this Agreement shall be interpreted to establish
any relationship, other than that of an independent contractor, between City and Contractor,
during or after performing the Services.
3.2 Warranty of Services. Contractor warrants unto City that she has sufficient
experience to properly complete the Services specified in this Agreement. Contractor shall
comply with all laws, ordinances and rules in performing the Services. Contractor shall pay all
taxes, fees, license fees required by law, including but not limited to occupational fees and
withholding taxes and assume all costs incident to the Services, except as provided herein.
3.3 City's -Responsibilities. The City shall cooperate with the Contractor by:
(a) Storing equipment and materials, after approval of Parks and Recreation
Program Coordinator. City shall not be responsible for any loss or damage
of equipment and materials stored by City.
(b) Locking up the Recreation Center or alternative location after each class.
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(c) Arranging for access to facilities as necessary to Contractor for provision
of the Services.
(d) Keeping the facilities provided in good repair, and providing custodial services to
the facilities.
ARTICLE 4
SUBCONTRACTS; ASSIGNMENT
4.1 Assignment and Subcontractin . Unless otherwise specifically required by this
Agreement, 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 City, except if 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, Contractor shall subcontract no portion or
all portions of the Services without the written consent of City. Nothing under this Agreement
shall be construed to give any rights or benefits in this Agreement to anyone other than City and
Contractor, and all duties and responsibilities under this Agreement will be for the sole and
exclusive benefit of City and Contractor and not for the benefit of any other party.
ARTICLE 5
MISCELLANEOUS PROVISIONS
5.1 Governing Law; Venue. This Contract shall be governed by the law of the State of
Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties
agree that the Agreement was consummated in Seminole County, and the site of the Services is
Seminole County. If any dispute concerning this Contract arises under Federal law, the venue
will be Orlando, Florida.
5.2 Notices. All projects, notices, demands, requests, instructions, approvals, and claims
shall be in writing. All notices of any type 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:
Kevin L. Smith
City Manager
City of Winter Springs
1 126 East State Road 434
Winter Springs, Florida 32708 -2799
407 - 327 -1800 (Phone)
407 - 327 -4753 (Fax)
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TO THE CONTRACTOR:
Joy Hinkle
310 Northeast Triplet Drive
Casselberry, Florida 32707
Telephone: '�% - 41
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 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. Under section 119.0701, Florida Statutes, Contractor agrees that all
documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data
processing software, or other material, regardless of the physical form, characteristics, or means
of transmission, made or received under this Agreement or for any funds provided by City under
this Agreement may be public records under Chapter 119, Florida Statutes. Contractor agrees to
keep and maintain all public records ordinarily and necessarily required by City to perform the
services required by this Agreement. Contractor also agrees to provide the public with access to
public records on the same terms and conditions that City would provide the records and at a cost
that does not exceed the cost provided by Chapter 119, Florida Statutes, or as otherwise provided
by law. Contractor shall also ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not disclosed except as authorized by
law. In addition, Contractor shall meet all requirements for retaining public records and transfer,
at no cost, to City all public records in possession of Contractor upon termination of this
Agreement and destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. All records stored electronically must be provided
to City in a format compatible with the information technology systems of City. If Contractor
does not comply with a public records request, City may enforce this Paragraph. If Contractor
fails to comply with this Paragraph, and City must enforce this Paragraph, or City suffers a third
party award of attorney's fees and /or damages for violating Chapter 119, Florida Statutes due to
Contractor's failure to comply with this Paragraph, City shall collect from Contractor prevailing
party attorney's fees and costs, and any damages incurred by the City, for enforcing this
Paragraph against Contractor. And, if applicable, City shall also be entitled to reimbursement of
all attorneys' fees and damages which City had to pay a third party because of Contractor's
failure to comply with this Paragraph. This Paragraph 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 Severabili . If a word, sentence, or paragraph is declared illegal, unenforceable, or
unconstitutional, the word, sentence, or paragraph will be severed from this Contract, and this
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Contract will be read as if the illegal, unenforceable, or unconstitutional word, sentence, or
paragraph did not exist.
5.6 Attorney's Fees. Should any litigation arise concerning this Agreement between the
parties, the parties agree to bear their own costs and attorney's fees.
5.7 Entire A -ereement. 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 Sovereitz n Imm Notwithstanding any other provision in this Agreement,
nothing 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. Contractor agrees that City shall not be liable under
this Agreement for punitive damages or interest for the period before judgment. Further, City
shall not be liable for any claim or judgment, or portion thereof, to any one person for over two
hundred thousand dollars ($200,000.00), or any claim or judgment, 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 three hundred thousand dollars
($300,000.00).
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 Liabili Upon the effective date
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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. The insurance shall have minimum limits of
coverage of $1,000,000.00 per occurrence.
6.3 This paragraph shall apply to Sections 6.1 and 6.2. The insurance required by this
Article shall include the liability and coverage provided, 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 City and Contractor
by certified mail, return receipt requested. All such insurance shall remain in effect until final
payment. Unless agreed to by City to the contrary, City shall be named on the insurance policies
as "additional insured," except for professional liability/malpractice coverage. Contractor shall
cause its insurance carriers to furnish insurance certificates specifying the types and amounts of
coverage in effect, the expiration dates of such policies, and a statement that no insurance under
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such policies will be canceled without thirty (30) days' prior written notice to City in compliance
with other provisions of this Agreement. For all Services performed under this Agreement,
Contractor shall continuously maintain such insurance in the amounts, type, and quality as
required by Sections 6.1, 6.2, and 6.3. If Contractor fails to maintain said insurance, City, at its
option, may elect to terminate this Agreement by written notice to Contractor.
6.4 The requirements of subparagraph 6.2 may be waived if the Contractor obtains an
appropriately executed waiver and release from each and every participant in the Services, upon
the showing of proper identification by each such participant. The waiver and release shall be in
the form attached to this Agreement as "Exhibit B ".
6.5 Indemnification and Hold Harmless. For all Services performed under this
Agreement, Contractor agrees to the fullest extent permitted by law, to indemnify and hold
harmless City and its employees, officers, and attorneys 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
under this Agreement.
The indemnification provided above shall obligate Contractor to defend at her own
expense or to provide for such defense, at the option of City of all claims of liability and all suits
and actions of every name and description that may be brought against City or its employees,
officers, and attorneys which may result from the Services under this Agreement whether the
Services are performed by the Contractor or anyone directly or indirectly employed by her. In
all events 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. This paragraph 6.4
shall survive termination of this Agreement.
6.6 Standard of Care. In performing her Services, 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 CONTRACT
7.1 Termination by City. City may terminate this Agreement, with or without cause,
and without penalty, with five (5) days written notice to Contractor. Such termination shall be at
City's sole discretion.
7.2 Termination by , Contractor. With at least five (5) days written notice to City,
Contractor may terminate this Agreement if City fails to comply with the terms and conditions of
this Agreement.
7.3 Termination by Consent. This agreement may be terminated by the mutual written
consent of both parties, and without penalty.
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7.4 Upon Termination. Upon termination of this Agreement, City shall pay Contractor,
as full payment for all Services performed and all expenses incurred, sums due and owing to
Contractor for payment of all Services completed to City's satisfaction through the termination
date. Upon notice of termination, Contractor shall cease all Services being provided.
7.5 Waiver. Failure of City to insist upon performance within any time period or upon a
proper level or quality of performance shall not act as a waiver of City's right to later claim a
failure to perform by Contractor.
ARTICLE 8
TERM OF AGREEMENT
8.1 Term. The teen of this Agreement shall commence on �(I1- `i , 2015 and
shall terminate after two (2) years unless extended by mutual written agreement of the parties.
ARTICLE 9
CONFLICTS%
9.1 Conflicts. If a conflict arises as to the contents of Exhibit "A" and the Agreement,
the Agreement shall govern.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed as
of the date first written above.
CONTRACTOR:
Joy Hinkle
Contrac (City
CITY:
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EXHIBIT "A"
DESCRIPTION OF SERVICES TO BE PERFORMED
Scope of Services. Contractor agrees to provide the following Services to City:
(a) Contractor agrees to offer "Zumba /Pilates /Yoga" fitness program to the public on an
ongoing basis.
(b) Contractor shall be responsible for registration of participants. A copy of each
registration form shall be provided to the Program Supervisor. Each class must contain a
minimum of four (4) participants.
(c) The classes will take place at the Winter Springs Civic Center on Wednesdays
between 7PM to 8PM. Any changes to the program must be submitted with seven (7) days
advance notice. The Program Supervisor must approve any proposed changes to the schedule.
(d) Contractor shall provide all equipment and materials needed to provide Services.
Contractor shall prepare /set -up prior to each class.
(e) 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 Program Director.
(f) Contractor shall keep an accurate record of the date, time and location of each class,
the number of participants and their names. Such information shall be provided to the Program
Supervisor promptly upon request.
(g) Contractor shall be responsible for any sponsorship obtained. Contractor shall
forward information as to proposed sponsors to City for approval prior to agreeing to
sponsorship.
(h) Contractor agrees to coordinate with the Program Supervisor to ensure program does
not interfere with other City events. Contractor agrees that such events might affect the
provision of Services.
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il CITY OF WINTER SPRINGS GENERAL WAIVER AND FULL RELEASE OF LIABILITY
In consideration of the risk of injury while participating in or attending any exercise program, sport, or physical activity at the
Winter Springs Civic Center, and as consideration for the right to participate in the Zumba, Pilaties Yoga class, I hereby, for myself,
my heirs, executors, administrators, assigns, or personal representatives, knowingly and voluntarily enter into this waiver and
release of liability and hereby waive any and all rights, claims or causes of action of any kind whatsoever arising out of my
participation in the Activity, and do hereby release and forever discharge the City of Winter Springs, located at 1126 E. State Road
434, Winter Springs, Florida, 32708, their affiliates, managers, members, agents, attorneys, staff, volunteers, heirs, representatives,
predecessors, successors and assigns, for any physical or psychological injury, including but not limited to illness, paralysis, death,
damages, economical or emotional loss, that I may suffer as a direct result of my participation in the aforementioned Activity.
I am voluntarily participating in the after mentioned Activity and I am participating in the Activity entirely at my own risk. I am
aware of the risks associated with participating in this Activity, which may include, but are not limited to, physical or psychological
injury, pain, suffering, illness, disfigurement, temporary or permanent disability, economic or emotional loss and death. I
understand that these injuries or outcomes may arise from my own or others' negligence, or the condition of the Activity location.
Nonetheless, I assume all related risks, both known or unknown to me, of my participation in this Activity.
I agree to indemnify and hold harmless the City of Winter Springs against any and all claims, suits or actions of any kind
whatsoever for liability, damages, compensation or otherwise brought by me or anyone on my behalf, including attorney's fees and
any related costs„ if litigation arises pursuant to any claims made by me or by anyone else acting on my behalf. If the City of
Winter Springs incurs any of these types of expenses, I agree to reimburse the City.
1 acknowledge that the City of Winter Springs and their directors, officers, employees, volunteers, representatives and agents are not
responsible for errors, omissions, acts or failures to act of any party of entity conducting a specific event or activity on behalf of the
City of Winter Springs.
I acknowledge that I have carefully read this "waiver and release" and fully understand that it is a release of
liability. I expressly agree to release and discharge the City of Winter Springs and all of its affiliates from any and
all claims and causes of actions and I agree to voluntarily give up or waive any right that I otherwise have to
bring a legal action against the City of Winter Springs for personal injury, including but not limited to death, or
property damage.
To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence on the part of the
City of Winter Springs, its agents and employees. In the event that I should require medical care or treatment, I agree to be
financially responsible for any costs incurred as a result of such treatment.
This Agreement was entered into at arm's - length, without duress or coercion, and is to be interpreted as an agreement between two
parties of equal bargaining strength. Both the Participant, , and the City of Winter
Springs agree that this Agreement is clear and unambiguous as to its terms, and that no other evidence will be used or admitted to
alter or explain its terms of this Agreement, but that it will be interpreted based on the language in accordance with the purposes for
which it is entered into.
In the event that any provision contained within this Release of Liability shall be deemed to be severable or invalid, or if any term,
condition, phrase or portion of this agreement shall be determined to be unlawful or otherwise unenforceable, the remainder of this
agreement shall remain in full effect, so long as the clause severed does not affect the intent of the parties. If a court should that any
provision of this agreement to be invalid or unenforceable, but that by limiting said provision it would become valid and
enforceable, then said provision shall be deemed to be written, construed and enforced as so limited.
In the event of an emergency, please contact the following person(s) in the order presented:
Emergency Contact Relationship Telephone Number
I the undersigned participant, affirm that I am of the age of 18 years or older, and that I am freely signing this agreement. I certify
that I have this agreement, that I fully understand its contents and that this release cannot be modified orally. I am aware that this is
a release of liability and a contract and that I am signing it of my own free will.
Participant's Name /Address:
Participant's Signature/Date: