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HomeMy WebLinkAboutLeamy, Susan Parks and Recreation Instructor (Pound Fitness) 2017 11 15PARKS & RECREATION INSTRUCTOR INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT is made this day of , 2017 ("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 Susan Leamy, an individual, whose principal address is 1635 Augusta Way, Casselberry, Florida 32707 ("Contractor"). RECITALS: WHEREAS, City has certain indoor recreational facilities available for use by the public; and WHEREAS, Contractor desires to offer Pound fitness classes ("Services"), which incorporates lightly weighted workout drumsticks into exercise routines, for the benefit of the public using the indoor 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 Enuayement. 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 Diliaence. 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 and maintain 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. Parks & Recreation Instructor Agreement City of Winter Springs Cont /City f�� Page 1 of 9 ARTICLE 2 REGISTRATION FEES. COMPENSATION, & PAYMENT TERMS 2.1 Registration Fees. City, at its sole discretion, shall determine the registration fees for Services rendered. Registration fees shall be no less than five dollars ($5) per Participant, per class. 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 Pavment 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 Warrantv 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: Parks & Recreation Instructor Agreement Contra /City City of Winter Springs l Page 2 of 9 k� (a) Arranging for access to indoor recreational facilities at the Winter Springs Civic Center, located at 400 N. Edgemon Avenue, Winter Springs, Florida 32708, as necessary to Contractor for provision of the Services. If the indoor recreational facilities at the Winter Springs Civic Center are not available for any particular day for which Services are scheduled to occur, whether due to scheduled City events, or as otherwise determined by the City, the City shall utilize its best efforts to give Contractor seven (7) days' advance notice of a need for class cancellation(s). (b) Keeping the indoor recreational facilities provided in good repair, and providing custodial services to the facilities in the Winter Springs Civic Center. ARTICLE 4 SUBCONTRACTS; ASSIGNMENT 4.1 Assignment and Subcontracting. 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 1VIISCELLANEOUS PROVISIONS 5.1 Governinz 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: Parks & Recreation Instructor Agreement City of Winter Springs Con . /-k, /City Page 3 of 9 TO THE CITY: Kevin L. Smith City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708-2799 407-327-1800 (Phone) 407-327-4753 (Fax) TO THE CONTRACTOR: Susan Leamy 1635 Augusta Way Casselberry, FL 32707 �Olular phone home phone 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. 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 (407) 327-5955, CITYCLERKDEPARTMENT(ri;WINTERSPRINGSFL.ORG, 1126 EAST STATE ROAD 434, FLORIDA 32708. Parks & Recreation Instructor Agreement City of Winter Springs !City Page 4 of 9 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 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 Contractor'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 Contractor'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 Severabilitv. 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 Contract will be read as if the illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. Parks & Recreation Instructor Agreement City of Winter Springs /City Page 5 of 9 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 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 Immunih'. 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). This paragraph shall survive termination of this Agreement ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 6.1 Worker's Comvensation. 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 Liabilih-/Malpractice and General Liability. 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. 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 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, Parks & Recreation Instructor Agreement City of Winter Springs +k�l /City Page 6 of 9 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. 6.5 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 6.5 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 Cite. 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. 7.4 Upon Termination. Upon termination of this Agreement, Contractor shall pay City all sums due and owing to City in accordance with Sections 2.2 and 2.3 of this Agreement through the termination date. Upon notice of termination, Contractor shall cease all Services being provided. I Parks & Recreation Instructor Agreement City of winter Springs /City Page 7 of 9 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 term of this Agreement shall commence on January 1, 2018 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. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed as of the date first written above. CONTRACTOR: SUSAN LEAMY Susan eamy r rp Dated: Cre r /City CITY: CITY OF WINTER SPRINGS, FLORIDA f,. By: Kevinj'.'. Smith, �10 Manager Dated: { Parks & Recreation Instructor Agreement City of Winter Springs Page 8 of 9 EXHIBIT "A" DESCRIPTION OF SERVICES TO BE PERFORMED Scone of Services. Contractor agrees to provide the following Services to City: (a) Contractor agrees to offer a "Pound" fitness program, which is a workout class incorporating lightly weighted workout drumsticks ("Ripstix") into exercise routines, 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. (e) The Services will take place at the Winter Springs Civic Center, located at 400 N. Edgemon Avenue, Winter Springs, Florida 32708, on Mondays and Wednesdays from 6p.m. — 7p.m. The parties may mutually agree to change the time and days that the Services are to be performed. 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 Ripstix for all Participants. Otherwise, Participants shall provide their own individual equipment and materials, if any. The City shall not be responsible for any loss or damage of equipment and materials brought to the City facilities for use by Contractor or Participants. Contractor shall keep the grounds where Services are offered free of litter, trash, paper and waste at all times. Any litter, trash, paper, waste, equipment and materials resulting from Contractor or Participants shall be taken with the Contractor when the Contractor leaves. (e) 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. (f) 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. (g) 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. Parks & Recreation instructor Agreement City of winter Springs C,a��; /City 1 Page 9 of 9