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2300 - Scott Watanbe - Instruction, Coach Services City of Rosemead AGREEMENT FOR INSTRUCTION, COACHING OR INSTRUCTIONAL SERVICES This AGREEMENT, is made and effective as of February 1, 2018, between the City of Rosemead, a municipal corporation ("AGENCY") and Scott Watanabe, an individual contract instructor ("CONTRACTOR"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: TERM This AGREEMENT shall commence on February 1, 2018 and shall remain and continue in effect until tasks described herein are completed, but in no event later than January 1, 2019, unless sooner terminated pursuant to the provisions of this AGREEMENT. II. SERVICES CONTRACTOR shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. CONTRACTOR shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. All tasks are to be perform at Rosemead Aquatic Center and/or Splash Zone. III. PERFORMANCE CONTRACTOR shall at all times faithfully, competently and to the best of his/her ability, experience, and talent, perform all tasks described herein. CONTRACTOR shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONTRACTOR hereunder in meeting its obligations under this AGREEMENT. IV. AGENCY REPRESENTATIVE AGENCY'S Director of Parks & Recreation shall represent AGENCY in all matters pertaining to the administration of this AGREEMENT, including review and approval of all changes to the AGREEMENT which do not require AGENCY's governing body approval. V. PAYMENT A. The AGENCY agrees to pay CONTRACTOR 70% of gross monthly registration fees, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based Rev. 2/16 Page 1 of 13 Instructor/Coach Agreement upon actual time spent on the above tasks. Of the AGREEMENT unless additional payment is approved as provided in this AGREEMENT. B. CONTRACTOR shall not be compensated for any services rendered in connection with his/her/its performance of this AGREEMENT which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the AGENCY's REPRESENTATIVE. CONTRACTOR shall be compensated for any additional services in the amounts and in the manner as agreed to by AGENCY Manager and CONTRACTOR at the time AGENCY's written authorization is given to CONTRACTOR for the performance of said services. . VI. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE A. The AGENCY may at any time, for any reason, with or without cause, suspend or terminate this AGREEMENT, or any portion hereof, by serving upon the CONTRACTOR at least ten (10) days prior written notice. Upon receipt of said notice, the CONTRACTOR shall immediately cease all work under this AGREEMENT, unless the notice provides otherwise. If the AGENCY suspends or terminates a portion of this AGREEMENT such suspension or termination shall not make void or invalidate the remainder of this AGREEMENT. B. In the event this AGREEMENT is terminated pursuant to this Section, the AGENCY shall pay to CONTRACTOR the actual value of the work performed up to the time of termination, provided that the work performed is of value to the AGENCY. Upon termination of the AGREEMENT pursuant to this Section, the CONTRACTOR will submit an invoice to the AGENCY pursuant to Section 3. VII. DEFAULT OF CONTRACTOR A. The CONTRACTOR's failure to comply with the provisions of this AGREEMENT shall constitute a default. In the event that CONTRACTOR is in default for cause under the terms of this AGREEMENT, AGENCY shall have no obligation or duty to continue compensating CONTRACTOR for any work performed after the date of default and can terminate this AGREEMENT immediately by written notice to the CONTRACTOR. If such failure by the CONTRACTOR to make progress in the performance of work hereunder arises out of causes beyond the CONTRACTOR's control, and without fault or negligence of the CONTRACTOR, it shall not be considered a default. B. If the REPRESENTATIVE or his/her delegate determines that the CONTRACTOR is in default in the performance of any of the terms or conditions of this AGREEMENT., he/she shall cause to be served upon the Rev. 2/16 Page 2 of 13 Instructor/ Coach Agreement CONTRACTOR a written notice of the default. The CONTRACTOR shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the CONTRACTOR fails to cure its default within such period of time, the AGENCY shall have the right, notwithstanding any other provision of this AGREEMENT, to terminate this AGREEMENT without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this AGREEMENT. VIII. OWNERSHIP OF DOCUMENTS A. CONTRACTOR shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by AGENCY that relate to the performance of services under this AGREEMENT. CONTRACTOR shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. CONTRACTOR shall provide free access to the representatives of AGENCY or its designees at reasonable times to such books and records; shall give AGENCY the right to examine and audit said books and records; shall permit AGENCY to make transcripts there from as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this AGREEMENT. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. B. Upon completion of, or in the event of termination or suspension of this AGREEMENT, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this AGREEMENT shall become the sole property of the AGENCY and may be used, reused, or otherwise disposed of by the AGENCY without the permission of the CONTRACTOR. With respect to computer files, CONTRACTOR shall make available to the AGENCY, at the CONTRACTOR's office and upon reasonable written request by the AGENCY, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files. IX. INDEMNIFICATION Instructor shall indemnify, defend, and hold harmless the AGENCY, and its officers, employees, and agents ("Agency indemnitees"), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels' fees and costs of litigation ("claims"), arising out of the Instructor's performance of its obligations under this AGREEMENT or out of the operations conducted by Instructor, including the AGENCY's active or Rev. 2/16 Page 3 of 13 Instructor/ Coach Agreement passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of the AGENCY. In the event the AGENCY indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Instructor's performance of this AGREEMENT, the Instructor shall provide a defense to the AGENCY indemnitees or at the AGENCY's option reimburse the AGENCY indemnitees their costs of defense, including reasonable legal counsels' fees, incurred in defense of such claims. Payment by AGENCY is not a condition precedent to enforcement of this indemnity. In the event of any dispute between CONTRACTOR and AGENCY, as to whether liability arises from the sole negligence of the AGENCY or its officers, employees, or agents, CONTRACTOR will be obligated to pay for AGENCY's defense until such time as a final judgment has been entered adjudicating the AGENCY as solely negligent. CONTRACTOR will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney's fees, expert fees and costs of litigation. X. INSURANCE CONTRACTOR shall maintain prior to the beginning of and for the duration of this AGREEMENT insurance coverage as specified in Exhibit C attached to and part of this AGREEMENT. Contractor shall have the option of purchasing coverage through the Alliant Special Event insurance program, or providing his/her own coverage. Please initial the statement that applies: Contractor is providing a copy of the General Liability Insurance with Additional Insured Endorsement that meets the above requirements. Contractor shall be utilizing the AGENCY provided insurance through Special Events Insurance Program and will pay all required fees billed on a quarterly basis by the AGENCY. Please note that Special Events insurance program does not provide coverage for Worker's Compensation or Automobile Insurance Liability. XI. INDEPENDENT CONTRACTOR A. CONTRACTOR is and shall at all times remain as to the AGENCY a wholly independent contractor. The personnel performing the services under this AGREEMENT on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. Neither AGENCY nor any of its officers, employees, or agents shall have control over the conduct of CONTRACTOR or any of CONTRACTOR's officers, employees, or agents, except as set forth in this AGREEMENT. CONTRACTOR shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the AGENCY. CONTRACTOR shall not incur or Rev. 2/16 Page 4 of 13 Instructor/ Coach Agreement have the power to incur any debt, obligation, or liability whatever against AGENCY, or bind AGENCY in any manner. B. No employee benefits shall be available to CONTRACTOR in connection with the performance of this AGREEMENT. Except for the fees paid to CONTRACTOR as provided in the AGREEMENT, AGENCY shall not pay salaries, wages, or other compensation to CONTRACTOR for performing services hereunder for AGENCY. AGENCY shall not be liable for compensation or indemnification to CONTRACTOR for injury or sickness arising out of performing services hereunder. XII. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK The AGENCY requires that the CONTRACTOR and CONTRACTOR'S employees be fingerprinted pursuant to the California Educational Code 10911.5. The cost of service is at the CONTRACTORS expense. Note: For Live Scan purposes, independent contractors are not employees or volunteers of an Agency. If an Agency identifies an independent contractor as an "employee"or "volunteer"for purposes of receiving their criminal history, this may be a violation of both the California Public Resources Code §5164 and California Penal Code §11143. Attorneys have differing opinions on this. Agencies are advised to consult with legal counsel on this matter. Some Agencies are making a third party background check(not Live Scan) an element of the contract with instructors. Agencies may require that the contractor go through a third party background check every time the contract is renewed. Again, consulting with legal counsel on this practice is advised. XIII. TB TESTING AGENCY requires that the CONTRACTOR and CONTRACTOR'S employees that are working with children provide the AGENCY with the official results of a current T.B. Test. XIV. LEGAL RESPONSIBILITIES The CONTRACTOR shall keep him/her/itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this AGREEMENT. The CONTRACTOR shall at all times observe and comply with all such laws and regulations. The AGENCY, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the CONTRACTOR to comply with this Section. Rev. 2/16 Page 5 of 13 Instructor! Coach Agreement XV. NOTICES Any notices which either party may desire to give to the other party under this AGREEMENT must be in writing and may be given either by (i) personal service, (li) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To AGENCY: City of Rosemead 1. 2. 3. Attention: Agency Clerk To CONTRACTOR: 4. 5. XVI. ASSIGNMENT A. CONTRACTOR shall not assign the performance of this AGREEMENT, nor any part thereof, nor any monies due hereunder, without prior written consent of the AGENCY. Because of the personal nature of the services to be rendered pursuant to this AGREEMENT, only CONTRACTOR shall perform the services described in this AGREEMENT. B. CONTRACTOR may use assistants, under his/her direct supervision, to perform some of the services under this AGREEMENT. CONTRACTOR hereby agrees that he/she is solely responsible for any assistant he/she uses under this AGREEMENT and each assistant is bound by the terms of this AGREEMENT and CONTRACTOR shall have each assistant confirm in writing the he/she is familiar with the terms of this AGREEMENT and agrees to be bound by the terms and conditions set forth herein. XVII. Certification At all times during the term of this AGREEMENT, CONTRACTOR shall have all current Lifeguard/First Aid, CPR certification as well as Completion of all USA Swimming requirements, for the performance of the services described in this AGREEMENT. Rev. 2/16 Page 6 of 13 Instructor/ Coach Agreement XVIII. GOVERNING LAW The AGENCY and CONTRACTOR understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this AGREEMENT and also govern the interpretation of this AGREEMENT. Any litigation concerning this AGREEMENT shall take place in the municipal, superior, or federal district court with jurisdiction over the AGENCY. XIX. ENTIRE AGREEMENT This AGREEMENT contains the entire understanding between the parties relating to the obligations of the parties described in this AGREEMENT. All prior or contemporaneous AGREEMENT, understandings, representations, and statements, oral or written, are merged into this AGREEMENT and shall be of no further force or effect. Each party is entering into this AGREEMENT based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. XX. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this AGREEMENT on behalf of CONTRACTOR warrants and represents that he/she has the authority to execute this AGREEMENT on behalf of the CONTRACTOR and has the authority to bind CONTRACTOR to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed the day and year first above written. a Gloria ( \ 1 gy ZJ)��� 1V1�VAR d� 13y: 04- f/i1 Molleda, City Manager (Contractor Signature III at ntir��>E Attest: /Ur (Typed Name) Agency or City lerk Approved As To Form: `.'" Agency Attorney Rev. 2/16 Page 7 of 13 Instructor/Coach Agreement EXHIBIT A TASKS TO BE PERFORMED PRACTICE SCHEDULE DAY LANES TIME DAY TIME LANES January 151– June 10'h M-F 7 5-8PM SAT 8-10AM 10 June 11st–August 30'h MNV/F 7 5-8PM SAT 8-10AM 10 June 115'–August 30th T/TH 10 5AM-7AM June 11th –August 30'h T/TH 8 4PM-5:30PM August 316t—December 31st M-F 7 5-8PM SAT 8-10AM 10 A. It is the responsibility of the CONTRACTOR to notify participants and City staff of any unscheduled practice cancelations. B. AGENCY reserves the right to cancel CONTRACTOR usage if the facility is needed by the AGENCY. However, reasonable effort will be made to notify and reschedule usage. C. AGENCY reserves the right of full access to all activities at any time during scheduled usage to ensure all City, State, and Federal regulations are being adhered to. D. The AGENCY observes the following Holidays (all facilities will be closed) New Year's Eve Memorial Day Thanksgiving New Year's Day Independence Day Christmas Eve Martin Luther King Day Labor Day Christmas Day Presidents' Day Veterans Day Rev. 2/16 Page 8 of 13 Instructor/ Coach Agreement EXHIBIT B PAYMENT SCHEDULE 02/08/18 Check available after 3PM 03/08/18 Check available after 3PM 04/19/18 Check available after 3PM 05/17/18 Check available after 3PM 06/14/18 Check available after 3PM 07/12/18 Check available after 3PM 08/09/18 Check available after 3PM 09/20/18 Check available after 3PM 10/18/18 Check available after 3PM 11/15/18 Check available after 3PM 12/13/18 Check available after 3PM 01/10/18 Check available after 3PM USA Swimming Member Registration (Annual Fee): $66 A. The CONTRACTOR will collect all USA Swim fees. CONTRACTOR will provide the AGENCY with a roster of registered USA swim participants. Group Monthly Fee Development Group $110 Age Group 1 $120 Age Group 2 $130 Age Group Elite $140 Senior Development Group $140 Senior Group $150 Senior Elite Group $160 Sibling Discount: 2nd Swimmer -$5 3rd Swimmer -$10 4th Swimmer -$15 Rev. 2/16 Page 9 of 13 Instructor/Coach Agreement EXHIBIT C INSURANCE REQUIREMENTS Without limiting Instructor's indemnification of AGENCY, and prior to commencement of Work, Instructor shall obtain, provide and maintain at its own expense during the term of this AGREEMENT, policies of insurance of the type and amounts described below and in a form satisfactory to AGENCY. Note: Verify minimum limit for each coverage with Agency Risk Manager. Also, workers' compensation and auto liability insurance may not be necessary in instructor agreements. General liability insurance. Instructor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Sexual abuselmolestation insurance. Instructor shall procure and maintain Sexual Abuse/Molestation Liability coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate. Coverage may be provided as part of Commercial General Liability coverage, Professional Liability coverage, or as a separate policy. Automobile liability insurance. Instructor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Instructor arising out of or in connection with Work to be performed under this AGREEMENT, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. Umbrella or excess liability insurance. [Optional depending on limits required] Instructor shall obtain and maintain an umbrella or excess liability insurance policy that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall "follow form" to the underlying primary policies; and Rev. 2/16 Page 10 of 13 Instructor/ Coach Agreement • Insureds under primary policies shall also be insureds under the umbrella or excess policies. Workers' compensation insurance. Instructor shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Instructor shall submit to AGENCY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of AGENCY, its officers, agents, employees, and volunteers. Other provisions or requirements Proof of insurance. Instructor shall provide certificates of insurance to AGENCY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsements must be approved by AGENCY's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with AGENCY at all times during the term of this contract. AGENCY reserves the right to require complete, certified copies of all required insurance policies, at any time. Duration of coverage. Instructor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder Instructor, his agents, representatives, employees or sub consultants. Primary/noncontributing. Coverage provided by Instructor shall be primary and any insurance or self-insurance procured or maintained by AGENCY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of AGENCY before the AGENCY's own insurance or self-insurance shall be called upon to protect it as a named insured. Agency's rights of enforcement. In the event any policy of insurance required under this AGREEMENT does not comply with these specifications or is canceled and not replaced, AGENCY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by AGENCY will be promptly reimbursed by Instructor or AGENCY will withhold amounts sufficient to pay premium from Instructor payments. In the alternative, AGENCY may cancel this AGREEMENT. Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the AGENCY's Risk Manager. Rev. 2/16 Page 11 of 13 Instructor/Coach Agreement Waiver of subrogation. All insurance coverage maintained or procured pursuant to this AGREEMENT shall be endorsed to waive subrogation against AGENCY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Instructor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Instructor hereby waives its own right of recovery against AGENCY, and shall require similar written express waivers and insurance clauses from each of its subconsultants. Enforcement of contract provisions (non estoppel). Instructor acknowledges and agrees that any actual or alleged failure on the part of the AGENCY to inform Instructor of non-compliance with any requirement imposes no additional obligations on the AGENCY nor does it waive any rights hereunder. Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Instructor maintains higher limits than the minimums shown above, the AGENCY requires and shall be entitled to coverage for the higher limits maintained by the Instructor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the AGENCY. Notice of cancellation. Instructor agrees to oblige its insurance agent or broker and insurers to provide to AGENCY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. Additional insured status. General liability policies shall provide or be endorsed to provide that AGENCY and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to AGENCY and approved of in writing. Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Instructor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross-liability exclusions. Pass through clause. Instructor agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or Rev. 2/16 Page 12 of 13 Instructor/ Coach Agreement involved in the project by Instructor, provide the same minimum insurance coverage and endorsements required of Instructor. Instructor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Instructor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to AGENCY. Agency's right to revise specifications. The AGENCY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Instructor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Instructor, the AGENCY and Instructor may renegotiate Instructor's compensation. Self-insured retentions. Any self-insured retentions must be declared to and approved by AGENCY. AGENCY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by AGENCY. Timely notice of claims. Instructor shall give AGENCY prompt and timely notice of claims made or suits instituted that arise out of or result from Instructor's performance under this AGREEMENT, and that involve or may involve coverage under any of the required liability policies. Additional insurance. Instructor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Rev. 2/16 Page 13 of 13 Instructor/ Coach Agreement