HomeMy WebLinkAboutLeatherman, Richard; 2021-06-23;DocuSign Envelope ID: 4BEB96EE-3D7B-4FDF-A78B-8DE322927261
June
23rd
AGREEMENT FOR VOLLEYBALL INSTRUCTOR SERVICES
RICHARD LEATHERMAN
THIS AGREEMENT is made and entered into as of the ______ day of
___________ , 2021 , by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and Richard Leatherman, a sole proprietor, ("Contractor").
REC ITALS
A. City requires the professional services of a Volleyball Instructor that is experienced
in teaching and Instructing.
B. Contractor has the necessary experience in providing professional services and
advice related to teaching and instructing Volleyball Classes.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
The City expects the result of Contractor's services to be the enjoyment and increased
knowledge , skill, and/or ability of course participants. Contractor has sole control over the
manner and means of accomplishing this result; however, the City may monitor Contractor's
course(s) to confirm that this result is being achieved and that Contractor is complying with the
terms of this Agreement.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of 5 years from the date first above written.
The City Manager may amend the Agreement to extend it for 3 additional 2-year periods or parts
thereof. Extensions will be based upon a satisfactory review of Contractor's performance, ,City
needs, and appropriation of funds by the City Council. The parties will prepare a written
amendment indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
City will collect the fee listed in the recreation registration software located at
http://secure.rec1 .com/CA/carlsbad-ca/catalog, plus a transaction, and non-resident fee, if
applicable, from each participant who registers for Contractor's course(s). As payment for
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Contractor's service(s), Contractor will receive an amount equal to sixty percent (60%) of the
fees collected for each course, excluding transaction fees , non-resident fees and/or any fees
that are refunded. Contractor will be required to set class fees within the current market range,
excluding any fees set by City Council. The City reserves the right to deny a contract or class if
fees do not fall within this range.
To be paid for a course, Contractor must submit an email or written request to initiate payment
to the City for all courses/camps. The request to initiate payment must be submitted after the
end of the course. The request to initiate payment must be accompanied by the course/camp
activity numbers. Contractor must submit written or e-mail approval for total final amount owed
on Instructor Payment Due Report. Failure to list the activity numbers or approve final amount
owed may result in a denial or delay in payment. In most cases, the City will pay the invoice or
request for payment within ten to fifteen business days afte r its receipt and verification.
Contractor understands that filing a false claim for payment may subject Contractor to civil
penalties under California Government Code sections 12650, et seq., and Carlsbad Municipal
Code section 3.32.025.
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution , social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in writing by City.
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8. INSTRUCTOR AND ASSISTANT($)
Contractor shall designate the Instructor in Exhibit "A" attached hereto. Contractor may utilize, at
Contractor's own expense, the assistant(s) listed in Exhibit "A" to help perform the services
required by this Agreement. Contractor may not utilize anyone who is not listed in Exhibit "A"
without obtaining the prior approval of the Parks and Recreation Director, Recreation Area
Manager or designee and, if applicable, providing the City's Parks & Recreation Department
with the criminal history background check with Live Scan fingerprint and TB test information
discussed in paragraph 11 and the certifications discussed in paragraph 12 below. Assistants
must be at least 16 years of age and have a valid work permit. Assistant may not teach in place
of the Contractor without prior approval of the Recreation Supervisor or Area Manager.
Assistants teaching in place of the Contractor must be at least 18 years of age. Contractor is
solely responsible for supervising the work of the assistant(s) to ensure compliance with this
Agreement.
9. RATIO
Contractor is responsible for maintaining the following adult to child ratios:
9.1 Classes
9.1 .1. 1 Instructor for 20 students (Ages 5 and up) at most
9.1 .2. 1 Instructor for 8 1students (Ages 4 and below) at most
9.2 Camps
9.2 .1. 1 Instructor for 15 students (Ages 5 and up) at most
9.2.2. 1 Instructor for 6 students (Ages 4 and below) at most
10. RULES AND SAFETY
Contractor will be required to comply with the Carlsbad Parks & Recreation Department's Safety
Rules and participate in a Contractor Instructional Services Agreement renewal meeting each
year. (See 2015 Instructor Information Booklet). Contractor is also required to have all
participants in classes or camps sign in and out by an authorized adult if the participant is a
minor.
11. TB TEST AND BACKGROUND CHECK
Prior to performing any work under this Agreement, Contractor and Contractor's assistant(s)
must provide proof of a negative TB test taken within the last four years. If a course is open to
minors, Contractor and Contractor's assistant(s) must complete a criminal history background
check. The criminal history background check requires Contractor and Contractor's Assistant(s)
to have Live Scan fingerprints processed by the City. Should Contractor or Contractor
assistant(s) criminal history background check reveal the existence of prior convictions, the City
may immediately terminate this Agreement and/or disqualify Contractor or Contractor's
assistant(s) from performing future instructional services for the City.
12. CERTIFICATIONS
If applicable, Contractor and Contractor's Assistant(s) must provide the City with the following
certifications, which must remain valid throughout the duration of this contract: First Aid and
CPR. If any certification(s) will expire during the term of this Agreement, Contractor and
Contractor's Assistant(s) must provide updated proof of valid certificate(s) prior to the expiration
date.
13. MANDATED REPORTER(S)
If a course is open to minors, making Contractor and Contractor's assistant(s) "mandated
reporters" within the meaning of California Penal Code section 11165.?(a), Contractor and
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Contractor's assistant(s) will comply with the mandatory reporting requirements contained in
California Penal Code section 11166, which is attached as Exhibit "B" to this Agreement.
14. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
15. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorney's
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self..,administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination of this Agreement.
16. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
16.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Contractor pursuant to this Agreement · are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
16.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work under this Agreement
or the general aggregate will be twice the required per occurrence limit.
16.1.2 Athletic Participant/Participant Legal Liability and Sexual Abuse and Molestation
coverage (if there are athletic participants). $1,000,000 combined single-limit per accident for
bodily injury and property damage.
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16.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
16.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
16.2.1 The City, its officials, employees and volunteers will be named as an additional
insured on Commercial General Liability which shall provide primary coverage to the City.
16.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
16.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
16.3 Providing Certificates of Insurance and Endorsements. Prior to starting any work stated
in this Agreement, Contractor will furnish certificates of insurance and endorsements to City.
16.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages . Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
16.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insurance policies and endorsements.
17. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
18. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
19. NOTICES
Notices between the Contractor and the City may be made by either personal delivery, email or
by first-class mail. Mailed notices must be sent to the addresses listed in the introductory
paragraph, unless changed in writing in accordance with this paragraph. Personally delivered
notices will be considered communicated on the day they are actually received. Emailed or mailed
notices will be considered communicated on the day they are actually received or five days after
their mailing, whichever occurs first.
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The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City
Name Steve Herrera
Title Recreation Supervisor II
Department Parks & Recreation
City of Carlsbad
Address 2997 Glasgow Drive
Carlsbad CA 92010
Phone No. 7604342973
For Contractor
Name Richard Leatherman
Title Owner Sole Proprietor
Address 12840 War Horse
San Diego CA 92129
Phone No. 858-831-2393
Email Dleathe1@san.rr.com
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
20. COURSE ADVERTISEMENT
Prior to the first class date, Contractor will pull rosters from the City's CivicRec registration
software, athttp://secure.rec1.com/CA/carlsbad-ca/catalog. Contractor will verify the information
contained on the roster against actual attendance on the first class date and report any
discrepancies to the City by the end of the next business day. Contractor will not allow a
person to participate in a course unless the person appears on the course roster and has signed
an electronic annual liability waiver form.
21. COURSE ADVERTISEMENT
The City will advertise the Contractor's course(s) in the upcoming Community Services Guide(s)
and in any other manner the City determines is appropriate. Contractor may also advertise
Contractor's course(s) in any manner Contractor determines is appropriate, subject to the prior
approval of the City. Marketing materials must be submitted to the City for approval at least 14
days prior to distribution. (See 2015 Contract Instructor Information Booklet). Contractor must
obtain photo releases from any enrollee prior to any marketing or promotion with use of photos
of enrollees.
22. ATTENDANCE
Prior to the first class date of each course, the Contractor will go on line to the registration
website and print a class attendance sheet. Contractor will mark each day's attendance on the
class attendance sheet and submit the completed attendance sheet to the City at the end of the
course. Contractors are responsible for contacting participants who have not attended the first
class and notify the Instructional Class Division . Sheets may be dropped in the facility mailbox
prior to leaving for the evening on the last class of the course.
23. USE OF CITY FACILITIES
The City will allow Contractor to use the City facility(ies) identified in the Carlsbad Community
Services Guide on the day(s) and at the time(s) indicated. The rules for use of the facility(ies)
are contained in Exhibit "C." Contractor is responsible for ensuring the Instructor, Instructor's
assistant(s), and the participants in Instructor's course(s) are informed of and comply with these
rules. Contractor must abide by the start and end times of each class/camp stated in Exhibit i'A".
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Failure to abide by the start and end time listed in Exhibit "A" for any class/camp may result in
termination of contract.
If any injury, lost child, or property damage occurs during a class or camp, Contractor must
promptly report the injury, lost child, or property damage to the facility attendant on duty (after
any necessary first aid or emergency services are rendered). The 2015 Instructor Information
Booklet provide specific instructions on how to handle emergencies. The Contractor will also
report as a witness on the injury/incident report. If there is no facility attendant on duty,
Contractor must report the injury, lost child, incident, or property damage to the Parks &
Recreation Director, a Recreation Area Manager or designee immediately.
24. CANCELING COURSE(S)
The City, after first notifying Contractor, may cancel a course if the City does not receive
registration forms and fees from the minimum number of at least 5 participants or the minimum
specified in Exhibit "A" at least two days prior to the first class date for a course. Contractor will
not be compensated for any course canceled due to low enrollment.
25. CANCELING OR RESCHEDULING CLASS DATE(S)
Contractor may not cancel or reschedule a class date without the prior written approval of the
City's Parks & Recreation Director, Recreation Area Manager or designee. Contractors are solely
responsible for informing enrollees of any cancelations or rescheduling of classes.
26. CONFLICT OF INTEREST
If requested, Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance
with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
27. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
28. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
29. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
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to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
30. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the services contemplated by this
Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination, City will make a determination of fact based upon the service delivered
and of the percentage of service that Contractor has performed. Based upon that finding City will
determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
31. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
32. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
33. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
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County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
34. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
35. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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36. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
(print name/title)
(sign h re)
.{? i e-1-t A/J~-/) /_.. l?hT1-.f 13",{! i1'1 A-rJ
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
Chief Operations Officer, Deputy City
Manager or Department Director
as authorized by the City Manager
ATTEST:
BARBARA ENGLESON
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY: ___ U_~_(}..,_f_~_{)sf ___ _
Deputy City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Volleyball Coed Four-Person
This program is a coed league divided into two skill divisions. Four-person teams and
divisions are determined and divided on the first night based upon skill levels. For possible
inclusion, new players and wait-listed participants must attend the first night
Instructor: Richard Leatherman
Min: 16 Max: 32
Ages: 18 and up
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