AGR-7464 - ERIKA BECERRAINSTRUCTOR SERVICES AGREEMENT
THIS INSTRUCTOR SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this a +tday of-3—qn r 20R3 (the "Effective Date") by
and between the CITY OF ORANGE, a municipal corporation("City"), and ERIKA BECERRA,
a sole proprietor("Instructor"),who agree as follows:
1. Services Subject to the terms and conditions set forth in this Agreement,Instructor
shall provide to the reasonable satisfaction of City the services set forth in Exhibit "A,"which is
attached hereto and incorporated herein by reference. Instructor represents and warrants that it has
thoroughly investigated and considered the scope of services and fully understands the
expectations and requirements in performing the work, including those contained in Exhibit`B,"
which are attached hereto and incorporated herein by reference. The services which are the subject
of this Agreement are not in the usual course of City's business and City relies on Instructor's
representation that it is independently engaged in the business of providing such services, is
experienced in performing the work and will follow the highest professional standards in
performance of the work. All services provided.shall conform to all federal, state and local laws,
rules and regulations and to the best professional standards and practices. The terms and conditions
set forth in this Agreement shall control over any terms and conditions in Exhibits "A" or`B"to
the contrary.
The Community Services Department designee(the"CSD Designee"), shall be the person
to whom Instructor will report for the performance of services hereunder. It is understood that
Instructor's performance hereunder shall be in cooperation with the CSD Designee,that Instructor
shall coordinate its services hereunder with the CSD Designee to the extent required by the CSD
Designee, and that all performances required hereunder by Instructor shall be performed to the
satisfaction of the CSD Designee and the City Manager.
2. Compensation. Instructor's total compensation for all services performed under
this Agreement, shall not exceed THIRTY THOUSAND DOLLARS and 00/100 ($30,000.00),
without the prior written authorization of City.
3. Method of Payment. Instructor's total compensation under this Agreement shall
be that amount which represents the agreed percentage of the registration fee(s) paid to City for
the class(es)to be taught by Instructor,which shall be due and payable within forty-five(45)days
after satisfactory completion of all classes taught by Instructor pursuant to and in accordance with
Exhibit"A." The total compensation payable hereunder shall include costs incurred in connection
with transportation, materials and equipment required for furnishing services pursuant to this
Agreement.
4. Changes. No payment for extra services or classes outside of the scope contained
in this Agreement shall be made unless and until such extra services or classes and a price therefor
have been previously recommended for approval by the CSD Designee and authorized in writing
and approved by City as an amendment to this Agreement. The amendment shall set forth the
extra services or classes, additional time, and adjustment of the amount of compensation paid by
City.to Instructor.
5. Licenses. Instructor represents that it and any substitutes it may engage, possess
any and all licenses which are required under state or federal law to perform the work contemplated
by this Agreement and that Instructor and its substitutes, if any, shall maintain all appropriate
licenses, including a City of Orange business license, at its cost, during the performance of this
Agreement.
6. Independent Contractor. At all times during the term of this Agreement,
Instructor shall be an independent contractor and not an employee of City. City shall have the
right to control Instructor only insofar as the result of Instructor's services rendered pursuant to
this Agreement. Instructor shall comply with City's administrative and accounting requirements,
which shall not be considered part of the performance of the work. City shall not have the right to
control the instructional means by which Instructor accomplishes services rendered pursuant to
this Agreement. In some instances, Instructor shall, at its sole cost and expense, furnish all
facilities, materials and equipment that may be required for furnishing services pursuant to this
Agreement. Instructor shall be solely responsible for, and shall indemnify, defend and save City
harmless from all matters relating to the payment of its substitutes, agents and employees,
including compliance with social security withholding and all other wages,salaries,benefits,taxes,
exactions, and regulations of any nature whatsoever. Instructor acknowledges that it and any
substitutes, agents or employees employed by Instructor shall not, under any circumstances, be
considered employees of City, and that they shall not be entitled to any of the benefits or rights
afforded employees of City, including,but not limited to, sick leave, vacation leave, holiday pay, .
Public Employees.Retirement System benefits, or health, life, dental, long-term disability or
workers' compensation insurance benefits.
7. Instructor Not An Agent. Except as City may specify in writing,Instructor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Instructor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
8. Designated Persons. Except as otherwise authorized by the CSD Designee, only
those persons designated in Exhibit "A," if any, shall perform work provided for under this •
Agreement. It is understood by the parties that clerical and other nonprofessional work may be
performed by persons other than those designated.
9. Assignment or Subcontracting. No assignment or substitution by Instructor of
any part of this Agreement or of funds to be received under this Agreement shall be of any force
or effect unless the assignment has had the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or substitution. Such assignment or
substitution may be approved by the CSD Designee or the City Manager.
10. Time of Completion. Instructor agrees to commence the work provided for in this
Agreement and to diligently prosecute completion of the work in accordance with the time period
set forth in Exhibit"A"or as otherwise agreed to by and between the representatives of the parties.
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Time is of the essence in this Agreement. Instructor shall do all things necessary and incidental to
the prosecution of Instructor's work.
11. Equal Employment Opportunity. During the performance of this Agreement,
Instructor agrees as follows:
a. Instructor shall not discriminate against any employee or applicant for
employment because of race, color,religion, sex, national origin,mental or physical disability, or
any other basis prohibited by applicable law. Instructor shall ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion,
sex,national origin,mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include,but not be limited to the following: employment,upgrading, demotion
or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms
of compensation and selection for training, including apprenticeship. Instructor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Instructor shall,in all solicitations and advertisements for employees placed
by, or on behalf of Instructor, state that all qualified applicants will receive consideration for
employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
12. Conflicts of Interest. Instructor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as an Instructor to influence any decision of City
in which Instructor knows or has reason to know that Instructor,its officers,partners,or employees
have a financial interest as defined in Section 87103 of the Government Code.
13. Indemnit_y.
a. To the fullest extent permitted by law, Instructor agrees to indemnify,
defend and hold City, its City Council and each member thereof, and the officers, officials, agents
and employees of City(the"Indemnitees") entirely harmless from all liability arising out of:
1) Any and all claims under workers' compensation acts and other
employee benefit acts with respect to Instructor's employees or Instructor's substitute's or
subcontractor's employees arising out of Instructor's work under this Agreement, including any
and all claims under any law pertaining to Instructor or its employees' status as an independent
contractor; and
2) Any claim,loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission other than a professional act or omission of
Instructor,or person,firm or corporation employed by Instructor,either directly or by independent
contract, including all damages due to loss or theft sustained by any person, firm or corporation
including the.Indemnitees, or any of them, arising out of, or in any way connected with the work
or services which are the subject of this Agreement, including injury or damage either on or off
City's property; but not for any loss, injury,,death or damage caused by the active negligence or
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willful misconduct of City. Instructor, at Instructor's own expense, cost and risk, shall indemnify
any and all claims, actions,suits or other proceedings that may be brought or instituted against the
Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy
any judgment that may be rendered against the Indemnitees, or any of them, in any action, suit or
other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, Instructor agrees to indemnify and
hold Indemnitees entirely harmless from all liability arising out of any claim, loss, injury to or
death of persons or damage to property caused by the negligent professional act or omission in the
performance of professional services pursuant to this Agreement.
c. Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity which is not a signatory to this Agreement.
d. The indemnities set forth in this section shall survive any closing,
rescission, or termination of this Agreement, and shall continue to be binding and in full force and
effect in perpetuity with respect to Instructor and its successors.
14. Insurance.
a. Instructor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Instructor understands that it
is an independent contractor and not entitled to any workers' compensation benefits under any
City program.
b. Instructor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Instructor. Said insurance shall cover
bodily injury,death and property damage,shall not exclude participants(e.g.,no spectator liability
policies allowed) and be written on an occurrence basis.
c. Each policy of general liability shall provide that City,its officers, officials,
agents and employees are declared to be additional insureds under the terms of the policy,but only
with respect to the work performed by Instructor under this Agreement. A policy endorsement to
that effect shall be provided to City along with the certificate of insurance. In lieu of an
endorsement, City will accept a copy of the policy(ies)which evidences that City is an additional
insured as a contracting party. The minimum coverage required by Section b, above, shall apply
to City as an additional insured.
d. The insurance policies maintained by Instructor shall be primary insurance
and no insurance held or owned.by City shall be called upon to cover any loss under the policy.
Instructor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
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e. Before Instructor performs any work or prepares or delivers any materials,
Instructor shall furnish certificates of insurance and endorsements, as required by City, evidencing
the aforementioned insurance coverages.
f.All insurance maintained by Instructor shall be issued by companies
admitted to conduct the pertinent line of insurance business in the State of California and having
a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.
g. Instructor shall immediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Instructor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Instructor.
h. Instructor agrees that in the event of loss due.to any of the perils for which
it has agreed to provide insurance, Instructor shall look solely to its insurance for recovery.
Instructor hereby grants to City, on behalf of any insurer providing insurance to either Instructor
or to City with respect to the services of Instructor herein, a waiver of any right to subrogation
which any such insurer of said Instructor may acquire against City by virtue of the payment of any
loss under such insurance.
i.Instructor shall include all substitutes, if any, as insureds under its policies
or shall furnish separate certificates and endorsements for each substitute to City for review and
approval. All coverages for substitutes shall be subject to all of the requirements stated herein.
15. Termination. City may for any reason terminate this Agreement by giving
Instructor not less than three (3) days' written notice of intent to terminate. Upon receipt of such
notice, Instructor shall immediately cease work, unless the notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Instructor.for services satisfactorily
provided and all allowable reimbursements incurred to the date of termination in compliance with
this Agreement, unless termination by City shall be for cause, in which event City may withhold
any disputed compensation. City shall not be liable for any claim of lost profits.
16. Maintenance and Inspection of Records. In accordance with generally accepted
accounting principles, Instructor and its substitutes shall maintain reasonably full and complete
books, documents,papers, accounting records, and other information(collectively,the"records")
pertaining to the costs of and completion of services performed under this Agreement. City and
its authorized representatives shall have access to and the right to audit and reproduce any of
Instructor's records regarding the services provided under this Agreement. Instructor shall
maintain all such records for a period of at least three(3)years after termination or completion of
this Agreement. Instructor agrees to make available all such records for inspection or audit at its
offices during normal business hours and upon three(3)days'.notice from City,and copies thereof
shall be furnished if requested.
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17. Compliance with all Laws/Immigration Laws.
a. Instructor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. Instructor represents and warrants that it:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form I-9 for each of Instructor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in 'a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
c. Instructor shall require all substitutes to make the same representations and
warranties as set forth in Subsection 17.b.
d. Instructor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the.reasonable satisfaction of City,verification
that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Instructor. Once such request has been made, Instructor may not
change employees working under this Agreement without written notice to City, accompanied by
the verification required herein for such employees.
e. Instructor shall require all substitutes to make the same verification as set
forth in Subsection 17.d.
f.Any Instructor or substitute who knowingly employs an employee
providing work under this Agreement who is not authorized to work in the United States, and/or
fails to follow federal laws to determine the status of such employee shall constitute a material
breach of this Agreement and may be cause for immediate termination of this Agreement by City.
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g. Instructor agrees to indemnify and hold City, its officers, officials, agents
and employees harmless for, of and from any loss, including but not limited to fines,penalties and
corrective measures, City may sustain by reason of Instructor's failure to comply with said laws,
rules and regulations in connection with the performance of this Agreement.
18. Governing Law and Venue. This.Agreement shall be construed in accordance
with and governed by the laws of the State of California and Instructor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
19. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties. Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
20. •Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class mail,postage
prepaid, to each party at the address listed below. Either party may change the notice address by
notifying the other party in writing. Notices shall be deemed received upon receipt of same or
within three(3)days of deposit in the U.S.Mail,whichever is earlier. Notices sent by e-mail shall
be deemed received on the date of the e-mail transmission.
INSTRUCTOR" CITY"
Erika Becerra City of Orange
3132 Quart Ln. #1 300 E. Chapman Avenue
Fullerton, CA 92831 Orange, CA 92866-1591
Attn.: Community Services Director
Telephone: (714)213-6456 Telephone: (714) 744-7274
E-Mail: erkbsmart@gmail.com E-Mail: lhardy@cityoforange.org
21. Counterparts. This Agreement may be executed in one or more counterparts,each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
Remainder ofpage intentionally left blank;signatures on next page]
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IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
INSTRUCTOR"CITY"
ERIKA BECERRA, a sole proprietor CITY OF ORANGE, a municipal corporation
By: By:
Printed Name: i?ce r rg Thom C. Ki a, Interim City Manager
Title:
By: APPROVED AS TO FORM:
Printed Name:
Title:
V\IAA y&,9
Mary E. B ing
Senior Assistant City Atto
NOTE:City requires the following signature(s) on behalf of Instructor:
1) the Chairman of the Board, the President or a Vice-President, AND (2) the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or
an Assistant Treasurer. If only one corporate officer exists or one corporate
officer holds more than one corporate office,please so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter into
this Agreement. A copy of the corporate resolution, certified by the Secretary
close in time to the execution of the Agreement, must be provided to City.
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EXHIBIT "A"
SCOPE OF SERVICES
Beneath this sheet.]
Exhibit A
Erika Becerra
3132 Quartz Ln. #1
Fullerton, CA 92831
714) 213-6456
Scope of Service
City of Orange
Recreation Class Contract Instruction
Service j of Revenue Charge
Teach Recreation Classes as directed by City of Orange staff 60%
Classes offered throughout the duration of this agreement shall be the same and/or similar to the type of
classes listed below.
Course Description(s)—applies to adults:
Zumba Fitness Party
Calorie burning, low and high intensity, interval-style workout to Latin and World Rhythm music.
Location:
Classes will be taught in a City facility.
Class location is subject to change per the request of City staff whether it be due to a maintenance and/or
safety concern or a matter of availability or preference.
Equipment Provided by the City:
Tables and chairs allocated to the facility.
Exhibit A
Page 1 of 1
EXHIBIT "B"
SPECIAL PROVISIONS
Beneath this sheet.]
Exhibit B
Special Provisions
Please initial next to each of the following subparagraphs after carefully reading each statement and agreeing
with each statement:
a. L . All class and/or camp registration must be processed through the City of Orange
Community Services Department. Instructors are not allowed to directly accept registration money from
students at any time.
b. e - t3 Applicable class material fees must be approved by the City prior to the class start date
and may be paid by the participant directly to the instructor. If a participant withdrawls from a class and
requests a refund of the paid material fee,the instructor is obligated to refund at a minimum a pro-rated
amount of that material fee directly to the participant.
c. To maintain quality customer service with our customers, instructor or a designated
representative are expected to attend at a minimum ten minutes of the first class meeting, even if the
class is canceled due to lack of enrollment.
d. 2) If a class cancels and the instructor is unable to attend the first class meeting, it is the
responsibility of the Instructor to contact the City's Community Services Coordinator prior to informing
participants of the class cancellation.
e. I5 All student and class transfers must first be approved by the City's Community Services
Coordinator.
f. It is the responsibility of the instructor to regularly take class attendance and
communicate discrepancies immediately to the Community Services Coordinator. The Instructor is paid
according to City records.
g. Instructors must notify the City's Community Services Coordinator within 24 hours if a
student does not show up on the first day of class, "drops out" of class, or requests a refund. Instructors
are not paid for participants that never attended class.
h. It is the responsibility of the Instructor to meet quarterly proposal submittal deadlines. If
deadlines are not met, the City has the right to withhold class information from appearing in the
upcoming Our Orange. The City has the right to accept or decline each quarter, all submitted class
proposals either in part or in its entirety.
Exhibit B
Page 1 of 3
Exhibit B
Special Provisions
1.0 Instructors are required to supply their own instructional materials and equipment at
each class. The City and its employees are not responsible for lost, damaged, or stolen materials left
behind by Instructors or their participants.
On-site instructors: in most cases, there is no on-site storage available. However, in the event class is
taught in a location that does have storage, arrangements must be made with the Community Services
Coordinator prior to leaving any equipment or materials. Equipment and materials left in storage is done
so at the instructor's own risk.
j.Instructors must make every effort to prevent injury to students and property and are
expected to report unsafe park and/or facility conditions to the Community Services Coordinator
immediately.
k. aj Instructors must leave City facilities neat and clean after each use.
On-site instructors: are responsible for communicating their room set-up at a minimum one week prior
to the first class meeting. Despite the activity, any table used during class must be covered to prevent
damage or staining.
I. -rG • L3 The City reserves the right to observe all classes and complete periodic evaluations of
services rendered unannounced.
m. C _ Under no circumstances shall the instructor speak to members of the media on behalf of
the City. If an instructor is approached by a member of the media, the instructor shall contact the
Community Services Department immediately.
n. NOTE to Instructors working with minors: Section 5164 of the Public Resources Code and
10911.5 of the Education Code requires instructors and their employees, volunteers, or assistants
working with minors under the age of 18 to be fingerprinted.
Off-site instructor: shall provide the City with a written declaration stating they are in accordance with
California State Laws, section 5164 of the Public Resources Code and 10911.5 of the Education Code.
On-site instructors: working with minors under the age of 18 must be fingerprinted through the City of
Orange Police Department. This includes any substitutes, assistants, or volunteers that work with
minors.
Exhibit B
Page 2 of 3
Exhibit B
Special Provisions
o. e • .'. In addition to compliance with fingerprinting laws, Instructors who are employers are
expected to:
Conduct"Google"or other reasonable Internet name searches prior to hiring new staff members
to ensure new staff members meet the qualifications and standard under the guidelines
contained herein
Maintain staff employment eligibility on a quarterly basis by conducting "Google" or other
reasonable internet name searches prior to the start of the new season of scheduled classes to
ensure staff members are eligible under the guidelines contained herein
Provide a list of active employees when requested by the City
P. iG- Guidelines for Instructor Conduct:
The City of Orange is seeking Instructors who relate well with others, have a good self-image, positively
represent the City, are personable and pleasant, demonstrates poise and maturity, and are interested in
providing excellent customer service.
Each instructor is expected to behave in a professional and courteous manner which includes, but is not
limited to:
Uses appropriate and positive language
Does not discriminate on the basis of age, race, sex, religion, ethnicity, and physical disabilities
and/or limitations
Wears appropriate, non-offensive clothing or attire (anything with explicit language and/or
related to sex, drugs, alcohol, politics, etc. is not considered appropriate attire)
Encourages participants, never belittles, scolds, or disciplines through use of physical force
Makes each participant feel valued and appreciated
Exhibit B
Page 3 of 3