AGR-6683.A - KAY SUTTERFIELD - TINY TOTS INSTRUCTOR SERVICES AGREEMENT - 2020R-8.3 A
INSTRUCTOR SERVICES AGREEMENT
THIS INSTRUCTOR SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this,day of `Sn 2020 (the"Effective Date")by and
between the CITY OF ORANGE, a municipal corporation("City"), and KAY SUTTERFIELD, 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. Comnensation. 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. Chan es. 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
hartnless 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 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 Emnloyment Ouportunity. 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. Indemnitv.
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 insuranee shall cover
bodily injury, death and property damage and be written on an occurrence basis.
c. Each policy of general liability shall provide that City, its officers, 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
any of their 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 Instructor:
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 Section 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 Section 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 officials, 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 btherwise 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 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"
Kay Sutterfield City of Orange
3002 Oceanview 300 E. Chapman Avenue
Orange, CA 92865 Orange, CA 92866-1591
Attn.: Kay Sutterfield Attn.: Community Services Director
Telephone No.: 714-974-6819 Telephone No.: 714-744-7274
E-Mail Address: wsutt@aol.com E-Mail Address: bhagan@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 pageJ
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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"
KAY SUTTERFIELD, a sole proprietor CITY OF ORANGE, a municipal corporation
B BY• Y•
Printed ame: S e c c Otto, City Manager
Title: %".s n,s r-uc,o'
APPROVED AS TO FORM:
1/,V
Mary E. Bi ing
Senior Assistant City Attorne
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EXHIBIT "A"
SCOPE OF SERVICES
Beneath this sheet.]
Kay Sutterfield
3002 Oceanview
Orange, CA 92865
714) 974-6819
Scope of Service
City of Orange
Recreation Class Contract Instruction
Teach Recreation Classes as directed by City of Orange staff 60%
Course Description(s) —applies to adults and vouth:
Classes offered throughout the duration of this agreement shall be the same and/or similar to the type of
classes listed below.
Tiny Tots
Give your child a head start in their education as they learn kindergarten skills, all while having fun and making
new friends. Minimal parent involvement is required. Children should bring a lunch and must be toilet-trdined.
Location:
Classes will be taught in a City facility.
Class location is subject to change as determined by City staff.
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 place your initials in the blank space pdjacent to each of the following subparagraphs after
carefully reading each statement and agreeing with each statement:
a. S 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. 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. /G 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 cancelation.
e. l 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. 1 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
REVISED 09/2018
Exhibit 8
Special Provisions
i. 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. S 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.S The City reserves the right to observe all classes and complete periodic
evaluations of services rendered unannounced.
m. 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 finger
printed.
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 finger printed
through the City of Orange Police Department. This includes any substitutes, assistants,
or volunteers that work with minors.
Exhibit B
Page 2 of 3
REVISED 09/2018
Exhibit 8
Specia/ Provisions
o. ,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 inembers to ensure new staff inembers 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 inembers are eligible under the guidelines
contained herein
Provide a list of active employees when requested by the City
p. __1 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
REVISED 09/2018