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24-148 MOU City of Cupertino and Santa Clara Country Central Fire Protection Dsitrict 1 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF CUPERTINO AND SANTA CLARA COUNTY CENTRAL FIRE PROTECTION DISTRICT This Memorandum of Understanding (“MOU”) is an agreement between the City of Cupertino (“City”) and the Santa Clara County Central Fire Protection District (“SCCFD” or “District”) (collectively, the “Parties”) for SCCFD to provide exhibitions, classes and trainings for safety and life preservation including fire safety, injury prevention, and emergency preparedness for the City and the Cupertino community. RECITALS The following recitals are a substantive portion of this agreement. WHEREAS, City and SCCFD previously entered into a five-year agreement for SCCFD to provide exhibitions, classes and trainings for safety and life preservation including fire safety, injury prevention, and emergency preparedness for the City and the Cupertino community, effective October 7, 2019; WHEREAS, City provides recreational classes and activities to its community residents and other individuals on a quarterly and ongoing basis; WHEREAS, SCCFD has expertise in safety and life preservation including fire safety, injury prevention, CPR/AED, and emergency preparedness training; WHEREAS, SCCFD is prepared to offer exhibitions, classes, and trainings for matters such as fire safety, injury prevention, and emergency preparedness (“SCCFD Programs”), to the City and community residents but lacks the facilities to provide such exhibitions, classes and trainings; WHEREAS, City has facilities to hosts recreational classes and activities and can provide those facilities to SCCFD for their use as described in this MOU. NOW, THEREFORE, the Parties hereby agree as follows: 1. The recitals are incorporated herein by reference. 2. Term. This MOU will be retroactively effective July 1, 2024 through June 30, 2029 and can be renewed upon mutual written agreement for an additional five-year term. Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 2 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs 3. Compensation/Payment. This MOU is for the mutual benefit of the Parties. City shall provide SCCFD with a per-student material fee in an amount to be determined by mutual agreement of the Parties prior to the publication of the classes/trainings in the City’s Recreation Schedule. SCCFD shall provide an itemized invoice of the per-student material fee within 30 days of the class date, based on actual enrollment figures compiled by City. City reserves the right to adjust the final invoice based upon adjusted enrollment figures. SCCFD shall invoice City upon completion and acceptance of the Services. Upon submission of an invoice for approval according to this MOU’s Terms and Conditions, City shall pay invoice net 30 days. City reserves the right to withhold payments to SCCFD for amounts reasonable and sufficient to cover City’s costs in processing invoices. 4. Early Termination/Cancellation. This MOU may be terminated/cancelled as follows unless otherwise specified herein: a. Mutual: The Parties may terminate this MOU at any time by their written agreement. b. City’s Sole Discretion: City and/or SCCFD may terminate this MOU at any time with or without cause upon thirty (30) days written notice. SCCFD understands that City may cancel this MOU with or without cause. The MOU may also be terminated should enrollment be insufficient, or should funds or facilities become unavailable, or should the SCCFD not perform the services herein to the satisfaction of City. c. Breach: Either Party may terminate this MOU in the event of a material breach by the other party. To be effective, the party seeking termination must give to the other party written notice of breach and its intent to terminate. Said notice must describe the breach in sufficient detail to provide the other party with adequate notice and an opportunity to cure. If the breaching party does not entirely cure the breach within 15 days of the date of the notice, then the non-breaching party may terminate this MOU at any time thereafter by giving a written notice of termination. d. Consultant Licensing; Bankruptcy: Notwithstanding any other provision herein, City may terminate this MOU immediately by written notice to SCCFD upon either of the following events: 1) denial, suspension, revocation, or non-renewal of any license, permit, insurance, or certificate that SCCFD must hold to perform the Services; or 2) in the event SCCFD files for bankruptcy. e. Furlough: City reserves the right to immediately terminate or otherwise suspend this MOU without notice if City determines that funding for the Services is insufficient. 5. Scope of Work and SCCFD Responsibilities. a. SCCFD agrees to perform the following services: Provide exhibitions, classes, and trainings for matters such as fire safety, injury prevention, and emergency preparedness programs (the “Services”), for the City and community resident’s adult students (“Students”). Specific class description(s), date(s), time(s), and fee(s) for classes offered by SCCFD and/or their employees shall be coordinated and mutually agreed upon with the Parks and Recreation Department staff person Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 3 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs administering the program on a quarterly basis. b. SCCFD will submit program information on a quarterly basis, based on the City’s Recreation Schedule deadlines for publication. c. SCCFD also agrees to perform the following trainings for City staff: CPR/AED and emergency preparedness and will provide the resulting credentials for completed trainings as needed (i.e., CPR/AED certification). Programs and trainings for Students will be coordinated and mutually agreed upon by the appropriate City staff as needed. d. SCCFD shall also provide a booth and/or exhibits at City events when mutually agreed upon to provide information to the community on the SCCFD Programs. e. SCCFD shall acquire, repair, and maintain at its sole cost and expense such equipment as SCCFD needs for the conduct of the Services. The means by which SCCFD shall accomplish the performance of this work shall be under the sole control of SCCFD. f. SCCFD shall have the sole responsibility for hiring, supervising, evaluating, terminating, and/or dismissing its employees according to the terms and conditions of its employment contracts, its employment policies and procedures, and any other document containing the terms and conditions of employment. g. SCCFD shall require any employee instructing City or community programs to have DOJ & FBI fingerprint clearance with subsequent arrest notification, prior to commencing classes with City, and SCCFD will serve as the authorized account holder and Custodian of Records with the Department of Justice (DOJ). SCCFD will also maintain records, and, for those SCCFD employees instructing Students, will provide verification to City that its instructors have current, negative Tuberculosis Test results within the past four years. 6. City Responsibilities. City shall provide the following services to SCCFD, unless the MOU is terminated as set forth in Section 4 above: a. City shall provide general administrative and programmatic oversight of the SCCFD programs, including Student registration. SCCFD may accept additional registrations through other means such as Eventbrite, but such registrants shall sign a City waiver prior to the beginning of the program. Upon request, SCCFD will submit these waivers to the City. b. City will provide classroom space and/or other facilities for SCCFD Programs as Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 4 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs mutually agreed upon. c. City shall include SCCFD Program listings for classes held at Cupertino facilities in the City’s Recreation Schedule. Class descriptions may include general information such as phone numbers or website links for program details. 7. Indemnification. SCCFD shall indemnify, hold harmless, and defend City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants against and from any and all claims, demands, actions, suits, losses, liability, expenses and costs for any injury, death, or damage to any person or property occurring or arising out of, the performance by SCCFD of Services under this MOU except for loss, injury, or damage caused by the sole and active negligence or willful misconduct of City and its officials, employees, and agents. SCCFD understands that it shall use City facilities in their “as is” current condition, that they have had an opportunity to inspect the facilities, and there have been no representations of the construction, condition, or safety of the facilities. In consideration of acceptance of their request to use City facilities, SCCFD hereby RELEASE, DISCHARGE, AND AGREE NOT TO SUE the City of Cupertino, its City Council, officials, officers, agents, employees, or volunteers to the fullest extent legally possible from any injury, death, or damage or loss to personal property arising out of, or in connection with, their use of the facilities from whatever cause, except for injury, death, or damage caused by the sole and active negligence or willful misconduct of personnel employed by City and its officials, employees, and agents. SCCFD understands that City does not guarantee the construction, condition, or safety of the facilities where the activity or event will take place. SCCFD agrees to return the facilities to the City in the same condition in which they found them and further agrees to be liable to the City for any damage to City facilities, regardless of cause, except for damage caused by the sole and active negligence or willful misconduct of personnel employed by City and its officials, employees, and agents. This Indemnification will encompass all services provided by SCCFD during the term of this MOU and will survive the termination or expiration of this MOU. 8. Acknowledgements for Use of Facilities. SCCFD agrees to notify the City, in writing, at least 30 days in advance to cancel the use of any facilities. Late cancellation notices may result in the reduction of facilities provided for that calendar year. SCCFD also agrees to designate a staff member to be present for both a pre-event and post- event inspection of the facility and understands that person’s signature will be required on any inspection reports. Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 5 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs 9. Insurance. a. SCCFD agrees to maintain throughout the term of this MOU, at its own expense, general liability insurance with coverage limits of $2,000,000 per occurrence and $2,000,000 aggregate. This insurance shall be endorsed to include the following: (i) the City of Cupertino, its City Council, Officers, Officials, Employees, Agents, Servants, and Volunteers, are covered as additional insureds on SCCFD’s general liability policy, with SCCFD providing the required certificate of endorsement to City; and (ii) a written notice to be mailed to City 30 days prior to the effective date of a cancellation or non-renewal of such insurance. b. SCCFD agrees to maintain throughout the term of this MOU, at its own expense, an automobile liability policy covering any auto (including owned, hired, and non- owned autos) with limits no less than $1,000,000 per occurrence for bodily injury and property damage. c. SCCFD agrees to maintain throughout the term of this MOU, at its own expense, a workers’ compensation policy as required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. d. SCCFD shall bear sole responsibility for insuring its personal property and contents. 10. Independent Contractor. It is understood that SCCFD in performing such services is an independent contractor for City. Nothing contained in this MOU shall create a partnership, joint venture, or employment relationship between SCCFD and City. Neither SCCFD nor City shall be liable, except as otherwise expressly provided for in this MOU, for any obligations or liabilities incurred by the other with respect to workers’ compensation. City does not provide Workers’ Compensation or Unemployment Insurance for persons performing services as an Independent Contractor. 11. Compliance with Applicable Law. SCCFD shall comply with all federal, state, and local laws, regulations, and administrative rules, as well as all City policies and procedures applicable to public contracts and to the Services, including but not limited to all of the following: a. Licensing Requirements. SCCFD covenants and agrees to obtain and maintain, during the term of this MOU, all necessary government and professional licenses, permits, certifications and incidents of authority required for the legal performance of the Services. SCCFD shall immediately notify City in the event of any license, permit or certification denial, suspension, revocation, or non-renewal. City maintains the right to request and immediately receive evidence of proper licensure and certificates at any time during the term of this MOU. b. Conflicts of Interest. SCCFD warrants and covenants that SCCFD presently has no interest in, nor shall any interest be hereinafter acquired in, any matter which will Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 6 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs render this MOU a violation of any applicable state, local, or federal law, or City policy regarding conflicts of interest. If any conflict of interest should hereinafter arise, SCCFD shall promptly notify City of the existence of such conflict of interest. The existence of a conflict of interest which violates any applicable state, local, or federal law, or City policy shall be cause for immediate termination of this MOU. c. Non-Discrimination. SCCFD represents that it is an equal opportunity employer and acknowledges that it shall not subject any person to unlawful discrimination based on race, color, gender, age, religion, national origin, U.S. military veteran status, marital status, sexual orientation, disability, source of income, or political affiliation in programs, activities, services, benefits, or employment in connection with this MOU. d. Unsupervised Contact: “Unsupervised contact” with students means contact that provides the person opportunity and probability for personal communication or touch with students. SCCFD shall ensure that SCCFD and SCCFD’s officers, employees, and agents will have no direct, unsupervised contact with minor students. SCCFD will work with City to ensure compliance with this requirement. 12. Confidentiality. The Parties are public agencies subject to the disclosure requirements of the California Public Records Act (“CPRA”). In the event of a request to one Party for information submitted to it by the other Party, the Party receiving the request will make best efforts to provide notice to the submitting Party prior to such disclosure. If the submitting Party contends that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required to obtain a protective order, injunctive relief or other appropriate remedy from a court of law before the Party receiving the CPRA request is required to respond to the CPRA request. If the submitting Party fails to obtain such remedy within the time the Party receiving the CPRA request is required to respond to the CPRA request, the latter Party may disclose the requested information. 13. Miscellaneous. a. No Assignment. This MOU is not assignable in whole or in part without the express written consent of City. b. Successors in Interest. This MOU shall bind and inure to the benefit of the Parties, their successors, and approved assigns, if any. c. No Third-Party Beneficiaries. City and SCCFD are the only parties to this agreement and are the only parties entitled to enforce its terms. Nothing in this agreement provides any benefit or right, directly or indirectly, to third parties unless they are individually identified by name in this agreement and expressly described as intended beneficiaries of this MOU. d. Waiver. Failure to require performance of any provision of this MOU is not a waiver of that provision. Any waiver granted by a Party must be in writing and shall apply to the specific instance expressly stated. e. Severability. If any term or provision of this MOU is declared by a court of Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 7 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the agreement did not contain the particular term or provision held invalid. f. Amendments; Renewal. Any renewals to or amendments of the terms of this Agreement must be in writing and signed by authorized representatives of both Parties. g. Notices. All notices or other communications required or provided for by this Agreement shall be sent by electronic mail transmission, United States mail or hand delivery to the representative designated below for each party, or to any such other representative as a party may designate in writing from time to time: For City: Parks and Recreation Department 10185 N. Stelling Road Cupertino, CA 95014 Attention: Director of Parks and Recreation rachelles@cupertino.org For SCCFD: Santa Clara County Central Fire Protection District 1315 Dell Avenue Campbell, CA 95008 Attention: Deputy Chief, Administration and Planning matt.yost@sccfd.org h. Entire Agreement. When signed by both Parties, this MOU (and any attached exhibits) is their final and entire agreement. As their final and entire expression, this MOU supersedes all prior and contemporaneous oral or written communications between the Parties, their agents, and representatives. There are no representations, promises, terms, conditions, or obligations other than those contained herein. i. Survival. Upon termination of this MOU, the respective rights and obligations of the Parties shall survive such termination to the extent necessary to carry out the intentions of the Parties. The sections of this MOU with the headings titled “Access to Records,” “Confidentiality,” and “Indemnification and Hold Harmless” shall survive the termination of this MOU. j. Authority. The undersigned warrant that they are duly authorized representative of the Parties and have been empowered to execute this MOU on behalf of the party indicated. k. Governing Law and Venue. This MOU shall be governed by and construed in accordance with the laws of the State of California. Any action brought relative to any dispute arising under this MOU shall be brought in the Superior Court of California for the County of Santa Clara, which shall be the exclusive venue for any such action. Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 8 of 8 MOU between City of Cupertino and the Santa Clara County Central Fire Protection District for Fire Safety Training and Emergency Preparedness Programs 14. Execution and Counterparts. The parties may execute this MOU in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. The Parties agree that an Electronic Copy or an Electronically Signed version of this MOU is as enforceable as a version executed with an original ink signature. “Electronic Copy” means a copy of an original signed contract saved in Portable Document Format. “Electronically Signed” means a contract that is executed using electronic signature technology approved by SCCFD. IN WITNESS WHEREOF the Parties have executed this Memorandum of Understanding which shall become effective upon the date of the execution of the MOU by all parties. CITY OF CUPERTINO A Municipal Corporation By Name Title Date SANTA CLARA COUNTY CENTRAL FIRE PROTECTION DISTRICT: By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney APPROVED AS TO FORM AND LEGALITY: AARON FORBATH Deputy County Counsel ATTEST: KIRSTEN SQUARCIA City Clerk Date Docusign Envelope ID: 16613214-6F57-4A77-9C55-095663369BFE 11/12/2024 Fire Chief Suwanna L. KerdkaewRachelle Sander 11/12/2024 Director of Parks and Recreation 11/13/2024