14-001 Melissa Swick OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE - CUPERTINO,CA 95014-3255
TELEPHONE:(408)777-3223• FAX: (408)777-3366
C U P E RT 1 NI O WEBSITE:www.cupertino.org
June 26, 2014
Re: Agreement for consultant services.
Enclosed is a fully executed copy of the above stated agreement with the City of Cupertino.
If you have any questions or need additional information, please contact the Parks and
Recreation department at 408-777-3120.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Parks & Recreation
NO. .���
FY 14-15
AGREEMENT BETWEEN THE CITY OF.CUPERTINO AND Mel.i sa Swick OR
CONTRACT SERVICES /`-'_�>j f
This Agreement, for reference dated June 12, 2014, is by and between-City of
Cupertino, a municipal corporation (hereinafter referred to as "City"), and
sole proprietorship, whose address is
(hereinafter referred to as "Consultant"), and is made with reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State.of California with the power to carry on its business as it is now
being conducted under the Constitution and the statutes of the State of California and
the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to perform the
special services which will be required by thin Agreement; and
C. Consultant possesses the skill„ experience, ability, background,
certification and knowledge to provide the sE.Irvices described in this Agreement on the
terms and conditions described herein.
D. City and Consultant desire to Enter into an agreement for gymnastics
-programs Services upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM:
The term of this Agreement shall cornmence on July 1, 2014 and shall terminate
on June 30, 2015, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A" which is
attached hereto and incorporated herein by this reference.
3: COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services performed pursuant to this
Agreement in the amount-set forth below. The total compensation under the Agreement
is not to exceed $12,000.00
r
Compensation
Classes: 55 Min Classes: $42/Class
30 Min Classes: $21/Class
Personal Training: 60% of completed personal training appointments
The City will issue 1 payment per month.
4. ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS:
Consultant shall comply with the requirements of California Penal Code 11164-
11174.3 and as set forth in Exhibit "B" which its attached hereto and incorporated herein.
by this reference.
FINGERPRINT AND TUBERCULOSIS (TB) CONSULTANT DECLARATION:
Consultant agrees that all individuals covered under this Agreement shall provide
fingerprints for criminal background test purposes and results of TB screening, pursuant
to the requirements as set forth in Exhibit "C" which is attach hereto and incorporated
herein by this reference.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding_ the performance of this
Agreement.
6. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate
with the prevailing standards of like professionals in the San Francisco Bay Area and
agrees that all services shall be performed bly qualified and experienced personnel who
are not employed by the City nor have any contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by this
Agreement is that of an independent contractor. The manner and means of conducting
the work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the express terms of this Agreement. No civil service
status or other right of employment will be acquired by virtue of Consultant's services.
None of the benefits provided by City to its employees, including but not limited to,
unemployment insurance, workers' compensation plans, vacation and sick leave are
available from City to Consultant, its employees or agents. Deductions shall not be
made for any state or federal taxes, FICA payments, PERS payments, or other
purposes normally associated with an employer-employee relationship from any fees
due Consultant. Payments of the above itenns, if required, are the responsibility of
Consultant.
8. IMMIGRATION REFORM AND CONTROL.ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees performing work hereunder,
pursuant to all applicable IRCA or other federal, or state rules and regulations.
Consultant shall indemnify and hold City harmless from and against any loss, damage,
liability, costs or expenses arising from any noncompliance of this provision by
Consultant.
9. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, (consultant.agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race, religious
creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy,
sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all
violations of this provision shall constitute a imaterial breach of this Agreement.
10. HOLD HARMLESS:
A. Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend, and
hold, harmless the City and its officers, officials, agents, employees and
volunteers from and against any and all liability, claims, actions, causes of action
or demands whatsoever against any of them, including any injury to or death of
any person or damage to property, or other liability of any nature, whether
physical, emotional, consequential or otherwise, arising out, pertaining to, or
related to the performance of this Agreement by Consultant or Consultant's
employees, officers, officials, agents or independent contractors. Such costs and
expenses shall include reasonable attorneys' fees of counsel of City's choice,
expert fees and all other costs and fees of litigation.
B. Claims for Other Liability. Consultant shall, to the fullest extent allowed
by law, with respect to all services performed in connection with the Agreement,
indemnify, defend, and hold harmless the City and its officers, officials, .agents,
employees and volunteers against any and all liability, claims, actions, causes of
action or demands whatsoever from and against any of them, including any injury
to or death of any person or damage- to property or other liability of any nature,
that arise out of, pertain to, or relate; to the negligence, recklessness, or willful
misconduct of Consultant or Consultant's employees, officers, officials, agents or
independent contractors. Such costs and expenses shall include reasonable
attorneys' fees of counsel of City's choice, expert fees and all other costs and
fees of litigation. Consultant shall not be obligated under this Agreement to
indemnify City to the extent that the, damage is caused by the sole or active
negligence or willful misconduct of City, its agents or employees.
C. Claims involving intellectual,proper�rjy. In addition to the obligations set forth in
(A) and (B) above, Consultant shall indemnify, defend, and hold the City, its
elected and appointed officers, employees, and volunteers, harmless from and
against any Claim in which a violations of intellectual property rights, including but
not limited to copyright or patent rights, is alleged that arises out of, pertains to,
or relates to Consultant's negligence, recklessness or willful misconduct under
this Agreement. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert:fees and all other costs and fees of
.litigation.
11. INSURANCE:
On or before the commencement of the term of this Agreement, Consultant shall
furnish City with certificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance coverage in compliance with
paragraphs 12 A, B, C, D and E. Such certificates, which do not limit Consultant's
indemnification, shall also contain substantivally the following statement: "Should any of
the above insurance covered by this certificate be canceled or coverage reduced before
the expiration date thereof, the insurer affording coverage shall provide thirty (30) days'
advance written notice to the City of Cupertino by certified mail, Attention: City
Manager." It is agreed that Consultant shall maintain in force at all times during the
performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is acceptable to City and licensed to do
insurance business in the State of.California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum
limits:
Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate - all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of$1,000,000 Will be considered equivalent to the
required minimum limits shown above.
(3) Automotive:
Proof of automobile insurance required at the California statutory
minimums.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for which
he/she has agreed to provide comprehensive, general and automotive liability insurance,
Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants
to City, on behalf of any insurer providing comprehensive general and automotive
liability insurance to either Consultant or City,with respect to the services of Consultant
herein, a waiver of any right to subrogation iN,hich any such insurer of said Consultant
o '
may acquire against City by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or maintain
the foregoing insurance, City shall be permitted to obtain such insurance in the
Consultant's name or as an agent of the Consultant and shall be compensated by the
Consultant for the costs of the insurance premiums at the maximum rate permitted by
law and computed from the date written notice is received that the premiums have not
been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees.and
volunteers shall be named as an additional insured under all insurance coverages,
except any professional liability insurance, required by this Agreement. The naming of
an additional insured shall not affect any recovery to which such additional insured
would be entitled under this policy if not named as such additional insured. An
additional insured named herein shall not be held liable for any premium, deductible
portion of any loss, or expense of any natures on this policy or any extension thereof.
Any other insurance held by an additional insured shall not be required to contribute
anything toward any loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to
protect Consultant. Consultant is advised to confer with Consultant's insurance broker
to determine adequate coverage for Consultant.
12. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perform
the services required by this Agreement. Consultant may be required to*fill out a conflict
of interest form if the services provided under this Agreement require Consultant to
make certain governmental decisions or serve in a staff capacity as defined in Title 2,
Division 6, Section 18700 of the California Cede of Regulations.
13. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement,
or any interest therein, directly or indirectly, by operation of law or otherwise, without
prior written consent of City. Any attempt to do so without said consent shall be null and
void, and any assignee, sub-lessee, hypothecate or transferee shall acquire no right or
interest by reason of such attempted assignment, hypothecation or transfer. However,
claims for money by Consultant from City under this Agreement may be assigned to a
bank, trust company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly Furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venture or syndicate member or cotenant, if Consultant is a partnership or joint venture
or syndicate or co-tenancy, which shall result in changing the control of Consultant,
shall be construed as an assignment of this Agreement. Control means fifty percent
(50%) or more of the voting power of the corporation.
I
14. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is.obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be
used in the performance of this Agreement.
In the event that Consultant employs .subcontractors, such subcontractors shall
be required to furnish' proof of workers' compensation insurance and shall also be
required to carry general, and professional liability insurance in reasonable conformity to
the insurance carried by Consultant. In addition, any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
15. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, certificates and that may be required in
connection with the performance of services hereunder.
16. REPORTS:
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report", reproduced, prepared or
caused to be prepared by Consultant pursuant to or in connection with this Agreement,
shall be the exclusive property of City. Consultant shall not copyright any Report
required by this Agreement and shall execute appropriate documents to assign to City
the copyright to Reports created pursuant to this Agreement. Any Report, information
and data acquired or required by this Agreement shall become the property of City, and
all publication rights are reserved to City. Consultant may retain a copy of any report
furnished to the City pursuant to this Agreement..
B. All Reports prepared by Consultant may be used by City in execution or
implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of.the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time rind in such form as City may require,
furnish reports concerning the status of services required under this Agreement.
D. All-Reports required to be proviided by this Agreement.shall be printed on
recycled paper. -All Reports shall be copied on both sides of the paper except for one
original, which shall be single sided.
E. No Report, information or other,data given to or prepared or assembled by
Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without prior approval by City.
17. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts and other such information required by'City that relate to the
performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in sufficient
detail to permit an evaluation of services. All such records shall be maintained in
o
accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Consultant shall provide free access to such books and records
to the representatives of City or its de-signees at all proper times, and gives City the
right-to examine and audit same, and to make transcripts therefrom as necessary, and
.to allow inspection of all work, data, documents, proceedings and activities related to
this Agreement. Such records, together with supporting documents, shall be kept
separate from other documents and records and shall be maintained for a period of
three (3) years after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's supplemental
examination or audit of the records discloser., a failure to adhere to appropriate internal
financial controls, or other breach of contract: or failure.to act in good faith, then
Consultant shall reimburse City for all reasonable costs and expenses associated with
the supplemental examination or audit.
18. NOTICES:
All notices, demands,,requests or approvals to be given under this Agreement
shall be given in writing and conclusively shall be deemed served when delivered
personally or on the second business day aft er the deposit'thereof in the United States
Mail, postage prepaid, registered or certified.,, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Consultant to City shall be
addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Director of Parks and Recreation
All notices, demands, requests, or approvals from City to Consultant shall be
addressed to Consultant at:
19. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default
in the performance of this Agreement. If such default is not cured within the time
specified after receipt by Consultant from Citj of written notice of default, specifying the
nature of such default and the steps necessary to cure such .default, City may terminate
the Agreement forthwith by giving to the Consultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving thirty (30) days' prior written notice to Consultant as provided
herein. Upon termination of this Agreement, each party shall pay to the other party that
portion of compensation specified in this Agreement that is earned and unpaid prior to
the effective date of termination.
City has no obligation to offer any of Consultant's services.to participants, and,
unless minimum enrollment for a particular class identified in the Scope of Services is
met, City may cancel that class without further notice to Consultant or payment under
this Agreement. The City in its sole discretion may determine the type of classes, the
number of classes,. and any assigned instructor. Consultant understands that this is an
non-exclusive agreement.
20. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules
and regulations enacted or issued by City.
21. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State
of California excepting any choice of law rulES which may direct the application of laws
of another jurisdiction. The Agreement and obligations of the parties are subject to all
valid laws, orders, rules, and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities.)
Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Santa Clara, State of California.
22. ADVERTISEMENT:
Consultant shall not post,-exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any kind
pertaining to the services performed under this Agreement unless prior written approval
has been secured from City to do otherwise.
23. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained herein, whether of the same or a different
character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereof. Any modification of this
Agreement will be effective only by written execution signed by both City and
Consultant.
24. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement
shall be deemed to be enacted herein, and the Agreement shall be read and enforced
as though each were included herein. If through mistake or otherwise, any such
provision is not inserted or is not correctly inserted, the Agreement shall be amended to
make such insertion on application by either party.
25'. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit or amplify the terms or provisions of this
Agreement.
1
IN WITNESS WHEREOF, the parties hereto have caused this modification of
Agreement to be executed.
Melissa Swick CITY OF CUPERTINO
A Municipal Corporation
5E5OMMENDED FOR APPROVAL:
D' ector of Parks and Recreation
ate:
AROVED AS TO FORM:
,City Attorney
Date: r,
ATTEST:
t Citv Clerk
Date:. (d(D,42-M4
EXPENDITURE DISTRIBUTION:
570-6450-1014 $12,000.00
Account Number Amount
21 /
' r
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULTANT will provide Personal 'Training, Fitness Class Instructor, but
not limited to, the following programs:
Describe: Strength Training, Circuit Training„ TRX, Yoga.
Location and Time of CONSULTANT Services:
Refer to current Fitness Schedule for agreed upon dates, times, and class locations. By
Mutual agreement of both parties, class schedule may change.
Eligible Participant Minimum and Maximums for CONSULTANT Services:
Minimum' : .6
Maximum: 50
If the required minimum number of participants enroll in and pay for a particular class as
identified in the schedule before the class is scheduled to start, the City may cancel the
particular class and/or terminate this Agreer-gent without additional notice or payment to
Consultant.
Performance of CONSULTANT Services:
City shall have no right of control as to the manner Consultant performs the services to
be performed. Nevertheless, City may, at any time, observe the manner in which such
services are being performed by the.consultCant.
The Consultant shall follow all guidelines pertaining to*registration procedures as listed
in the quarterly recreation schedule. Participants may-not take part in the program
unless they are listed on the class roster or can show proof of enrollment. All
participants and volunteers need to completE! the City's Waiver of Liability form prior to
taking part in the program. Contractors are responsible for supervising minors after
class until a parent of legal guardian has arrived.
In the event of an injury occurring to a participant, the Consultant will notify the City
within 1 hour and complete an ABAG Incident Report. The ABAG Incident Report must-
be submitted to the City within 24 hours of the injury occurring.
i
EXH1131T B
ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS, RECEIPT
OF TRAINING, AND RECEIPT OF PENAL C#ODES STATUTES
A mandated reporter is an individual who is obligated by law to report suspected cases
of child abuse and neglect. In general, any individual who, in the ordinary course of
their employment, has contact with children is a mandated reporter. Mandated -
reporters include child care workers, teachers and coaches. (California-Penal Code
11165.7).
If your job duties as an employee or an independent.contractor of Melissa Swick
include contact with children, you are a Mandated Reporter. Prior to commencing
employment and as a prerequisite of that employment, California law requires that you
sign a statement to the effect that you have knowledge of the provisions of the
Mandated Reporter Law, and will comply with those provisions. (California Penal Code
11166.5).
The following are the Mandated Reporter responsibilities under California law. You are
also being provided with a separate informational document which includes the text of
the California Mandated Reporter Law and contact information for Child Abuse and
Neglect Reporting for the County of Santa Clara. Please review this information
carefully and!acknowledge your receipt and understanding where indicated. If you have
questions or concerns about this form or your Mandated Reporter responsibilities,
please contact the Recreation Supervisor at .408-777-3120.
I understand that:
• By virtue of my employment or independent contractor status with,
Melissa Swick and because my employment requires me to have contact
with children, I am a Mandated Reporter as defined by California Penal
Code 11165.7.
• The following situations trigger mandatory reports: a) Physical Abuse
(willful harming of a child); b) Sexual abuse,including sexual assault, child
exploitation, pornography, and trafficking; c) Severe or General Neglect;
and d) Extreme Corporal Punishment (resulting in injury). (Cal. Pen. Code
11165 et. seq.) I further understand that I may, but am not required to,
'report suspected Emotional Abuse.
• 'If I reasonably suspect that a child is being abused, I must immediately
make a telephone report. I mwst follow up with a written report within 36
hours. This report may be made to local law enforcement, or County
Sheriff's Department, Probations Department or Child Welfare Agency.
(Cal Pen. Code 11166(a)).
I t'
• 1 am not required to, but I may, share information about suspected abuse
with my supervisor or managernent or the parents of the alleged victim.
• When 1 make a mandated report, I will be required to give my name.
However, my identity will be kept confidential unless I either consent to
disclosure or if the disclosure i;S made pursuant to a court order. Further,
agencies investigating the mandated report may.disclose my identity to
one another. (Cal Pen. Code 11167(d)).
• The following agencies and individuals receiving or investigating
mandated reports may disclose my identity to one another:
o Prosecutors in a criminal prosecuting or in an action initiated under
section 602 of the Welfare and Institutions Code arising from
alleged child abuse;
o Counsel appointed pursuant to subdivision (c) of Section 317 of the
Welfare and Institutions Code;
o A licensing agency when. abuse or neglect in out-of-home care is
reasonably suspected. (Cal Pen. Code 11167.5)
• I may not be disciplined, dismi-ssed, retaliated.against, discriminated
against or harassed for making a mandated report of reasonably
suspected child abuse.
• As a Mandated Reporter, I have civil and criminal immunity when making
a report (Cal Pen. Code 11172).
• As a Mandated Reporter, it is a misdemeanor to fail to comply with
Mandated Reporting laws and I can be held criminally liable for
failing to report suspected abuse. The penalty for this is up to six
months in County jail, a fine of not more than $1000, or both. I further
understand I could be civilly liable for failure to report. (Cal. Pen. Code
11166(c)).
I have been provided with a copy of California Penal Code sections 11164-11174.3
(Mandated Reporter Law).
I understand that I am a legally Mandated Reporter. I am aware of and understand
my responsibilities under the Mandated Reporter laws of this state and am willing
Date
Name (Print)
EXHIE31T C
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. 1 am a representative of Melissa Swic:k (consultant or company name); that I am
familiar with the facts herein and am authorized and qualified to execute this
declaration.
2. 1 declare that Melissa Swick (consultant or company name) has complied with
fingerprinting and criminal background investigation requirements with respect to
all Consultant's employees who may have contact with minors in the course of
providing services pursuant to the Agreement, and the California Department of
Justice has determined that none of those employees has been convicted of a
felony, as that term is defined in California Penal.Code Section 11105.3.
3. That a complete and accurate list of Consultant's employees, who may come in
contact with minors during the course and scope of the Agreement, are included
below.
4. All of the below mentioned employee-, have tested negative for TB, or X-ray
results for TB, and have current documentation on file with Consultant.
5. All of the below mentioned employee-, have received training and understand
their responsibilities under the Mandated Reporter laws of this state and are
willing and able to comply.
A List of all Consultant Employees Working for the City of Cupertino:
6. The City of Cupertino will be notified by Consultant in writing of any new
employees and will be added to the above list prior to beginning work for the City
of Cupertino.
I declare under penalty of
T I