15-144 Consultant services agreement, Safe Moves, Bicycle RodeoAGREEMENT BETWEEN THE CITY OF CUPERTINO AND SAFE MOVES
FOR CONSULTANT SERVICES FOR A BICYCLE RODEO
h.
THIS AGREEMENT, for reference dated , 2015, is by and between
CITY OF CUPERTINO, a municipal corporation ( a refened to as "City"), and
Safe Moves (a California non-profit corporation whose address is:
# (hereinafter refened 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 cany 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 this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
ce1iification and knowledge to provide the services described in this Agreement on the
terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for a Bicycle Rodeo
on October 3, 2015 upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM:
·7+~ The tenn of this Agreement shall commence on Augustl2, 2015, and shall
terminate on October 4, 2015, assuming all contracted for services have been provided by
Consultant, unless tenninated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perfonn each and every service set forth in Exhibits "A" which is
attached hereto and incorporated herein by this reference, in accordance with the tenns
and conditions set forth in this agreement.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services perfonned pursuant to this
Agreement in the amount set f01ih in Exhibit "B" which is attached hereto and
incorporated herein by this reference. Compensation under this Agreement shall not
exceed $3000.00. Payment shall be made by checks drawn on the treasury of the City, to
be taken from the [110-'', ... u;r -Tuo.,..,M.-fund.
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4. ACKNOWLEDGEMENT OF MANDATED REPORTING
REQURIEMENTS:
Consultant shall comply with the requirements of California Penal Code 11164-
11174.3 and as set forth in Exhibit "C" which is attached hereto and incorporated herein
by this reference.
5. FINGERPRINT AND TUBERCLOSIS (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 "D" which is attach hereto and incorporated
herein by this reference.
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 by 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 tenns of this Agreement. No civil service
status or other right of employment will be acquired by vi1iue 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
nmmally associated with an employer-employee relationship from any fees due
Consultant. Payments of the above items, 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 perfom1ing 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.
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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 material breach of this Agreement.
10. HOLD HARMLESS:
Indemnification. Consultant shall, to the fullest extent allowed by law, with
respect to all services perfonned 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 perfom1ance 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.
11. INSURANCE:
On or before the commencement of the tenn of this Agreement, Consultant shall
furnish City with ce1iificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance coverage in compliance with the
paragraphs below. Such ce1iificates, which do not limit Consultant's indemnification,
shall also contain substantially 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
perfonnance 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:
(E) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
C01m11ercial general liability coverage in the following mininmm
limits, including coverage for sexual abuse and molestation:
Bodily Injury: $500,000
each occurrence
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$1,000,000
aggregate -all other
Prope1iy Damage: $100,000 each occmTence
$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:
Comprehensive automotive liability coverage m the following
minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
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 which any such insurer of said Consultant
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 comn11ss10ns, 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 premiun1, deductible p01iion of any
loss, or expense of any nature 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
dete1mine 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
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of interest fonn if the services provided under this Agreement require Consultant to make
ce1iain governmental decisions or serve in a staff capacity as defined in Title 2, Division
6, Section 18700 of the California Code 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, sublessee, 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 pminer or joint
venture or syndicate member or cotenant, if Consultant is a partnership or joint venture or
syndicate or cotenancy, 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.
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 perfonnance 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, automobile and professional liability insurance in reasonable conformity
to the insurance carried by Consultant. In addition, m1y work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
15. PER1'1ITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the tenn of
this Agreement, all appropriate pennits, ce1iificates and licenses including, but not
limited to, a City Business License, 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 "Rep01i", reproduced, prepared or
caused to be prepared by Consultant pursuant to or in connection with this Agreement,
shall be the exclusive prope1iy 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 Rep01i, infonnation 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
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:furnished to the City pursuant to this Agreement.
B. All Repmis prepared by Consultant may be used by City in execution or
implementation of:
(1)
(2)
(3)
The original Project for which Consultant was hired;
Completion of the original Project by others;
Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such forn1 as City may require,
furnish repmis concerning the status of services required under this Agreement.
D. All Repmis required to be provided by this Agreement shall be printed on
recycled paper. All Repmis shall be copied on both sides of the paper except for one
original, which shall be single sided.
E. No Report, infornJation 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 pe1mit an evaluation of services. All such records shall be maintained in
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 designees 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, docun1ents, 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 discloses 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 after 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:
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City of Cupe1iino
10300 Torre Ave.
Cupertino CA 95014
Attention: David Brandt
All notices, demands, requests, or approvals from City to Consultant shall be
addressed to Consultant at:
Pat Hines
Executive Director
Safe Moves
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 perforniance of this Agreement. If such default is not cured within the time specified
after receipt by Consultant from City 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 tern1inating
this Agreement by giving seven (7) days' prior written notice to Consultant as provided
herein. Upon termination of this Agreement, each party shall pay to the other paiiy that
pmiion of compensation specified in this Agreement that is earned and unpaid prior to the
effective date of tennination.
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.
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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 tenns or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
Safe.
By:- -'-~~~~~~
Pat H nes; Executive Director
Date 1/Jf/J-O) ')"
CITY OF CUPERTINO
A Municipal Corporation
B~, Tit~PUblic Works Director
Date '!J(rJ,/r {
~frTirST:
Titte6r:f¥~-)Jp (r\
Exhibit "A"
Scope of Services
Safe Moves will conduct a Bicycle and Pedestrian Rodeo for the City of
Cupertino on October 3, 2015.
1. "Safe Moves City" (a miniature city traffic obstacle course)
2. Fifteen (15) Loaner bicycles for use on the course
3. Two (2) Blender Bikes and all necessaiy supplies
4. Two (2) Traffic Safety Games
5. Stop Sign and Traffic Light Costume Characters
6. Four ( 4) Trained Bicycle and Pedestrian Safety Instructors I Two (2)
Support Staff
7. Registration Booth
8. Event Banner
9. Event Flyer/Pemiission Fonn Template
10. Bicycle and Pedestrian Safety printed material
11. Any and all necessary insurance documents
Safe Moves will conduct the bicycle and pedestrian safety rodeo from 9:00 ain to
1: 00 pm. Safe Moves will set up the bicycle and pedestrian safety rodeo at 8: 00
am and be prepared for operation by 9:00 am.
Safe Moves will assist your organization in marketing and promoting the event
with the following:
1. Listing in all print media
2. Listing on electronic media calendars
3. Posting on city and school websites
4. Flyer distribution to schools and community centers
5. Media Release
City of Cupertino will provide:
1. Flat and paved set up area
2. All logos for the banner and flyer template
3. Velucle access to the set up area
4. Printing of flyers
5. $3,000.00 payment
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Exhibit "B"
Compensation
Compensation under this Agreement shall not exceed $3000.00
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EXHIBIT C
ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS,
RECEIPT OF TRAINING, AND RECEIPT OF PENAL CODES 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 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
Cupertino 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.
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• If I reasonably suspect that a child is being abused, I must
immediately make a telephone report. I must follow up with a
written report within 36 hours. This report may be made to local
law enforcement, or County Sheriff's Department, Probation
Department or Child Welfare Agency. (Cal Pen. Code 11166(a)).
• I am not required to, but I may, share information about suspected
abuse with my supervisor or management or the parents of the
alleged victim.
• When I 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 is 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, dismissed, 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 jait 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)).
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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 and able to comply. I understand that a copy of this
knowledgement will be kept in my personnel file.
Name (Signature)
Pat Hines,
Safe Moves
rD te
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EXHIBITD
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. I am a representative of Safe Moves; that I am familiar with the facts
herein and am authorized and qualified to execute this declaration.
2. I declare that Safe Moves 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 employees 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 employees have received training and
understand their responsibilities under the Mandated Reporter laws of
this state and are willing and able to comply.
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 at
the City of Cupertino.
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