15-001 Consulate General of the Republic of Korea, Korean Education CenterNO._~_(,__A __ _
FY 15-16
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
CONSULATE GENERAL OF THE REPUBLIC OF KOREA, KOREAN EDUCATION CENTER
FOR CONTRACT SERVICES
THIS AGREEMENT, for reference dated September 3, 2015, is by and between CITY OF
CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Consulate General of the
Republic of Korea, Korean Education Center, whose address is
(hereinafter refeITed to as "Consultant11
), and is made with reference to the following:
RECITALS:
A. City is a mm1icipal corporation duly organized and validly existing under the laws of the
State of California with the power to caITy on its business as it is now being conducted under the
Constitution and the statutes of the State of California and the Cupertino Mmlicipal Code.
B. Consultant is specially trained, experienced and competent to perfonn the special
services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background, certification 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 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 commence on July 1, 2015, and shall tenninate on June 30,
2016, unless tenninated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set fmih in Exhibit 11 A" which is attached hereto
and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services perfom1ed pursuant to this Agreement in the
amount set forth below. The total compensation under the Agreement is not to exceed $0.00.
Compensation:
Classes: $0 per participant. Instructor will collect a material fee in class.
Consultant may use the conference room for a staff meeting relating to Korean Language classes that are
taught in our facility. Consultant may request the conference room one time during the duration of this
contract. Reservation request is not to exceed 2 hours. Date requested by consultant must be cleared with
staff and approved by supervisor at least 1 week prior to reservation.
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 is attached hereto and incorporated herein by this reference.
5. FINGERPRINT AND 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.
6. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the performance of this Agreement.
7. 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.
8. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by this Agreement is that
of employer-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 items, if required, are the
responsibility of Consultant.
9. 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 hamlless from and
against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by
Consultant.
10. 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.
11. 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 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.
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 prope1iy. 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, hamtless from and against any Claim in which a violation 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.
12. 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 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 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 occun-ence
$1,000,000 aggregate -all other
Property Damage: $100,000 each occun-ence
$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.
( 4) Professional Liability:
Professional liability insurance which includes coverage for the professional acts,
errors and omissions of Consultant in the amount of at least $1,000,000.
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 pennitted 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 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 detemrine adequate
coverage for Consultant.
13. 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 Code of
Regulations.
14. 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.
15. 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.
h1 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 can1ed by Consultant. h1
addition, any work or services subcontracted hereunder shall be subject to each provision of this
Agreement.
16. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement,
all appropriate permits, certificates, and licenses that may be required in connection with the perforn1ance
of services hereunder.
17. 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.
of:
B. All Reports prepared by Consultant may be used by City in execution or implementation
(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 form as City may require, furnish reports
concerning the status of services required under this Agreement.
D. All Reports required to be provided 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, inforn1ation 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.
18. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales, costs, expenses,
receipts and other such infonnation 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 pernut 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 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 tins 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
prelinunary examination or audit ofrecords, 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 rein1burse City for all reasonable costs and expenses
associated with the supplemental examination or audit.
19. 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:
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:
Korean Education Center
Consulate General of the Republic of Korea
Attention: J oosik Shin
(
20. 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 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 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.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and regulations
enacted or issued by City.
22. 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.
23. 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.
24. WAIVER:
A waiver by City of any breach of any tenn, 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.
25. 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 con-ectly inserted, the
Agreement shall be amended to make such insertion on application by either party.
26. 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.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT CITY OF CUPERTINO
A Municipal Corporation
By: Marilu Mejia
Title: Recreation Coordinator
Date: September 2, 2015
RECOMMENDED FOR APPROVAL:
A~RM:
City Attorney
EXPENDITURE DISTRIBUTION:
580-62-613-700-702
Account Number
$0.00
Amount
EXHIBIT A
CONSULT ANT SERVICES TO BE PERFORMED
The CONSULT ANT will provide Teen and Adult Classes in, but not limited to, the
following programs:
Korean Language and Culture
Location and Time of CONSULTANT Services:
Refer to current Recreation 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: 2
Maximum: 20
In the event that less than the required minimum number of participants shall request and
pay for services prior to the agreed upon time for the commencement of services to be
perfonned by Consultant, City may cancel and withdraw from this Agreement.
Performance of CONSULTANT Services:
City shall have no light of control as to the manner Consultant perfonns the services to be
perfonned. Nevertheless, City may, at any time, observe the manner in which such
services are being perfonned by the consultant.
The Consultant shall follow all guidelines pertaining to registration procedures as listed
in the quarterly recreation schedule. Paiiicipants 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 fonn plior 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.
EXHIBITB
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 of Consulate General of the
Republic of Korea 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 inforn1ational document which includes the text of the
California Mandated Reporter Law and contact infonnation for Child Abuse and Neglect
Reporting for the County of Santa Clara. Please review this infonnation carefully and
acknowledge your receipt and understanding where indicated. If you have questions or
concerns about this forn1 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 Consulate
General of the Republic of Korea, 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
hanning of a child); b) Sexual abuse including sexual assault, child exploitation,
pornography, and trafficking; c) Severe or General Neglect; and d) Extreme
Corporal Punislm1ent (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 iimnediately 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 infonnation 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 31 7 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 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 11164-1117 4.3
(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 Acknowledgement will be kept in my
personnel file.
;
Name (S7;1,ature) Date
CH vi Cf1UL,, <;075 ft/
Name (Print)
EXHIBITC
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. I am a representative of Consulate General of the Republic of Korea; that I am familiar with the
facts herein and am authorized and qualified to execute this declaration.
2. I declare that Consulate General of the Republic of Korea 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 Califomia Department of Justice has detennined that none of those employees has been
convicted of a felony, as that term is defined in Califomia 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 cunent 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.
A List of all Consultant Employees Working for the City of Cupertino:
Sun /o CA l'lo .
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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 perjury that the foregoing is true and conect:
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