16-001 Polly Hu1.or 1--<~~ NO. _________ _
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
POLLY HU
FOR EXERCISE CLASS INSTRUCTION
FY 16-17
THIS AGREEMENT, for reference dated APRIL 25, 2016, is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
as "City"), and POLLY HU, a EXERCISE CLASS INSTRUCTOR, 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 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, 2016, and shall
terminate on June 30, 2017, 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.
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3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services performed pursuant to this
Agreement in the amount set forth below and as described in Exhibit "A" which
is attached hereto and incorporated herein by this reference.
Compensation: 80 % OF REVENUE GENERATED PER SESSION
$25 Annual Administration Fee will be deducted from the first payment. The
contractor shall provide all teaching supplies, such as, but not limited to, dry
erase markers, erasers, and handouts. Copy service at the senior center is 10 cents
a page.
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 performed by Contractor, City may cancel and
withdraw from this Agreement. The total compensation to the Consultant shall
not exceed $8,000.
4. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the performance
of this Agreement.
5. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of specially trained 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.
6. 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
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Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
7. 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.
8. 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.
9. HOLD HARMLESS:
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.
In addition to the obligations set forth 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 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
FY 2016/2017
and fees of litigation.
10. 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 the paragraphs below. 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, including sexual
abuse and molestation 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
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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 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 determine adequate coverage for Consultant.
11. 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.
12. 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
FY 20 16/2017
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 partner
or joint venturer 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.
13. 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.
14. 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
including, but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
15. 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
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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 shalt 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, 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.
16. 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 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, 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 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.
17. NOTICES:
All notices, demands, requests or approvals to be given under this
FY 2016 /2017
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 Recreation and Community Services
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
POLLU HU,
Attention: POLLY HU
18. 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. If Consultant fails to attend scheduled classes
or does not start classes at the scheduled time, such default is not curable, and
the City shall have the option, at its sole discretion, to immediately terminate this
Agreement.
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 classe s, the number of classes and the assigned instructor.
FY 2016/2017
19. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
20. 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.
21. 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
k ind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
22. 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.
23. 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.
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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.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
CONSULTANT CITY OF CUPERTINO
By:
Title:
Date:
A Municipal Corporation
_, _ By: ALEX CORBALIS
8&tR>5 1-~,r&-u /:~itle : RECREATION COORDINATOR
Yk01i Date: LP I \l 0 j \ UJ
RECOMMENDED FOR APPROVAL:
·~~
By: I KIM FREY
Title: RECREATION SUPERVISOR
APPROVED AS TO FORM:
J'/ ,.R_andolph Stevenson Horn,
~ V City Attorney
ATIEST: . ~ ' b[/(le1~(tr
Grace Schmidt ~, z_.,/-(b
City Clerk
EXPENDITURE DISTRIBUTION:
Account No: 100-62-623-700-702
Amount: $8,000
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EXHIBIT A
CONSUL TANT SERVICES TO BE PERFORMED
The CONSUL TANT will provide EXERCISE CLASS INSTRUCTION in, but
not limited to, the following programs:
ONE, 1-HOUR ZUMBA CLASS PER WEEK
TWO, 1-HOUR CHAIR EXERCISE CLASSES PER WEEK
Location and Time of CONSUL TANT Services:
Refer to the SENIOR CENTER NEWSLETTER 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: 10
Maximum: 24
If less than 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 Agreement 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 consultant.
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 Incident Report in the form approved by the
City. The Incident Report must be submitted to the City within 24 hours of the
injury occurring.
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