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16-001 Dina BistryCITY OF a SHORT FORM AGREEMENT CUP E RTINO CITY OF CUPERTINO 10300 Torre Avenue Cupe1tino, CA95014 408-777-3200 NO. This Agreement, made and entered into this 13th day of June, 2016,(the "Effective Date") is by and between the City of Cupertino (hereinafter "City") and Dina Bistry (hereinafter "Contractor"), in consideration of their mutual covenants, the paities agree as follows: A. SCOPE OF SERVICES. Contractor shall provide or furnish the following specified services and/or materials: Fitness Instruction Services are further described in Exhibit "A". B. TERM. The services and/or materials furnished under this Agreement shall commence on July 1, 2016 and shall be completed no later than June 30, 2017. C. COMPENSATION. For the full perfonnance of this Agreement, CITY shall pay Contractor a total amount not to exceed five thousand dollars ($5000 .00). Consisting of the following : $39 per 60 minute class D. EXHIBITS. The following attached exhibits hereby are made part of this Agreement: ,(]Exhibit "A"-Scope of Services DExhibit "B"-Acknowledgement of Mandated Reporting Requirements, Receipt of Training , and Receipt of Penal Code Statutes Exhibits "B" and "C" are for anyone working with minors DExhibit "C"-City of Cupertino , Consultant Declaration GENERAL TERMS AND CONDITIONS 1. Hold Harmless. Contractor shall, to the fullest extent allowed by law and without limitation of the provisions of this Agreement related to insurance , with respect to all services perfom1ed 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 perfomiance of this Agreement by Contractor or Contractor'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. The acceptance of the Services by City shall not operate as a waiver of the right of indenmification. The provisions of this Section survive the completion of the Services or termination of this Contract. 2. Subcontracting. Contractor has been retained due to their unique skills and Contractor may not substitute another, assign or transfer any rights or obligations under this Agreement. Unless prior written consent from City is obtained, only those people whose names are listed on this Agreement shall be used in the performance of this Agreement. 3. Assignment. Contractor may not assign , transfer, or subcontract this Agreement or any portions thereof, without prior \Vritten consent of City. 4. Insurance. Contractor shall maintain the following insurance coverage, with the City as an additional named insured , and provide a Certificate of Insurance and Additional Insured Endorsement consistent with the following requirements: (a)Workers' Compensation: Statutory coverage as required by the State of California. (b )Liability: ConIBiercial general liability coverage, including sexual abuse and molestation coverage, in the following minimum limits : Bodily Injury: $500 ,000each occurrence ; $1 ,000 ,000aggregate -all other Prope1ty 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. (c)Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: Property Damage: $500 ,000 each occurrence $100 ,000 each occurrence or Combined Single Limit: $500 ,000 each occurrence 5. Subrogation Waiver. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor herein , a waiver of any right to subrogation which any such insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. 6. Termination of Agreement. In the event Contractor fails or refuses to perfonn any of the provisions hereof at the time and in the manner required hereunder, Contractor shall be deemed in default in the performance of this Agreement. If Contractor fails to cure the default within the time specified and according to the requirements set forth in City's written notice of default , and in addition to any other remedy available to the City by law, the City Manager may terminate the Agreement by giving Contractor \¥ritten notice thereof, which shall be effective inunediately. The City Manager shall also have the option , at its sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Contractor as provided herein. Upon receipt of any notice of termination , Contractor shall immediately discontinue perfonnance. 7. Non-Discrimination. Contractor shall not discriminate against a job applicant , employee, City employee, or a citizen on the basis of race , color, national origin, ancestry, religion , gender, sex ual orientation or other protected class of such person. 8. Interest of Contractor. It is understood and agreed that this Agreement is not a contract of employment and , at all times, Contractor shall be deemed to be an independent contractor and Contractor is not authori zed to bind the City to any contracts or other obligations in executing this Agreement. Contractor certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of City. City shall have no right of control as to the manner Contractor performs the services to be performed. Nevertheless , City may, at any time , observe the manner in which such services are being perfom1ed by the contractor. Contractor shall comply with all applicable Federal , State, and local laws and ordinances including, but not limited to , unemployment insurance benefits, FICA laws , and the City business license ordinance . 9. Permits and Licenses. Contractor, at his/her own expense, shall obtain and maintain during the term of this Agreement, all appropriate pem1its , licenses , and certificates including but not limited to a City business license, that may be required in connection with the performance of services under this Agreement. 10. Reports and Records. Each and every report , draft , work product, map , record and other document , hereinafter collectively referred to as "Report", reprodu ced , prepared or caused to be prepared by Contractor pursuant to or in connection with this Agreement, shall be the exclusive property of City. Contractor shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the cop yright to Reports created pursuant to this Agreement. Any Report, infonnation and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Contractor may retain a copy of any report furnished to the City pursuant to this Agreement. Contractor shall maintain complete and accurate records with respect to sales , costs , expenses , receipts and other such infom1ation required b y City that relate to the performance of services under this Agreement, in s ufficient detail to pe1mit an evaluation of services . All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly id entified and readily accessible. Contractor shall provide free access to such books and records to the repres entatives of City or its designees at all proper times , and gives City th e 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) ye ars after Contractor receive s final payment from City for all services required under this agreement. 11. Changes. No changes or variations of any kind are authorized without the written consent of the City. CON TRACT CO-ORDINATOR and representative for CITY sha ll b e: Karen Levy, Recreatio n a nd Community Services · In w itn ess thereof, the parties h ave executed thi s Agreem ent th e day and year first written above. CONTRACTOR: CITY OF CUPERTINO: ;:_·---_··--_·---_--··~--·~----~- "" By :_~K=ar~e=n~L=e~vv_,__~~"'=~ .. , ____ _ Title:_~F~i=tn=e=ss~I=n=s=tru~ct=o=r _________ _ Title :_~R=e=c~re=a=tl=· o=n~C~o~o=r=d1=· n=at=o~r ___ _ APPROVALS EXPENDITURE DISTRIBUTION ACCOUNT NUMBER AMOUNT 580-63-620 700-702 $5000.00 EXHIBIT A CONSULTANT SERVICES TO BE PERFORl\fED The CONSULTANT will provide instruction in, but not limited to, the following programs: Dance 'n' Fit Latin Heart Beat Location and Time of CONSULT ANT Services: Refer to the 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: 5 Maximum: 20 If less than the required minimum number of participants emoll in and pay for a paiiicular class as identified in the schedule before the class is scheduled to staii, the City may cancel the paiiicular class and/or terminate this Agreement without additional notice or payment to Consultant. Performance of CONSULTANT Services: City shall ha ve no right of control as to the manner Consultant perfonns the services to be perfom1ed. Nevertheless, City may, at any time , observe the manner in which such services are being perfom1ed by the consultant. The Consultant shall follow all guidelines pe1iaining to registration procedures as listed in the quarterly recreation schedule. Paiiicipants may not take paii in the program unless they are listed on the class roster or can show proof of emollment. All participants and volunteers need to complete the City 's Waiver of Liability fonn 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 occutTing to a paiiicipant, the Consultant will notify the City within 1 hour and complete an Incident Rep01i in the form approved by the City . The Incident Report must be submitted to the City within 24 hours of the injury occurring.