16-001 Polly Hu (3)CITY OF
a
CUPERTINO
SHORT FORM AGREEMENT
CITY OF CUPERTINO
10300 Torre
Avenue
Cupertino,
CA95014
408-777-3200
This Agreement, for reference dated June 24, 2016, is by and between the City of
Cupertino (hereinafter "City") and Polly Hu, an individual, whose address is
(hereinafter "Contractor"), in consideration of their
mutual covenants, the parties agree as follows:
A . SCOPE OF SERVICES. Contractor shall provide the services 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 performance of this Agreement, CITY shall pay
Contractor a total amount not to exceed five thousand dollars ($5,000.00). $35 per
Zumba class and $40 per Yoga class
D. EXHIBITS. The following attached exhibits hereby are made part of this
Agreement:
0°'Exhibit "A" -Consultant Services to be Performed
!2l'Exhibit "B" -Mandated Reporting
~xhibit "C" -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 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 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 indemnification.
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 written 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)(b)Liability: Commercial general liability coverage, including sexual abuse
and molestation coverage in the following minimum limits:
Bodily Injury: $500,000each occurrence; $1,000,000aggregate
-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.
(c)Automotive: Comprehensive automotive liability coverage in the following minimum
limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $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 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 cla ss identifie d in the Scope of Services is m e t, City m ay
cancel t hat class w ithout further notice to Consultant or payment under this Agreement. Th e
C ity in its sole discretion may det ermine the type of classes, th e number of cl asses and th e
assigned instructor.
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,
sexual 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 authorized 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 performed 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 permits, 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", reproduced, 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 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. 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 information required by City that relate to the performance of
services under this Agreement, 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 . Contractor 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 there from 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
Contractor receives 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.
CONTRACT COORDINATOR and representative for CITY shall be: Colleen Ferris, Recreation
& Community Services
In witness thereof, the parties have executed this Agreement the day and year first written
above.
CITY OF CUPERTINO: CONTRAC~ -.-/'
By: ~ .~---By: Colleen Ferris ~
Title: f /z/~ cf-71-<_
APPROVALS
9EPARTMENT I IEAD
R~c'l'".-~'o" · ('C'"";,o -
DATE
{,-3o -IG.
Title: Recreation Coordinator
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
570 63 621 700 702 $5000.00
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSUL TANT will provide Fitness instruction in but not limited to, the
following programs:
Zumba, Yoga
Location and Time of CONSULTANT Services:
Refer to CSC monthly fitness schedule. By Mutual agreement of both parties, class
schedule may change
Eligible Participant Minimum and Maximums for CONSULTANT Services:
Minimum: 10
Maximum: 45
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 Consultant, City may cancel and withdraw from this Agreement.
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 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 as Raquel Villaviza 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
Re porting 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 y our Mandated Reporter responsibilities, please contact the
Recreation Supervis or at 408-777-3120 .
I understand that:
• By virtue of my employment or independent contractor status as Raquel
Villaviza 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 (re sulting 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 must follo w up with a written report within 36 hours. This
report may b e made to local law enforcement, or County Sheriff's Department,
Prob ation Department or Child Welfare Agency. (Cal Pen. Code 11166(a)).
• I am n o t require d to, but I may, sh ar e information ab out su sp ect e d abuse with
m y s upervis or or manage m ent or th e parents of the allege d v ictim .
• When I m a ke a mandate d re p ort, I w ill b e re qui re d to give m y n a m e. H owever,
m y identi ty w ill be kept confidenti al unless I eith e r con sent to di s clo sure or if th e
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 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 and able
to comply. I understand that a copy of this Acknowledgement will be kept in my
personnel file.
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~~~~~~~~~~~~-
a tu re) Date
Nam e (Print)
EXHIBITC
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. I am a representative of Polly Hu that I am familiar with the facts herein and am authorized and
qualified to execute this declaration.
2. I declare that Polly Hu 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 Deparhnent 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 Consultant's employees assigned to perform services under this agreement:
6. Consultant agrees to complete background check, TB testing and mandated reporter training
and notify City in writing in advance of assigning any new employees to perform services
under this agreement.
I declare under penalty of perjury that the foregoing is true and correct:
6/~~;L
Date
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