16-001 Tejal MerchantCITY OF
a
CUPERTINO
SHORT FORM AGREEMENT
CITY OF CUPERTINO
10300 Torre
Avenue
Cupertino,
CA95014
408-777-3200
This Agreement, for reference dated July 27, 2016, is by and between the City of Cupertino
(hereilHfter "City") and Tejal Merchant, an individual, whose address is
(hereinafter "Contractor"), ll.1 consideration of their mutual
covenants, the parties agree as follows:
A. SCOPE OF SERVICES. Contractor shall provide the services further described ll.1
Exhibit "A." All class materials must be provided by contractors. This il1cludes but
is not limited to, photocopies, stationery, and office supplies. If a class requires an
additional fee that is separate from the registration fee, the contract il1structor is
responsible for collecting these fees .
B. TERM. The services and/or materials furnished under this Agreement shall
commence on August 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).
$40 per class.
D. EXHIBITS. The followil1g attached exhibits hereby are made part of this
Agreement:
B Exhibit "A" -Consultant Services to be Performed
121-Exhibit "B" -Mandated Reportil1g
¢Exhibit "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 co1mection with the Agreement, il1demnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volw1teers from and agail1st any and all liability,
claims, actions, causes of action or demands whatsoever agail1st any of them, il1cludil1g any
il1jury to or death of any person or damage to property or other liability of any nature, whether
physical, emotional, consequential or otherwise, arisil1g out, pertailung to, or related to the
performance of this Agreement by Contractor or Contractor's employees, officers, officials,
agents or il1dependent contractors. Such costs and expenses shall il1clude reasonable attorneys'
fees of cow1sel 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 iJ.1demI1ification .
The provisions of tlus Section survive the completion of the Services or termil1ation of tills
Contract.
2. Subcontracting. Contractor has been retail1ed due to tl1eir unique skills and Contractor may
not substitute another, assign or transfer any rights or obligations w1der tl1is Agreement. Unless
prior written consent from City is obtained, only those people whose names are listed on tills
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 abo ve.
(c)Automotive: Comprehensive automotive liability coverage in the following minimum
limits:
Bodily Injury : $500,000 e ach occurrence
Property Damage: $100,000 each occurrence
o r
Combined Single Limit: $500,000 each occurrence
5. Subrogation Waiver. Contractor agrees that in the event of los s due to any of the perils for
which it has agreed to provide comprehensive gener al 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 s hall have the option, at its sole discretion and without cause, of terminating thi s
Agreement by giving thirty (30) days' prior written notice to Consultant as provided herein .
U p o n termina tion of this Agreem ent, each p arty shall pay to the other party that portion of
compensation specified in this Agreement that is earne d and unpaid prior to the effecti v e date of
termina ti on.
City h as no o b ligation to offer any of Con sultant's services to par ticipants, and, unless
m inimum enroll ment for a particular cl ass identified in th e 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 classes, the number of classes and the 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.
CONTRACTOR: CITY OF CUPERTINO:
By:~ By: Colleen Ferris ~
f-Of_ CITY ATIO
~/-L-
CITY CLERK: ATTEST
DATE
f? -l -l.(,
Title: Recreation Coordinator
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
-580 62 613 700 702 $5000.00
S-:r-cJ -(, ~ -C 1.-f }o-v '1-0 L
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSUL TANT will provide Fitness Instruction but not limited to, the following
programs:
Yoga
Location and Time of CONSULTANT Services:
Refer to the 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: 40
In the event that less than the required minimum number of participants shall reques t
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 Tejal Merchant 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 as Tejal Merchant
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.
• 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 w ill 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 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.
Name (Signature)
EXHIBITC
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. I am a representative of Tejal Merchant_that I am familiar with the facts herein and am
authorized and qualified to execute this declaration.
2. I declare that Tejal Merchant 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 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:
Place OilSUltal1tSignature
Staff Title: