17-001 San Francisco Shakespeare Festival NO.
FY 17-18
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
SAN FRANCISCO SHAKESPEARE FESTIVAL
FOR THEATER CLASSES AND CAMPS
THIS AGREEMENT,for reference dated December 14, 2016, is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
as "City"), and San Francisco Shakespeare Festival, a California Non-Profit
Organization, whose address is P.O. Box 460937(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 1,2017, and shall
terminate on June 30,2018, 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: Theater Camp:Payment will be paid by San Francisco
Shakespeare Festival at a compensation of 30% of the registration fee per
participant to the City by the end of the program.
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.
4. ACKNOWLEDGEMENT OF MANDATED REPORTING
REOURIEMENTS:
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 TUBERCLOSIS (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
attached 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 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.
8. 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
FY 2017/2018
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 harmless 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:
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.
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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 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 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) Liabili :
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
FY 2017/2018
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
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.
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
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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.
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.
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
including,but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
17. REPORTS:
A. Each and every report,draft, work product,map, record and other
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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.
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 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,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.
18. 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
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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.
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 Recreation and Community Services
J
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
San Francisco Shakespeare Festival
P.O. Box 460937
San Francisco, CA 94146
Attention: Carl Holvick-Thomas
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
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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 classes, the number of classes and the assigned instructor.
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 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.
25. 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.
26. INSERTED PROVISIONS:
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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.
27. 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.
CONSULT NT CITY OF CUPERTINO
i A Municipal C poration
By: Carl Holvick-Thomas Byee:
ustin Cecil, CPR
Title: Education Director TitRecreation Coordinator
Date: !.. f 7 Date: 12/14/2016
I RECOMMENDED OR APPROVAL:
By: Mariah Dabel
Title: Recreation Manager
APPROVED AS TO FORM:
Randolph Stevenson Holm,
City Attorney
ATTEST:
Grace Schmidt ]-�
City Clerk
FY 2017/2018
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULTANT will provide youth camps in,but not limited to,the
following programs:
Upstart Teen Crow Camp
Location and Time of CONSULTANT Services:
Refer to the Recreation Schedule dated Summer 2017 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: 30
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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EXHIBIT B
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
CONTRACTOR. 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 with
CONTRACTOR, 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.
FY 2017/2018
• 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 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 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).
FY 2017/2018
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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Name (Signature) ate
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Name (Print)
FY 2017/2018
EXHIBIT C
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. I am a representative of San Francisco Shakespeare Festival;that I am
familiar with the facts herein and am authorized and qualified to execute
this declaration.
2. I declare that San Francisco Shakespeare Festival 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.
A List of all Consultant Employees Working for the City of Cupertino (if no
Employees,identify"self":
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 at
the City of Cupertino.
I declare under penalty of perjury thztt the foregoing is true and correct:
Date Place Consultant Signature Title
FY 2017/2018