17-001 Slab Happy Ceramics No. of - Za
FY 17-18
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
SLAB HAPPY CERAMICS
FOR ART AND CERAMIC CLASSES,WORKSHOPS,AND PARTIES
THIS AGREEMENT,for reference dated TUESDAY,JUNE 13,2017,is by and between CITY OF
CUPERTINO,a municipal corporation(hereinafter referred to as"City"),and SLAB HAPPY CERAMICS,
a CALIFORNIA CORPORATION,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 ART AND CERAMIC
CLASSES,WORKSHOPS,AND PARTIES 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 SATURDAY,JULY 1,2017,and shall terminate
on SATURDAY,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.
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 shall consist of the following:
Classes,&Camps-65%of the resident fee based on final class rosters.
Ceramic Parties—75%of total ceramic party fees collected.
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. The total compensation to the
Consultant shall not exceed$55,000.
4. ACKNOWLEDGEMENT OF MANDATED REPORTING REOUIREMENTS AND
CONCUSSION PROTOCOL AND TRAINING:
A. Mandatory Reporting and Fingerprinting,and 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.
B. Concussion Protocol: Consultant shall comply with all requirements of AB2007,including
FY 2017/2018
Standard Consultant Agreement 1
those outlined in Health and Safety Code Section 124235,et seq. including concussion
evaluation,removal from play,and return to play protocols. (Resources are available at the
Center for Disease Control&Prevention. httvs://www.cdc.Lyov/headsup/index.html)
1. Consultant shall provide each participant with a concussion information sheet,which
may be in the form as attached as Exhibit C-1. Consultant shall ensure each
participant signs and returns the form as required by Health and Safety Code Section
124235;and
2. Consultant shall require all coaches and administrators to successfully complete the
concussion and head injury education at least once either online or in person,before
supervising a participant. Consultant shall offer training,educational materials, or
both to each consultant administrator on a yearly basis. (Training resources are
available at the Center for Disease Control&Prevention.
httos://www.cdc.govfheadsut)/index.html)
5. FINGERPRINT&TUBERCULOSIS(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 Consultant. 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 Consultant. Payments of the above items,if required,are the
responsibility of Consultant.
9. IMMIGRATION REFORM AND CONTROL ACT(IBCA):
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.
FY 2017/2018
Standard Consultant Agreement 2
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.
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. Liability: Commercial general liability coverage,including sexual abuse
and molestation coverage,in the following minimum limits:
1. Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate-all other
2. Property Damage: $100,000 each occurrence
$250,000 aggregate
FY 2017/2018
Standard Consultant Agreement 3
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 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 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,sublessee,
hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment,
FY 2017/2018
Standard Consultant Agreement 4
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.
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 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:
FY 2017/2018
Standard Consultant Agreement 5
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.
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 the Consultant to the City shall be addressed to
the City at: 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: Attention:TRUDI BURNEY.
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
Agreement that is earned and unpaid prior to the effective date of termination.
City has no obligation to offer any of Consultants 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. Consultant shall obtain a Cupertino Business License and further comply with
the City's Minimum Wage Ordinance as set forth in Cupertino Municipal Code Chapter 3.37.
FY 2017/2018
Standard Consultant Agreement 6
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:
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.
28. AGREEMENT COORDINATOR:
The Agreement Coordinator and representative for CITY shall be: DANIEL MESTIZO,
RECREATION COORDINATOR,Recreation&Community Service Department
FY 2017/2018
Standard Consultant Agreement 7
IN WITNESS,WHEREOF,the parties have caused the Agreement to be executed.
SLAB HAPPY CERAMICS CITY OF CUPERTINO
A Munici al Corporation
By: TRUDI BURNEY By: DANIE MES O
Title: OWNER Title: RECREATION COORDINATOR
Date: f° (� I Date: 6I//Q 11-7
RECOMMENDED FOR APPROVAL:
r•
By: JEFF MILKES
Ti e: DIRECTOR—RECREATION&COMMUNITY
SERIVICES
APPROVED AS TO FORM:
A%
RANDOLPH STEVENSON HOM
CITY ATTORNEY
ATTEST
GRACE
GRACE SCHMIDT
CITY CLERK
EXPENDITURE DISTRIBUTION:
Account No: 580-62-613 700-702
Amount: $55,000
FY 2017/2018
Standard Consultant Agreement 8
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULTANT will provide ART AND CERAMIC CLASSES,WORKSHOPS,AND PARTIES in,
but not limited to,the following programs:
POTTER'S WHEEL,MORNING/EVENING STUDIO,TGIF OPEN STUDIO,CLAY SCULPTING,ART
WORKSHOPS,JEWELRY,MIXED MEDIA,ART WORKSHOPS,CERAMIC PARTIES
Location and Time of CONSULTANT Services:
Refer to the Recreation Schedule.dated SUMMER 2017 THROUGH SUMMER 2018 for agreed upon.dates,
times,and class locations. By the mutual agreement of both parties,class schedule may change.
Eligible Participant Minimum and Maximums for CONSULTANT Services:
Minimum: 2
Maximum: 25
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. Consultants 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.
FY 2017/2018
Standard Consultant Agreement 9
EVANSTON INSURANCE COMPANY
CERTIFICATE NO.: 636178403925245562
CERTIFICATE OF INSURANCE
SPECIAL EVENT LIABILITY PROGRAM
1 PRODUCER PUBLIC ENTITY(ADDITIONAL INSURED)
Alliant Insurance Services,Inc.in conjunction with City of Cupertino
Apex Insurance Services
P.O.Box 6450
Newport Beach,CA 92658
License No:OC 36861
NAMED INSURED(EVENT HOLDER): EVENT INFORMATION:
Trudi Burney TYPE: Arts And Crafts(various)
LOCATION: Wilson Park 19784 Wuriergreen Drive Cuponino,Ca 95614
*Liquor Liability Yeso NoG)
**Liquor Liability after 12 am ends before 2 am ❑
This is to certify that the insurance policy listed below has been issued to the above insured named(event holder)for the policy
period indicated. The insurance described herein is subject to all the terms,exclusions and conditions of such policy(ies)unless
amended as described in Special Conditions.
INSURANCE CARRIER:Evanston Insurance Company
MASTER POLICY NUMBER: SEP41023
MASTER POLICY DATES: EFFECTIVE: January 1, 2017 EXPIRATION: January 1,2018
COMMERCIAL GENERAL LIABILITY Genera( OCCURRf:NCE FORM( DEDUCTIBLE: NONE
Aggregate Limit S 2000,000
Products S Completed Operations 1,000,000 SPECIAL CONDITIONS:
Personal&Advertising Injury 1,0m,ow The following endorsements attached to
Each Occurrence Lunit 1,000,000 the Master Policy do not apply to this
DamaLe To Premises Rented To You(Any One Premises) 100,000 Certificate Of Insurance:
Medical Payments(Any One Person) 5,000
Liquor Liability (If purchased) 1,0o0.o(xl
Optional Limits Purchased
❑ $1,000,000/$3,000,000
❑ $2,000,000/$2,000,000
CProperty Damage(If purchased)
No Property Damage Coverage
The limits of insurance apply separately to each event insured by this policy as if a separate policy of insurance has been issued ror that event.
OTHER ADDITIONAL INSUREDS
City of Cupertino its City Council, Boards and
Commissions, Officers, Employees, and
Volunteers.
CANCr.L1.ATION: Should the above described policy be cancelled before the expiration date thereof,notice will to delivered in accordance with die policy
provisions.
AUTHORIZED REPRESENTATIVE:
DATE ISSUED: 12/20/2416