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18-001 Polly Hu (1)FIRST AMENDMENT TO AGREEMENT 18-001 BETWEEN THE CITY OF CUPERTINO AND POLLY HU FOR FITNESS INSTRUCTION This First Amendment to Agreement 18-001 between the City of Cupertino and Polly Hu, for reference dated December 18, 2018, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Polly Hu, a Sole Proprietor ("Consultant") whose address is and is made with reference to the following: RECITALS: A. On July 1, 2018, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for Fitness Instruction. The agreement will expire on June 30, 2020. B. The Agreement and the First Amendment are collectively referred to as the Agreement" unless otherwise indicated. C. City and Consultant desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. COMPLIANCE WITH LAWS AND OTHER CITY REQUIREMENTS Paragraph 13 of the Agreement is modified, adding on the language below: Check one (if applicable): This contract requires services for children. This contract currently does not require services for children. If in the future, services for children are required, the contract will require a 'written amendment' to include the appropriate insurance coverages as required in 'Exhibit B - Insurance Requirements for Recreation Contracts', proof of finger printing and additional requirements under Paragraph 13. The contract amendment will also require the approval of the Director of Recreation and Community Services and City Attorney. 2. The following Exhibits to the Agreement, are amended and replaced to read as show in the attachments to this Amendment: a. Exhibit A-1 b. Exhibit B c. SAM Insurance 3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CONSUL NT By Z Title d RECOMMENDED FOR APPROVAL By"Y7 Ymjt/L' 4Title -IUN ';Opoly%-412 EXPENDITURE DISTRIBUTION PO #2019-033 580-63-620 700-702 Original 30,000 Amendment #1: 0 Amendment #2: Total: 30,000 OF • I ii 1.1 Titlix/)Ad -4:LL e- VED AS YRM&Ij City Attorney ATTEST: r City Clerk ( - 3 1 EXHIBIT A-1 SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES The CONTRACTOR will provide FITNESS INSTRUCTION in, but not limited to, the following: ZUMBA, TOTAL BODY, LINE DANCERCISE, ZUMBINI Location and Time of CONTRACTOR Services: Refer to the Recreation Schedule dated SUMMER 2018 -SPRING 2020 for agreed upon dates, times, and class locations. The City, at its sole discretion, may change the agreed terms. Compensation for CONTRACTOR Services: Contractor shall be compensated for services performed pursuant to this Agreement. Compensation shall consist of the following: $41 per 60 minute class; $50 per 75 minute class. The total compensation to the Contractor shall not exceed $30,000. (FY18-19=$15000; FY19-20=$15000). Eligible Participant Minimum and Maximums for CONTRACTOR Services: Minimum: 5 Maximum: 20 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 Contractor. List of all Contractor Employees working for the City of Cupertino (if no Employees, identify self"): self Performance of CONTRACTOR Services: In the case Contractor unilaterally cancels performance of a class, camp, activity or service without City approval, City reserves the right to immediately and without notice cancel the remainder of programs/services offered and or performed by Contractor. The Contractor 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. If applicable, contractors who are responsible for supervising minors must remain with the class until a parent of legal guardian has arrived and all minors are released to them. In the event of an injury occurring to a participant, the Contractor 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. Exhibit B Insurance Requirements for Recreation Contracts As required by Section 12 of the Agreement, Contractor shall procure and maintain the following insurance for the duration of the contract against claims arising from or in connection with Contractor, its agents, representatives, employees or subcontractors Services under this Agreement. Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as: Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an occurrence" basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this project/location (CG 25 03 or 25 04) or be twice the required occurrence limit. 2. Automobile Liability: ISO CA 0001 covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non -owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. Required if automobile is used to perform work under this contract. V Otherwise, proof of Contractor's personal auto insurance with limits required by state law suffices. Contractor shall not transport or use its personal vehicle to transport participants or perform work under this contract. 3. Workers' Compensation: As required by the State of California, with Statutory and Employer's Liability Insurance limits of no less than $1,000,000 per accident for bodily injury or disease. Required if Contractor has employees. A If no employees, Contractor must sign Affidavit ofNo Employees. 4. Sexual Abuse/Molestation: Insurance or the equivalent as required for activities/services involving minors, (i.e., after school activities, recreational programs, athletics, study/training events and transportation of minors). Coverage may be included under General Liability or be obtained in a separate policy, such as Educators Legal Liability (ELL) policy, with a limit of no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this contract or be twice the required occurrence limit. X Required if Contract involves services to children. Insurance coverage required may be satisfied by a combination of Primary and Excess/Umbrella insurance. Self -Insured Retentions: Self-insured retentions must be approved by City. City may require Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language must provide, or be endorsed to provide, that the self- insured retention may be satisfied by either the named insured or City. Acceptability of Insurers: Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, with an A.M. Best's financial strength rating of "A" or better and a financial size rating of "VII" or better. OTHER INSURANCE PROVISIONS: The CGL policy must contain, or be endorsed to contain, the following provisions: 1. The City, its City Council, boards and commissions, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds with respect to liability arising out of work or Exh. B Insurance for Recreation Contracts Updated 3-26-18 operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. 2. Contractor's insurance shall be primary insurance coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, agents, and volunteers. 3. The Insurance Company agrees to waive all rights of subrogation against the City, its elected or appointed officers, officials, agents, and employees for losses paid under the terms of any policy which arise from work performed by Contractor for City. This provision also applies to the Contractor's Workers' Compensation policy. 4. Each insurance policy required by this contract shall provide that coverage shall not be canceled, except with notice to the City. Primary Coverage: The Additional Insured coverage under Contractor's policy shall be primary non- contributory and at least as broad as ISO CG 20 01 04 13 as respects the City and all the insureds/indemnitees. If the limits of insurance required are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a "primary and•non-contributory" basis for the benefit of the Additional Insureds before City's own insurance is triggered. Notice of Cancellation: Each insurance policy shall provide that coverage shall not be canceled or allowed to expire without written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Such notice must be sent to City via email or certified mail to the attention of the City Manager. Waiver of Subrogation: Contractor grants City a waiver of any right to subrogation which any insurer of said Contractor may acquire against City by virtue of payment of any loss under such insurance. Contractor will obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Verification of Coverage: Contractor shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications, at any time. At a minimum Contractor must provide acceptable copies of the policy declarations and endorsement page verifying the required insurance coverages. Homeowner's Insurance: Contractor's homeowner's liability insurance may provide coverage sufficient to meet these requirements. Contractor should provide these requirements to his or her agent to confirm and provide verification to City. Special Events Coverage: Insurers may provide special events coverage for a reduced fee, or City may be able to offer this coverage. Contractor should contact the City Manager's Office for information or assistance. Special Risks or Circumstances: City reserves the right to modify these requirements based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Exh. B Insurance for Recreation Contracts Updated 3-26-I8 ARCH * INTERMEDIARIES CLAIMS MADE SEXUAL MISCONDUCT AND MOLESTATION INSURANCE Form: SML Safeguard Wording - 623AFB00213 Policy Number: Renewal of: N/A Named Insured: City of Cupertino — Dept of Recreation & Community Services Principal Address: 10185 N Stelling Road, Cupertino, CA, 95014 Policy Period: From: 1" July 2018 To: 1" July 2019 Both dates at 12:01 a.m. Local Time at the Principal Address stated in Item 1. Limit of Liability: a) USD 5,000,000 for all Claims for Wrongful Acts against any one Victim b) USD 5,000,000 for all Claims for Wrongful Acts against all Victims, but sub -limited to: c) USD 50,000 for all Safeguard Costs resulting from all Circumstances Such Sub -limit of Liability shall be part of, and not in addition to, the overall Limit of Liability stated in 3.b) above. Retention: USD 35,000 any one Victim Premium: USD 27,000 to be paid within 25 days of attachment Notification pursuant to Clause IX. shall be given to: Claims Department Beazley 30 Batterson Park Road, Farmington, CT 06032. claims a,beazley.com 860) 677 3765 (phone) 860) 679 0247 (fax) Retroactive Date: I" July 2018 Pending or Prior Litigation Date: I" July 2018 Service of Suit: Eileen Ridley, FLWA Service Corp., c/o Foley & Lardner LLP, 555 California Street, Suite 1700, San Francisco, CA 94104-1520 Choice of Law: New York Conditions: Application Dated: 54 June 2018 California Surplus Lines Notice 1- LMA9098A Small Additional or Return Premiums Clause (U. S.A.) — NMA 1168 Nuclear Incident Exclusion Clause -Liability -Direct — NMA 1256 Radioactive Contamination Exclusion Clause -Liability - NMA 1477 War and Terrorism Exclusion — NMA 2918 Sanctions Limits Clause - LMA 3100 Beazley Safeguard Education Document Arch Safeguard Enhancement Endorsement Amended Definition of Independent Contractor Endorsement — as attached U.S Classification: Surplus Lines Broker and State filed in: Risk Placement Services, 2850 Golf Road, Rolling Meadows, IL 60008 License Number: OC66724 Information: Employees — 41 full time + 253 part time + 63 IC's Exposure Units — 97,500 Nature of Business — Municipality Cancellation by an Insured may result in a short rate calculation to determine the return premium, subject to 5% minimum earned of the total premium. Underwriting Security: 100% Lloyd's (Information about Lloyds) AMENDED DEFINITION OF INDEPENDENT CONTRACTOR TO INCLUDE PART-TIME INDEPENDENT CONTRACTORS This endorsement modifies insurance provided under the following: BEAZLEY SAFEGUARD In consideration of the premium charged for this Policy, it is hereby understood and agreed that Clause III. DEFINITION H. is deleted in its entirety and replaced with the following: H. "Independent Contractor" means any natural person independent contractor who performs labor or service for the Insured Organization on a full-time or part-time basis pursuant to a written contract or agreement, where such labor or service is under the exclusive direction of the Insured Organization. The status of an individual as an Independent Contractor shall be determined as of the date of an alleged Wrongful Act. All other terms and conditions of this Policy remain unchanged. ENDORSEMENT. 2 Attaching to and forming part of Certificate No.: AC1805137 In the name of: City of Cupertino —Department of Recreation & Community Services It is hereby understood and agreed that with effect from the 1St September 2018, within the Declarations ITEM 1. Named Insured is amended to read as follows and not as previously stated: ITEM 1. Named Insured: City of Cupertino — Department of Recreation & Community Services; Public Works Department ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. DATED IN LONDON: 26t' September 2018 CITY OF CUPERTINO RECREATION SERVICES AGREEMENT No. - S9 FY 2018-20 Parties. 71us contract is made and entered into as of 7/1/2018 ("Effective Date"), by and between the City of Cupertino, a municipal corporation ("City"), and with POLLY HU, 22405 Rancho Ventura, Cupertino, CA 95014 ("Contractor"), a SOLE PROPRIETOR for ADULT FITNESS INSTRUCTION. 1. Services. Contractor agrees to provide the Services included in the Scope of Work and in accordance with the Schedule of Performance attached in Exhibit A. 2. Term. This contract begins on the Effective Date and ends on 6/30/2020 ("Contract Tine"), unless extended or terminated as provided herein. Time is of the essence and Contractor must have sufficient tine, resources, and qualified staff to deliver the Services as required. Contractor must promptly notify City of. any actual or potential delays to afford the Parties adequate opportunity to address or mitigate such delays. 3. Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based upon actual costs but that will be capped so as not to exceed $30,000 ("Contract Price"), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A. The maximum compensation includes all costs, expenses and reimbursements and will remain in place even if Contractor's actual costs exceed the capped amount. Contractor must submit invoices and the information required in Exhibit A in order to receive payment. City will compensate Contractor within 30 days after approval of written invoices. Invoices are subject to review and audit by City during regular business hours upon 24 -hours' notice. Contractor must maintain complete and accurate records of payrolls, expenditures, disbursements and other cost items charged to City or establishing the basis for an invoice, for a minimum of four (4) years from the date of final payment. 4. Independent Contractor. Contractor is an independent Contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. No civil service status or other right of employment will be acquired by virtue of Contractor's performance of the Services. Contractor is not entitled to City's health benefits, worker's compensation or any other benefit. Contractor must have the skills and qualifications to perform the Services in a competent and professional manner. Contractor will supply all tools, materials and equipment required to perform the Services Lander this Contract. Contractor is responsible for obtaining permits and licenses required by law and must obtain a City business license. Recreation ServicesAgreement/Rev. 3-27-2018 Pagel of 6 5. Proprietary/Confidential Information. To the extent Contractor may have access to private or confidential information owned or controlled by the City, Contractor agrees to treat it confidential and use it solely to perform this Agreement. Contractor must exercise the same standard of care to protect City information as a reasonably prudent Contractor would use to protect its own proprietary data. 6. Ownership of Materials. To the extent Contractor prepares written material, drawings or data in connection with this contract, City will have the property rights to those materials and all copyrights, if any, to such work product will constitute City property. 7. Records. Contractor must maintain complete, accurate, and detailed accounting records relating to its performance in accordance with generally -accepted accounting principles and procedures. The records must include detailed information about Contractor's services, benclunarks, deliverables and costs/fees, and must be made reasonably available to City. The records and supporting documents must be kept separate from other files and maintained for four years from the date of City's final payment. S. Assignment. This Contract is not assignable. Contractor may not substitute another or transfer any rights or obligations under this Contract without prior written approval of City. Only those persons whose names are included in Exhibit A may perform the Services. 9. Publicity and Signs. Any publicity generated by Contractor related to this contract or the Services during the Contract Time and for one year thereafter must reference City contributions. The words "City of Cupertino" shall be displayed u1 all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No, signs may be posted, exhibited or displayed on or about City property, except signage required by law or under this Agreement without prior written approval from City. 10. Indemnification. To the fullest extent allowed by law and except for losses caused by the sole negligence or willful misconduct of City personnel, Contractor agrees to indemnify, defend, and hold harmless the City, its City Council, boards and conunissions, officers, officials, employees, agents, servants, volunteers and Contractors (collectively, "Indemnitees"), through legal counsel acceptable to City, from and against any liability for damages, claims, actions, causes of action, demands, charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to litigation, arbitrations, administrative and regulatory proceedings), of every nature, arising out of or in any way related to Contractor's or Contractor's agents performance of this contract or the Services. This includes but is not limited to Liability resulting in personal injury, death, property damage, or economic losses. Contractor must pay any costs City may incur in enforcing this provision and must accept a tender of defense upon receiving notice from City. Contractor's payments may be deducted or offset to cover any money the City lost due to a claim or comiterclaim arising out of this Contract. 11. Insurance. Contractor shall comply with the insurance requirements in Exhibit B. City will not execute the Agreement Lentil it has received and approved satisfactory certificates of insurance and endorsements evidencing the type, amount, and dates of coverage. Alternatively, City in its sole discretion may purchase insurance and deduct the costs from payments to Contractor, or terminate the contract. Recreation Services Agree»?eWI Rev. 3-27-2018 Palle 2 of 6 12. Compliance with Laws and Other City Requirements. Requirements for all Contracts. This contract is subject to local, state and federal laws and regulations prohibiting discrimination, including Title VII of the Civil Rights Act of 1964, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, and other laws that pertain to fair employment and and -discrimination practices. Contractor must comply with labor laws pertaining to prevailing wages, working hours, overtime, payroll records, and other requirements imposed by the Department of h adustrial Relations. If Contractor does not have employees, it must sign the Affidavit of No Employees, attached as Exhibit C. Contractor is responsible for verifying employment eligibility of employees pursuant to the Irmnigration Reform and Control Act of 1986. Contractor must comply with conflict of interest laws and regulations applicable to this Agreement and avoid conflicts of interest. Contractor may be required to file a conflict of interest form for engaging in governmental decisions or serving in a staff capacity, and is hereby advised to review the requirements of California Political Reform Act and the California Code of Regulations. Services may only be performed by persons who are not employed by City and who do not have a contractual relationship with City other than this contract Contractor agrees to abide by City policies and administrative rules prohibiting gifts to City officials and employees. Additional Requirements for Services Provided to Minors: Contractor and its employees who provide services under this Agreement must comply with these additional requirements: A. Undergo fingerprinting and a criminal background check and verify all employees providing services under this contract have met this requirement. B. Complete a Tuberculosis screening test as required by law and as set forth in Exhibit D. C. Comply with the Mandatory reporting under California Penal Code 11164-11174.3 and with the protocols, reporting, and training required. under California Health and Safety Code Section 124235, AB2007, and other laws pertaining to concussion evaluation, removal from play, and return to play protocols. (Refer to Center for Disease Control & Prevention, littl2s://www.cdc.goy/headsup/--ii-idex.htinl). D. Submit required forms and acknowledgments included in Exhibit D, and ensure its each participant is provided with a concussion information sheet, signs and returns the forms to the City as required by Health and Safety Code Section 124235. Require coaches and administrators to successfully complete the concussion and head injury education at least once either online or in person, before supervising a participant. Contractor shall offer training, educational materials, or both to each Contractor administrator on a yearly basis. (Training resources are available at the Center for Disease Control & Prevention (link cited above). E. If providing instruction, Contractor must acknowledge and comply with all requirements set forth in the Recreation & Community Services Instructor Manual. Check one (if applicable): This contract requires services for children. Recreation Serv4cesAgreen7ent/Rev. 3 -27 -?018 Page 3 of 6 M This contract currently does not require services for children. If in the future, services for children are required, the contract will require a 'written amendment' to include the appropriate insurance coverages as required in 'Exhibit B — Insurance Requirements for Recreation Contracts', proof of finger printing and additional requirements under Paragraph 13. The contract amendment will also require the approval of the Director of Recreation and Community Services and City Attorney. 14. Coordination of Services. The Parties designate the following persons as Services Coordinators with the responsibility to oversee the delivery of Services in accordance with the terms of this Agreement. Contractor's designation and any substitution are subject to City approval. For City: Name: Karen Levy Position: Recreation Coordinator Contact: karenl@cupertino.org; 408-777-3123 For Contractor: Name: Polly Hu Position: Adult Fitness Instructor Contact: 15. Abandonment. City may abandon or postpone the Activity or Program and will notify Contractor as soon as possible. Contractor will be paid for satisfactory Services rendered through the date of abandonment upon submission of final invoices approved by City. 16. Termination. City may terminate this contract for cause or without cause at any time and will notify Contractor as soon as possible. Contractor will be paid for satisfactory services rendered through the date of termination upon submission of final invoices approved by City. 17. Governing Law, Venue and Dispute Resolution. This contract is governed by the laws of the State of California. Any legal actions or proceedings filed against City in connection with this contract must comply with the government claims filing requirements and must be filed with the Superior Court for the County of Santa Clara, State of California. At City's request, Contractor is required to continue to provide Services pending resolution of any dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. Attorney Fees. If City is required to pursue litigation, arbitration or other administrative or regulatory proceeding to enforce its rights or the terms of this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. This Section survives this Agreement. 19. Third Party Beneficiaries. There are no third party beneficiaries under this Contract. 20. Waiver. Neither acceptance of Services nor payment thereof constitutes a waiver of any contract provision. City waiver of a breach shall not constitute waiver of another term, provision, covenant or condition, or a subsequent breach, whether of the same or a different character. 21. Entire Agreement. This Agreement and all referenced Exhibits are hereby attached and incorporated into the Agreement by this reference and represent the full and complete understanding Recreation Sery*es Agreement/Rev. 3-27-2018 Pa,,e 4 of 6 as to those matters contained herein, and supersede any other contract or understanding, either oral or written, between the Parties. This Agreement may not be modified or amended except in writing signed by both Parties. If there is any inconsistency between the main contract and any attachments or exhibits thereto, the main contract shall prevail. 22. Inserted Provisions. Each provision or clause required by law or this contract is deemed to be included and will be inferred herein. Either party may request an amendment to cure any mistaken insertion or omission of a required provision. 23. Headings. The headings are for convenience only and are not a part of the contract or untended to affect, li-mit or amplify the terms or provisions of this Agreement. 24. Severability/Partial Invalidity. If any contract term or provision, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other contract terms and provisions and their application to specific situations will remain in full force and effect. 25. Survival. All provisions which by their nature must continue after the Agreement ends, including without limitation Indemnification, Insurance, Ownership of Materials, Records, Governing Law and Attorney Fees, will survive the expiration or termination of this Agreement. 26. Notices. All notices and instruments pertaining to material provisions of this contract or significant disputes which are required by law or under this contract to be in writing must be sent to the persons listed below. Tlne notices will be deemed effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission. To City of Cupertino: Office of the City Manager 10300 Torre Ave., Cupertino CA 95014 cc: Representative/Coordinator: Karen Levy Email: karenl@cupertino.org To Contractor: cc: Representative/Coordinator: Polly Hu 27. Validity of Contract. This contract is valid and enforceable only if it complies with the provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, is signed by the City Manager or authorized designee, and is approved for form by the City Attorney's Office. 28. Execution. The person executing this contract on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to execute this contract and to carry out all actions and services required. This contract constitutes a legally binding obligation of Contractor, and may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. Recreation Services Agreenient/Rev. 3-27-2018 Page 5 of 6 IN WITNESS WHEREOF, the parties have caused this contract to be executed. CONTRACTOR Polly Hu By Name—, > Title A-- e` Tax I.D. No.: refer to W-9 on file APPROVED AS TO FORM: Cupertino City Attorney FY 18-19 Contract/Encumbered Amount: $15,000 Account No.: 580-63-620 700-702 FY 19-20 ContractlEncumbered Amount: $15,000 Account No.: 580-63-620 700-702 CITY OF CUPERTINO A Municipal Corporation By Name CiYIVIS 7iJ L l7 hz fLce,qk,Title , ,j) ` e ATTEST: J--qr- F-D,-GRACE SCHMID City Clerk Page 6 of 6 Recreation Sei-vices Agreement/Reis. 3-27-2018 EXHIBIT A SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES The CONTRACTOR will provide ADULT FITNESS INSTRUCTION in, but not limited to, the following: ZUMBA, TOTAL BODY, LINE DANCERCISE Location and Time of CONTRACTOR Services: Refer to the Recreation Schedule dated SUMMER 2018 -SPRING 2020 for agreed upon dates, times, and class locations. The City, at its sole discretion, may change the agreed terms. Compensation for CONTRACTOR Services: Contractor shall be compensated for services performed pursuant to this Agreement. Compensation shall consist of the following: $41 per 60 minute class; $50 per 75 minute class. The total compensation to the Contractor shall not exceed $30,000. (FY18-19=$15000; FY19-20=$15000). Eligible Participant Minimum and Maximums for CONTRACTOR Services: Minimum: 5 Maximum: 20 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 Contractor. List of all Contractor Employees working for the City of Cupertino (if no Employees, identify "self"): self Performance of CONTRACTOR Services: In the case Contractor unilaterally cancels performance of a class, camp, activity or service without City approval, City reserves the right to immediately and without notice cancel the remainder of programs/services offered and or performed by Contractor. The Contractor 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. If applicable, contractors who are responsible for supervising minors must remain with the class until a parent of legal guardian has arrived and all minors are released to them. In the event of an injury occurring to a participant, the Contractor 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. Exhibit B Insurance Requirements for Recreation Contracts As required by Section 12 of the Agreement, Contractor shall procure and maintain the following insurance for the duration of the contract against claims arising from or in connection with Contractor, its agents, representatives, employees or subcontractors Services under this Agreement. Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGLon an occurrence" basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this project/location (CG 25 03 or 25 04) or be twice the required occurrence limit. 2. Automobile Liability: ISO CA 0001 covering Code 1 (airy auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non -owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. Required if aUtorntobile is used to peform work under this contract. 9 Otherwise, proof. of Contractor's personal auto insurance ivith limits required by state law suffices. Contractor shall not transport or use its personal vehicle to transport participants or- perfor•rn ia;or•k under this contract. 3. Workers' Compensation: As required by the State of California, with Statutory and Employer's Liability Irisurance limits of no less than $1,000,000 per accident for bodily injury or disease. Required if Contractor has employees. Ifno employees, Contractor must sign Affidavit of No Employees. 4. Sexual Abuse/Alolestation: Insurance or the equivalent as required for activities/services involving minors, (i.e., after school activities, recreational programs, athletics, study/training events and transportation of minors). Coverage may be included under General Liability or be obtained in a separate policy, such as Educators Legal Liability (ELL) policy, with a limit of no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this contract or be twice the required occurrence limit. Required if Contract involves services to childrert. Insurance coverage required may be satisfied by a combination of Primary and Excess/Urnbrella insurance Self -Insured Retentions: Self-insured retentions must be approved by City. City may require Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language must provide, or be endorsed to provide, that the self- insured retention may be satisfied by either the mined insured or City. Acceptability of Insurers: Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, with an A.M. Best's financial strength rating of "A" or better and a financial size rating of "VII" or better. OTHER INSURANCE PROVISIONS: The CGL policy must contain, or be endorsed to contain, the following provisions: 1. The City, its City Council, boards and comrnissions, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds with respect to liability arising out of work or Exna. B Insurance for Recreation Contracts Updated 3-26-18 operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. 2. Contractor's insurance shall be primary insurance coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, agents, and volunteers. 3. The Insurance Company agrees to waive all rights of subrogation against the City, its elected or appointed officers, officials, agents, and employees for losses paid under the terms of any policy which arise from work performed by Contractor for City. This provision also applies to the Contractor's Workers' Compensation policy. 4. Each insurance policy required by this contract shall provide that coverage shall not be canceled, except with notice to the City. Prinrary Coverage: The Additional Insured coverage under Contractor's policy shall be primary non- contributory and at least as broad as ISO CG 20 01 04 13 as respects the City and all the insureds/indenuiitees. If the limits of insurance required are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a "primary and non-contributory" basis for the benefit of the Additional Insureds before City's own insurance is triggered. Notice of Cancellation: Each insurance policy shall provide that coverage shall not be canceled or allowed to expire without written notice to City 30 days in advance or 10 days in advance if due to non-payinent of premiums. Such notice must be sent to City via email or certified mail to the attention of the City Manager. TI'aiver of Subrogation: Contractor grants City a waiver of any right to subrogation which any insurer of said Contractor may acquire against City by virtue of payment of any loss under such insurance. Contractor will obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Verification of Coverage: Contractor shall famish the City with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications, at any time. At a minimum Contractor must provide acceptable copies of the policy declarations and endorsement page verifying the required insurance coverages. Homeowner's Insurance: Contractor's homeowner's liability insurance may provide coverage sufficient to meet these requirements. Contractor should provide these requirements to his or her agent to confine and provide verification to City. Special Events Coverage: Insurers may provide special events coverage for a reduced fee, or City may be able to offer this coverage. Contractor should contact the City Manager's Office for information or assistance. Special Risks or Circumstances: City reserves the right to modify these requirements based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Exh. B Insurance for Recreation Contracts Updated 3-26-18 EXHIBIT C AFFIDAVIT OF NO EMPLOYEES State of California County of Santa Clara City of Cupertino I, the undersigned, declare as follows: I am an independent fitness instructor 10 me___ I wish to enter into a services contract with the City of Cupertino. I am fully aware of the provisions of section 3700 of the California Labor Code, which requires every employer to provide Workers' Compensation coverage for employees in accordance with the provisions of that Code. I am also aware that I must provide proof of workers' compensation insurance to the City of Cupertino for any and all employees I may have, pursuant to Section 12 of the City of Cupertino's contract. I hereby certify that I do not have any employees nor will I have any employees working for me or my business during the term of any service contract with the City of Cupertino. I am not required to have Workers' Compensation insurance. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this >'day of aLz t 2018, at r.> v ,California. PRINT NAME SIGNATURE ACORU® CERTIFICATE OF LIABILITY INSURANCE DATE( 05/1100//22018018 Y) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER K&K Insurance Group, Inc. 1712 Magnavox Way Foil Wayne IN 46804 CONTACT NAME: Mass Merchandising A/CNNo,Ext : 1-800-506-4856 p/C No): 1-260-459-5590 E-MAIL ADDRESS: info@fitnessinsurance-kk.com PRODUCER CUSTOMER ID: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURER A: Nationwide Mutual Insurance Company 23787 INSURER B: INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 2000360763 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUER WVD POLICY NUMBER POLICY EFF MM+DD/YYY POLICY EXP MMIDD/YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY X 03/23/18 03/23/20 EACH OCCURRENCE $2,000,000 CLAIMS-MADE X OCCUR 1:44 PM EDT 12:01 AM DAMAGE TO RENTED $ 1,000,000PREMISES (Ea Occurrence) MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE per year $5,000,000 POLICY PROJECT [] LOC PRODUCTS — COMP/OP AGG per year $2,000,000 0PROFESSIONALLIABILITY $2,000,000XOTHER: RPG Member LEGAL LIAB TO PARTICIPANTS $2,000,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) HIRED NON -OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY Per accident) X Not provided while in Hawaii UMBRELLA OCCUR LIAB EACH OCCURRENCE AGGREGATEEXCESSLIABCLAIMS -MADE DED RETENTION WORKERS COMPENSATION AND EMPLOYERS' LIABILITY N/A PER STATUTELI OTHER _ ANY PROPRIETORJPARTNER/ Y / N E.L. EACH ACCIDENT EXECUTIVE OFFICERIMEMBER EXCLUDED? (Mandatory In NH) El E.L. DISEASE — EA EMPLOYEE If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE — POLICY LIMIT A MEDICAL PAYMENTS FOR PARTICIPANTS 44 PM EDT 03/23/20 12:01 AM PRIMARY MEDICAL EXCESS MEDICAL $5,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certified Instructor of: Aerobics, Children's fitness programs, Dance, Exercise, Personal training, Pilates, Strength, Tai chi, Yoga, ZUMBA@ The certificate holder is added as an additional insured, but only for liability caused, in whole or in part, by the acts or omissions of the named insured. This certificate voids and replaces certificate #WO1199213 Sexual Abuse or Sexual Molestation Liability - $100,000 Each Occurrence (included above)/ $300,000 Aggregate (included above) CERTIFICATE HOLDER CANCELLATION City of Cupertino, Its City Council, Boards and Commissions, Officers, SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE Officials, Employees, Agents, Servants, Volunteers and Consultants EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH 10300 Torre Ave. THE POLICY PROVISIONS. Cupertino, CA 95014 Owner/Manager/Lessor of Premises AUTHORIZED REPRESENTATIVE 1988-2015 ACORD CORPORATION. All rights reserved. Coverage is only extended to U.S. events and activities. NOTICE TO TEXAS INSUREDS: The Insurer for the purchasing group may not be subject to all the insurance laws and regulations of the State of Texas. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 26 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) City of Cupertino, Its City Council, Boards and Commissions, Officers, Officials, Employees, Agents, Servants, Volunteers and Consultants 10300 Torre Ave. Cupertino, CA 95014 Named Insured: Polly (Chung Lan) Hu CP# 1307 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II —Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of your ongoing operations; or 2. In connection with your premises owned by or rented to you. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 26 04 13 ©Insurance Services Office, Inc., 2012 Page 2 of 2 AAA Insurance underwritten by Personal Auto Policy Declarations CSAA General Insurance Company Alofice of Ain ended Policy PO Box 24511 Oakland, CA 94623-9865 Effective April 23, 2018 For claims or customer service call This Declarations Page Replaces Any Previous Declarations Page Insurance (800) 207-3618 Please Read and Attach to Your Policy POLICY NUMBER: AAA Insured Since 2017 PROGRAM: Horizon Named Insured(s) & Mailing Address POLICY PERIOD------ ERIOD_____ FROM: FROM: 07/09/17 TO: 07/09/18 TIME: 12:01 A.M. DED 2 DED 3 DED Bodily Injury DESCRIPTION OF VEHICLE (S) YOU WILL BE BILLED SEPARATELY FOR ANY BALANCE DUE, VEHICLE YEAR MAKE MODEL VEHICLE IDENTIFICATION ZIP CODE 1 COVERAGES LIMIT OF LIABILITY VEHICLE INFORMATION 1 DED 2 DED 3 DED Bodily Injury 100,000/person 300,000 / accident 141 365 286 Property Damage 50,000 / accident 147 378 295 Uninsured Motorist - Bodily Injury 100,000 / person 300,000 / accident 78 135 119 Uninsured Motorist Property Damage No Cov. No Cov. No Cov. Medical Payments 10,000 / person 17 31 34 FULL TERM PREMIUM 383 909 734 CHANGESMADE. VEHICLEREMOVED FULLTERM PREMIUM TOTAL: TOTAL CHARGES: 2,445.00 123.19 rvninq rrivu uvuvno un uv v III. LUJ IUIVA There is no coverage provided by this Policy while the following individual(s) operate a motor vehicle: NONE nvIYUK 1 AIV 1 IVU I iur: I nls poucy reouces IIaDHIty coverage umlts wnen an insured vehicle is operated by persons other than the listed drivers. The limits for bodily injury and property damage liability coverage are reduced to the financial responsibility limits required by Section 16056 of the California Vehicle Code, which are $15,000 per person, $30,000 per accident and $5,000 for property damage. Please see your policy jacket Part I section (a)(3) under "Persons Insured". SEE BACK OF THIS FORM FOR ADDITIONAL INFORMATION AA02CAA 01 12 Lienholder information: L=Lienholder A=Additional Insured Driver # Name Birthdate Marital Status Gender 1 Policy: Multi -Vehicle Discount Driver: #1: Non -Smoker Discount;Good Driver; #2: Non -Smoker Discount;Good Driver; #3: Non -Smoker Discount;Driver Training Discount; #4: Non -Smoker Discount;Good Driver Vehicle: #1: Vehicle Discount; #2: Anti -Lock Brakes Discount; #3: Anti -Lock Brakes Discount Driver # Date. Violation Driver # Date Violation 3 The following endorsement applies when a lienholder is shown on the declarations page: Loss Payable Endorsement We will pay loss or damage due under this policy according to your interest and that of the lienholder. We may make separate payments according to those interests. A Deductible of $250 applies to all lienholder claims. We will pay the lienholder for a loss under this policy even though you have violated the terms of the policy by something you have done orfailedtodo. However, we will not pay for any loss caused by conversion, embezzlement or secretion by you or anyone acting on your behalf. We will not notify the lienholder each time you renew your policy and we may cancel this policy according to its terms. We will protect thelienholder's interest for 10 days after we notify him that the policy has terminated for any reason. If we pay the lienholder for any loss or damage suffered during that 10 -day period, we have the right to recover the amount of any such payment from you. If you fail to give proof of loss within the time allowed, the lienholder may protect his interest by filing a proof of loss within 30 days after that time. The lienholder must notify us of any known change of ownership or increase in the risk. If he does not, he will not be entitled to any payment under this endorsement. If we pay the lienholder under the terms of this endorsement for a loss not covered under this policy, we are subrogated to his rights againstyou. This will not affect the lienholder's right to recover the full amount of his claim. The lienholder must assign us his interest and transfer to us all supporting documents, if we elect to pay the balance due him on the vehicle, or the actual cash value of the vehicle, which ever is less. AA02CAA 01 12 AAA Insurance underwritten by Personal Auto Policy Declarations CSAR General Insurance Company Notice ofAntended Policy PO Box 24511 Oakland, CA 94623-9865 Effective April 23, 2018 For claims or customer service call This Declarations Page Replaces Any Previous Declarations Page Insurance (800) 207-3618 Please Read and Attach to Your Policy AAA Insured Since 2017 Named Insured(s) & Mailing Address LIMIT OF LIABILITY I...... yr rrPunuy ra anvwn. ouu Cla lU all Conamons OT MIS pOTIC VEHICLE INFORMATION POLICY PERIOD FRO-M-. 09/17 T0: 07/09/18 TIME: 12:01 A.M. 154 Property Damage 50,000 / accident DESCRIPTION OF VEHICLE (S) YOU WILL BE BILLED SEPARATELY FOR ANY BALANCE DUE. VEHICLE YEAR MAKE MODEL VEHICLE IDENTIFICATION Uninsured Motorist Property Damage ZIP CODE InCI lrAnrP is n—firi—i nnh, I-- rocnonl fn Ihc. fi.11.....:......... ....---- --- COVERAGES LIMIT OF LIABILITY I...... yr rrPunuy ra anvwn. ouu Cla lU all Conamons OT MIS pOTIC VEHICLE INFORMATION 4 DED Bodily Injury 100,000/person 300,000 / accident 154 Property Damage 50,000 / accident 160 Uninsured Motorist - Bodily Injury 100,000 / person 300,000 / accident 88 Uninsured Motorist Property Damage No Cov, Medical Payments 10,000/person 17 FULL TERM PREMIUM 419 CHANGES MADE: VEHICLE REMOVED PnPMC AMn 1=Mnn ReGnACnITc FORMS AND ENDORSEMENTS _MADE PART OF THIS POLICY: WU01 CA 01/05 (04/16) AA1ICA WUAECA 10 06 (04/14) AA53CA 04 14 EXCLUSIONS There is no coverage provided by this Policy while the following individual(s) operate a motor vehicle: NONE 1"Or%DTAKIT AIATI+C. Ii —Y 1--o 11aulilLy uvclayG Illnns when an msurea venlcie Is operated by persons other than the listed drivers. The limits for bodily injury and property damage liability coverage are reduced to the financial responsibility limits required bySection16056oftheCaliforniaVehicleCode, which are $15,000 per person, $30,000 per accident and $5,000 for property damage. Please see your policy jacket Part I section (a)(3) under "Persons Insured". SEE BACK OF THIS FORM FOR ADDITIONAL INFORMATION AA02CAA 01 12 Lienholder information: L=Lienholder A=Additional Insured Driver # Name 1 Policy: Multi -Vehicle Discount Driver: #1: Non -Smoker Discount;Good Driver; #2: Non -Smoker Discount;Good Driver; #3: Non -Smoker Discount;Driver Training Discount; #4: Non -Smoker Discount;Good Driver Vehicle: #4: Anti -Lock Brakes Discount Driver # Date Violation Driver # Date Violation The following endorsement applies when a lienholder is shown on the declarations page: Loss Payable Endorsement We will pay loss or damage due under this policy according to your interest and that of the lienholder. We may make separate payments according to those interests. A Deductible of $250 applies to all lienholder claims. We will pay the lienholder for a loss under this policy even though you have violated the terms of the policy by something you have done orfailedtodo. However, we will not pay for any loss caused by conversion, embezzlement or secretion by you or anyone acting on your behalf. We will not notify the lienholder each time you renew your policy and we may cancel this policy according to its terms. We will protect thelienholder's interest for 10 days after we notify him that the policy has terminated for any reason. If we pay the lienholder for any loss or damage suffered during that 10 -day period, we have the right to recover the amount of any such payment from you. If you fail to give proof of loss within the time allowed, the lienholder may protect his interest by filing a proof of loss within 30 days after that time. The lienholder must notify us of any known change of ownership or increase in the risk. If he does not, he will not be entitled to any payment under this endorsement. If we pay the lienholder under the terms of this endorsement for a loss not covered under this policy, we are subrogated to his rights againstyou. This will not affect the lienholder's right to recover the full amount of his claim. The lienholder must assign us his interest and transfer tousallsupportingdocuments, if we elect to pay the balance due him on the vehicle, or the actual cash value of the vehicle, which ever is less. AA02CAA 01 12