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20-001 Grace Duval Amendment #1 07-01-20211 FIRST AMENDMENT TO AGREEMENT 20-001 BETWEEN THE CITY OF CUPERTINO AND GRACE DUVAL FOR FITNESS INSTRUCTION This First Amendment to Agreement 20-001 between the City of Cupertino and Grace DuVal, for reference dated 6/1/2021, is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Grace DuVal, a Sole Proprietor (“Contractor”) whose address is 1642 Canary Drive, Sunnyvale, CA 94087, and is made with reference to the following: RECITALS: A. On 6/9/2020, Agreement 20-001 (“Agreement”) was entered into by and between City and Contractor for Fitness Instruction. B. City and Contractor 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. Compensation Paragraph 4 of the Agreement is modified to read as follows: City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $25,000.00 (“Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A. The maximum compensation includes all costs, expense, and reimbursements and will remain in place even if the Contractor’s actual costs exceed the capped amount. City will compensate Contractor within thirty (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 the final payment. 2. Exhibit A of the Agreement is replaced with new Exhibit A-1 attached hereto. 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. 2 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CONTRACTOR By Title Date________________________________ CITY OF CUPERTINO By Title Date________________________________ APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date________________________________ EXPENDITURE DISTRIBUTION PO #2021-41, 2020-538 570-63-621 700-702, 580-63-620 700-702 Original $21,000 Amendment #1: $4,000 (100-62-623 700-702) Amendment #2: Total: $25,000 Fitness Instructor Jun 28, 2021 Heather M. Minner Jul 1, 2021 Assistant Director of Parks and Recreation Jul 1, 2021 Updated 04/15/20 EXHIBIT A-1 SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES The CONTRACTOR will provide Fitness Instruction in, but not limited to, the following: Personal Training, Trekking, Zumba, Strong by Zumba, Sumba Toning, Zumba Gold Location and Time of CONTRACTOR Services: Refer to the City’s Publications for agreed upon dates, times, and locations of a class, camp, activity, program, or service (“class”). The City, at its sole discretion, may change the agreed dates, times and locations of a class, or may cancel a class. Compensation for CONTRACTOR Services: Contractor shall be compensated for services performed pursuant to this Agreement. For the Sports Center: a class taught in person, $42/hour. The Compensation to the Contractor shall not exceed $4,000 for these services. For the Quinlan Community Center: compensation shall consist of the following: $42 for a 60-minute class, $50 for a 75+ minute class. The total compensation to the Contractor shall not exceed $17,000 for these services (FY20-21 = $8,000, FY21-22 = $9,000). For the Senior Center: seventy percent (70%) of revenue generated from the member rate per participant based on final enrollment, plus seventy percent (70%) of the revenue for drop-in passes collected by the contract. The total compensation to the Contractor shall not exceed $4,000 for these services. City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class. Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins. The total compensation to the Contractor shall not exceed $25,000.00. Eligible Participant Minimum and Maximums for CONTRACTOR Services: Sports Center - Minimum: 1 Quinlan Community Minimum: 3 Senior Center - Minimum: 10 Maximum: 4 Center - Maximum: 20 Maximum: 24 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. Updated 04/15/20 List of all Contractor Employees working for the City of Cupertino (if no Employees, identify “self”): Self Performance of CONTRACTOR Services: Class Cancellation Contractor will only receive compensation for a class that is performed. If performance of a class is cancelled by the City or Contractor before instruction begins, Contactor will not receive compensation for the class. If the City or Contractor cancels performance of certain meetings of a class, Contractor will only receive compensation for those meetings of the class that are performed. In the case Contractor unilaterally cancels performance of a class without City approval, City reserves the right to immediately and without notice cancel the remainder of classes offered and or performed by Contractor. COVID-19 Health Order Compliance Contractor acknowledges that its duty to comply with Laws, as stated in Section 13 of the Agreement, includes compliance by Contractor with the restrictions on travel and the Social Distancing Requirements set forth in Section 13.k of the health order issued by the County of Santa Clara Public Health Department on March 31, 2020, in response to the COVID-19 pandemic, and any subsequent amendments or superseding orders thereto (the “Health Order”), and any other local, state, or federal laws or policies that have been or may be enacted in response to the COVID-19 pandemic (collectively, “Health Laws”). Contractor shall comply with these restrictions on travel and Social Distancing Requirements when preforming work under this Agreement. If this Agreement specifies work that cannot be performed in compliance with the Health Order or Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. Contractor shall likewise comply with any City protocols designed to help prevent the spread of COVID-19. Contractor acknowledges that the need to comply with the Health Order and Health Laws may result in the City canceling performance of any class or meetings of a class referenced in this Agreement. Registration, Enrollment, and Supervision 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. Injury of a Class Participant 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. EVANSTON INSURANCE COMPANY CERTIFICATE NO.: - CERTIFICATE OF INSURANCE SPECIAL EVENT LIABILITY PROGRAM PRODUCER PUBLIC ENTITY (ADDITIONAL INSURED) Alliant Insurance Services, Inc. in conjunction with Apex Insurance Services P. O. Box 6450 Newport Beach, CA 92658 License No: OC 36861 NAMED INSURED (EVENT HOLDER): EVENT INFORMATION: TYPE: DATE(S): LOCATION: *Liquor Liability Yes No **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: MASTER POLICY DATES: EFFECTIVE: EXPIRATION: COMMERCIAL GENERAL LIABILITY General Aggregate Limit Products & Completed Operations Personal & Advertising Injury Each Occurrence Limit Damage To Premises Rented To You (Any One Premises) Medical Payments (Any One Person) Liquor Liability (If purchased) Optional Limits Purchased $1,000,000/$3,000,000 $2,000,000/$2,000,000 Property Damage (If purchased) $ 2,000,000 1,000,000 1,000,000 1,000,000 100,000 5,000 1,000,000 OCCURRENCE FORM DEDUCTIBLE: NONE The limits of insurance apply separately to each event insured by this policy as if a separate policy of insurance has been issued for that event. OTHER ADDITIONAL INSUREDS CANCELLATION: Should the above described policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. AUTHORIZED REPRESENTATIVE: DATE ISSUED: SPECIAL CONDITIONS: The following endorsements attached to the Master Policy do not apply to this Certificate Of Insurance: MEGL1643 January 01, 2021 Aerobics Quinlan Community Center, 10185 North Stelling Road, Cupertino, CA 95014, Cupertino Senior Center, 21251 Stevens Creek Blvd, Cupertino, CA 95014 City of Cupertino City of Cupertino, Its City Council, Boards and Commissions, Officers, Officials, Employees, Agents, Servants, Volunteers and Consultants l No Property Damage Coverage 01/11/2021 Grace Duval 01/11/2021 - 12/31/2021 January 01, 2022 © Insurance Services Office, Inc., 2012 Page 1 of 1 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 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. COMMERCIAL GENERAL LIABILITY CG 20 26 04 13 POLICY NUMBER: Information required to complete this Schedule, if not shown above, will be shown in the Declarations. 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 MPIL 1039-CA 01 20 Page 1 of 2 EVANSTON INSURANCE COMPANY IMPORTANT NOTICE CALIFORNIA SURPLUS LINES NOTICE (D-2) 1. The insurance policy that you have purchased is being issued by an insurer that is not licensed by the State of California. These companies are called “nonadmitted” or “surplus lines” insurers. 2. The insurer is not subject to the financial solvency regulation and enforcement that apply to California licensed insurers. 3. The insurer does not participate in any of the insurance guarantee funds created by California law. Therefore, these funds will not pay your claims or protect your assets if the insurer becomes insolvent and is unable to make payments as promised. 4. The insurer should be licensed either as a foreign insurer in another state in the United States or as a non-United States (alien) insurer. You should ask questions of your insurance agent, broker, or “surplus line” broker or contact the California Department of Insurance at the toll-free number 1-800-927-4357 or internet website www.insurance.ca.gov. Ask whether or not the insurer is licensed as a foreign or non-United States (alien) insurer and for additional information about the insurer. You may also visit the NAIC’s internet website at www.naic.org. The NAIC – the National Association of Insurance Commissioners – is the regulatory support organization created and governed by the chief insurance regulators in the United States. 5. Foreign insurers should be licensed by a state in the United States and you may contact that state’s department of insurance to obtain MPIL 1039-CA 01 20 Page 2 of 2 more information about that insurer. You can find a link to each state from this NAIC internet website: https://naic.org/state_web_map.htm. 6. For non-United States (alien) insurers, the insurer should be licensed by a country outside of the United States and should be on the NAIC’s International Insurers Department (IID) listing of approved nonadmitted non-United States insurers. Ask your agent, broker, or “surplus line” broker to obtain more information about that insurer. 7. California maintains a “List of Approved Surplus Line Insurers (LASLI).” Ask your agent or broker if the insurer is on that list, or view that list at the internet website of the California Department of Insurance: www.insurance.ca.gov./01-consumers/120-company/07- lasli/lasli.cfm. 8. If you, as the applicant, required that the insurance policy you have purchased be effective immediately, either because existing coverage was going to lapse within two business days or because you were required to have coverage within two business days, and you did not receive this disclosure form and a request for your signature until after coverage became effective, you have the right to cancel this policy within five days of receiving this disclosure. If you cancel coverage, the premium will be prorated and any broker’s fee charged for this insurance will be returned to you. CLAIMS MADE SEXUAL MISCONDUCT AND MOLESTATION INSURANCE Form: SML Safeguard Wording - 623AFB00213 Policy Number: Renewal of: Named Insured: City of Cupertino – Parks and Recreation Department, Public Works Department Principal Address: 10300 Torre Avenue, Cupertino, CA 95014 Policy Period: From: 1st July 2020 To: 1st July 2021 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 30,000 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@beazley.com (860) 677 3765 (phone) (860) 679 0247 (fax) Retroactive Date: 1st July 2018 Pending or Prior Litigation Date: 1st July 2018 Service of Suit: Foley & Lardner LLP, 555 California Street, Suite 1700, San Francisco, CA 94104- Choice of Law: New York Conditions: Application Dated: 30th June 2020 California Surplus Lines Notice 1- LMA9098A California Complaints Clause – LMA9136 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 Several Liability Notice – LSW1001 Sanctions Limits Clause - LMA 3100 Beazley Safeguard Education Document Tysers 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: 0C66724 Brokerage: Information: Employees – 296 Independent Contractors – 70 Exposure Units – 97,000 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 SUB- CONTRACTORS AND DELETES FULL-TIME BASIS 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 or sub- contractor who performs labor or service for the Insured Organization 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. Fitness Instruction Final Audit Report 2021-07-01 Created:2021-06-08 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAuAHYy7vb9mFIlBUS9xgras03xEsZzO77 "Fitness Instruction" History Document created by City of Cupertino (webmaster@cupertino.org) 2021-06-08 - 10:40:14 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-06-08 - 10:48:17 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-06-08 - 11:39:43 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Grace Duval ( for signature 2021-06-08 - 11:39:45 PM GMT Email viewed by Grace Duval ( 2021-06-09 - 5:30:11 AM GMT- IP address: 75.25.120.195 Email viewed by Grace Duval ( 2021-06-25 - 2:28:32 AM GMT- IP address: 66.249.84.231 Email viewed by Grace Duval ( 2021-06-28 - 4:12:06 PM GMT- IP address: 66.249.84.231 Document e-signed by Grace Duval ( Signature Date: 2021-06-28 - 4:54:53 PM GMT - Time Source: server- IP address: 98.151.131.14 Document emailed to Heather M. Minner (minner@smwlaw.com) for signature 2021-06-28 - 4:54:57 PM GMT Email viewed by Heather M. Minner (minner@smwlaw.com) 2021-07-01 - 7:41:18 PM GMT- IP address: 45.41.142.53 Document e-signed by Heather M. Minner (minner@smwlaw.com) Signature Date: 2021-07-01 - 7:41:49 PM GMT - Time Source: server- IP address: 52.39.49.65 Document emailed to Rachelle Sander (rachelles@cupertino.org) for signature 2021-07-01 - 7:41:54 PM GMT Email viewed by Rachelle Sander (rachelles@cupertino.org) 2021-07-01 - 7:44:20 PM GMT- IP address: 104.47.73.126 Document e-signed by Rachelle Sander (rachelles@cupertino.org) Signature Date: 2021-07-01 - 7:46:45 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-07-01 - 7:46:47 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-07-01 - 7:48:58 PM GMT- IP address: 104.47.74.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-07-01 - 7:49:19 PM GMT - Time Source: server- IP address: 69.110.137.176 Agreement completed. 2021-07-01 - 7:49:19 PM GMT