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20-105 Amendment #3 dated 7-14-22 FitPros Consulting Services Agreement1 THIRD AMENDMENT TO AGREEMENT 20-105 BETWEEN THE CITY OF CUPERTINO AND FIT PROS ON LOCATION LLC FOR DIVERSITY AND INCLUSION EDUCATIONAL SEMINARS This Third Amendment to Agreement 20-105 between the City of Cupertino and FIT PROS ON LOCATION LLC is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and FIT PROS ON LOCATION LLC a California limited liability company (“Contractor”) whose address is 1206 Bellingham Dr., Oceanside, CA 92057, and is made with reference to the following: RECITALS: A. On August 21, 2020, Agreement 20-105 (“Agreement”) was entered into by and between City and Contractor for diversity and inclusion educational seminars. B. On January 4, 2021, the City and Contractor entered into a First Amendment to the Agreement. C. On December 17, 2021, the City and Contractor entered into a Second Amendment to the Agreement. D. The Agreement, First and Second Amendments are collectively referred to as the “Agreement”, unless otherwise indicated. E. 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: TIME OF PERFORMANCE 1. Paragraph 3.1 of the Agreement is modified to read as follows: This Agreement begins on the Effective Date and ends on December 31, 2024 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the Effective Date and shall be completed by December 31, 2024. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached here and incorporated as Exhibit B4. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the services on time. 2. Exhibit B3 of the Agreement is replaced with New Exhibit B4 attached hereto. 2 COMPENSATION 3. Paragraph 4.1 of the Agreement is modified to read as follows: City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $20,000.00 (“Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C2, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. 4. Exhibit C of the Agreement is replaced with a new Exhibit C2 attached hereto. 5. 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. CITY OF CUPERTINO FIT PROS ON LOCATION LLC By By Title Title Date Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date Lindsay Johnson Founder & CEO 07/13/22 Director of Administrative Services 07/14/22 Christopher D. Jensen 07/14/22 3 COMPENSATION BREAKDOWN Amount Original Agreement $10,000 First Amendment No Change Second Amendment No Change Third Amendment $10,000 TOTAL $20,000 EXHIBIT B4 SCHEDULE OF PERFORMANCE Fitpros virtual services will be provided during Fall 2022 - Fall 2024 City of Cupertino BEST Training Program. In the event that the Company wishes to cancel or postpone a class or activity within 15 days prior to the existing date of such event, or cancel a within 31 days, the Company agrees that it shall not be entitled to reschedule such event without Service Provider’s prior written consent. EXHIBIT C2 COMPENSATION City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $20,000. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022 Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease.  Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. 1001486 132849.12 03-16-2016 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME: CONTACT (A/C, No): FAX E-MAIL ADDRESS: PRODUCER (A/C, No, Ext): PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT ER OTH- STATUTE PER LIMITS(MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) POLICY EFF POLICY NUMBERTYPE OF INSURANCELTR INSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 07/05/2022 JOE FREUND STATE FARM AGENCY 1734 DIVISADERO ST SAN FRANCISCO CA 94115 JOE FREUND 415-359-9311 628-208-6984 DEBBIE@JOEFREUND.COM FIT PROS ON LOCATION LLC 1206 BELLINGHAM DR OCEANSIDE CA 92057 25151 A BUSINESS - MISC Y Y 1,000,000 300,000 10,000 1,000,000 2,000,000 2,000,000 CMP-4860.1 City of Cupertino 10300 Torre Avenue Cupertino CA 95014 State Farm General Insurance Company 97-CT-X843-3 08/31/2022 08/31/2023 CMP-4860.1 Page 1 of 2 CMP-4860.1 ADDITIONAL INSURED — DESIGNATED PERSON OR ORGANIZATION THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY ES Policy No.97 CTX843 3 0180-FAF2 This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE Policy Number: Named Insured: 97 CTX843 3 FIT PROS ON LOCATION LLC 1206 BELLINGHAM DR OCEANSIDE CA 92057-2723 Name And Address Of Additional Insured Person Or Organization: THE CITY OF CUPERTINO ITS CITY COUNCIL, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, SERVANTS AND VOLUNTEERS 10300 TORRE AVE CUPERTINO CA 95014 3255 © , Copyright, State Farm Mutual Automobile Insurance Company, 2013 Includes copyrighted material of Insurance Services Office, Inc., with its permission. CONTINUED If the contract or agreement between you and the additional insured is governed by California Civil Code Section 2782 or 2782.05, the insurance provided to the additional insured is the lesser of that which: c. If coverage provided to the additional in- sured is required by a contract or agree- ment, the insurance provided to the additional insured will not be broader than that which you are required by the con- tract or agreement to provide for such ad- ditional insured; and b. We have no duty to defend or indemnify the additional insured under this endorsement un- til a claim or “suit” is tendered to us. You are required by contract or agreement to provide for such addi- tional insured. (2) Is allowed for the satisfaction of a de- fense or indemnity obligation by Cali- fornia Civil Code Section 2782 or 2782.05 for your sole liability; or (1) “Your work” performed for that additional insured and included in the “products- completed operations hazard”. However, Paragraph 1. above is subject to the following: The insurance afforded to the additional insured only applies to the extent permit- ted by law; a. b.Products–Completed Operations In the performance of your ongoing operations; or (2) In connection with your premises; or(1) Premises And Ongoing Operationsa. SECTION II — WHO IS AN INSURED of SECTION II — LIABILITY is amended to in- clude, as an additional insured, any person or organization shown in the Schedule, but only with respect to liability for “bodily injury”, “property damage”, or “personal and advertis- ing injury” caused, in whole or in part, by: 1. Your acts or omissions or the acts or omissions of those acting on your behalf: Available under the applicable Limits Of Insurance shown in the Declarations. b. Required by the contract or agreement; ora. With respect to the insurance afforded to the additional insured, the following is added to SECTION II — LIMITS OF INSURANCE: If coverage provided to the additional insured is required by contract or agreement, the most we will pay on behalf of the additional insured will be the lesser of the amount of insurance: 3. Any insurance provided to the additional in- sured shall only apply with respect to a claim made or a “suit” brought for damages for which you are provided coverage. This endorsement shall not increase the ap- plicable Limits Of Insurance shown in the Declarations. 2. The names and addresses of any in- jured persons and witnesses; and (2) How, when and where the “occur- rence” or offense took place; (1) See to it that we are notified as soon as practicable of an “occurrence” or an of- fense which may result in a claim. To the extent possible, notice should include: a. With respect to the insurance afforded to the additional insured, the following is added to Paragraph 3. Duties In The Event Of Occur- rence, Offense, Claim Or Suit of SECTION II — GENERAL CONDITIONS: The additional insured must: 4. This endorsement shall not increase the ap- plicable Limits Of Insurance shown in the Declarations. Tender the defense and indemnity of any claim or “suit” to us and to all other insur- ers who may have insurance potentially available to the additional insured; and b. The nature and location of any injury or damage arising out of the "occur- rence” or offense; (3) Regardless of any agreement between you and the additional insured, this insur- ance is excess over any other insurance whether primary, excess, contingent or on any other basis for which the additional in- sured has been added as an additional in- sured on other policies. b. This insurance is primary to and will not seek contribution from any other insur- ance available to the additional insured, provided that the additional insured is a named insured under such other insur- ance. a. With respect to the insurance afforded the ad- ditional insured, the following replaces SEC- TION II — LIABILITY of Paragraph 7. Other Insurance of SECTION I AND SECTION II — COMMON POLICY CONDITIONS: 5. Agree to make available any other insur- ance the additional insured has for de- fense or damages for which we would provide coverage under SECTION II — LIABILITY. c. CMP-4860.1 1007042 148020 08-26-2014 © , Copyright, State Farm Mutual Automobile Insurance Company, 2013 Includes copyrighted material of Insurance Services Office, Inc., with its permission. All other policy provisions apply. There will be no refund of premium in the event this endorsement is cancelled. CMP-4860.1 Page 2 of 2 FitPros Consulting Services Agreement Final Audit Report 2022-07-14 Created:2022-07-13 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAzS1XUEF3g0sNqA-UanDOkxibZ27AM0j8 "FitPros Consulting Services Agreement" History Document created by City of Cupertino (webmaster@cupertino.org) 2022-07-13 - 10:58:24 PM GMT- IP address: 35.229.54.2 Document emailed to Janet Liang (janetl@cupertino.org) for approval 2022-07-13 - 11:00:07 PM GMT Email viewed by Janet Liang (janetl@cupertino.org) 2022-07-13 - 11:10:37 PM GMT- IP address: 104.47.73.254 Document approved by Janet Liang (janetl@cupertino.org) Approval Date: 2022-07-13 - 11:10:55 PM GMT - Time Source: server- IP address: 73.158.94.229 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2022-07-13 - 11:10:57 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2022-07-13 - 11:54:24 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to lindsay@fitpros.com for signature 2022-07-13 - 11:54:26 PM GMT Email viewed by lindsay@fitpros.com 2022-07-14 - 0:20:25 AM GMT- IP address: 104.28.85.133 Document e-signed by Lindsay Johnson (lindsay@fitpros.com) Signature Date: 2022-07-14 - 0:21:23 AM GMT - Time Source: server- IP address: 68.107.57.119 Document emailed to Kristina Alfaro (kristinaa@cupertino.org) for signature 2022-07-14 - 0:21:25 AM GMT Email viewed by Kristina Alfaro (kristinaa@cupertino.org) 2022-07-14 - 4:43:24 AM GMT- IP address: 104.28.123.113 Document e-signed by Kristina Alfaro (kristinaa@cupertino.org) Signature Date: 2022-07-14 - 3:18:31 PM GMT - Time Source: server- IP address: 208.95.236.60 Document emailed to christopherj@cupertino.org for signature 2022-07-14 - 3:18:33 PM GMT Email viewed by christopherj@cupertino.org 2022-07-14 - 3:22:40 PM GMT- IP address: 104.47.73.126 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2022-07-14 - 3:23:07 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2022-07-14 - 3:23:09 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2022-07-14 - 3:48:34 PM GMT- IP address: 104.28.123.104 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2022-07-14 - 3:51:05 PM GMT - Time Source: server- IP address: 104.28.123.176 Agreement completed. 2022-07-14 - 3:51:05 PM GMT