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14-163 Kim Marie Smith for Apple device instruction and supportI " AMENDMENT ONE TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND KIM MARIE SMITH FOR CONTRACT SERVICES THIS AGREEMENT, for reference dated June 6, 2014, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Kim Marie Smith, consultant, whose address is (hereinafter referred to as "Consultant"), and is made with reference to the following: RECITALS 1. TERM: The term of this Agreement shall commence on July 1, 2014, and shall terminate on June 30, 2015, unless terminated earlier as set forth herein. City and Consultant desire to modify the Agreement on the terms and conditions set forth herein. The term of this Agreement is modified to: The term of this Agreement shall commence on July 1, 2014 and shall terminate on June 30, 2016, unless tenninated earlier as set forth herein. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT Kim Marie Smith CITY OF CUPERTINO A Municipal Corporation Rick Kitson Title: iPad Trainer & Consultant Title: Public Affairs Director Date: July 27, 2015 Date: July 27, 2015 RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM: City Attorney ATTEST: 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrgw Page 1 of 15 Stat 3Fa'm 97 -B6 -Y126-0 004295 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. CMP4786.1 ADDITIONAL INSURED -- OWNERS, LESSEES, OR CONTRACTORS (Scheduled) f This endorsement modes insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE Policy Numbers 97.66-Y126.0 Named Insured. SMITH KIM 1421 MILLICH CT SAN JOSE CA 95117.3629 Name And Address Of Additional Insured Person Or Organization: CITY OF CUPERTINO 10300 TORRE AVE CUPERTINO CA 95014.3255 https://www.clropboxstatic.com/static/J*avascript/external/pdf-j s-e9O72ae/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrqw Page 2 of 15 1. SECTION II — WHO IS AN INSURED of b. If coverage provided to the ad SECTION II — LIABILITY is amended to in- sured is required by a contras clude, as an additional insured, any person or ment, the insurance provid organization shown in the Schedule, but only additional insured will not be br with respect to liability for "bodily injury", that which you are required by ti "property damage", or "personal and adverbs-that anreemPnt to nrnvide for sue 97-138•Y126-0 004295 2. 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. 3. 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: a. Required by the contractor agreement; or b. Available under the applicable Limits Of 5' Insurance shown in the Declarations. This endorsement shall not increase the ap- plicable Limits Of Insurance shown in the Declarations. 4. With respect to the insurance afforded to the additional insured, the following is added to (3) The nature and location of or damage arising out of rence" or offense; b. Tender the defense and inderr claim or "suit" to us and to all c ers who may have insurance available to the additional insur4 c. Agree to make available any c ance the additional insured h Tense or damages for which provide coverage under SEC' LIABILITY. With respect to the insurance affore ditional insured, the following rept, TION II —LIABILITY of Paragrapf Insurance of SECTION I AND SEC COMMON POLICY CONDITIONS:. a. This insurance is primary to ai seek contribution from any other available to the additional insure4 https://www.clropboxstatic. coin/static/j avaseript/externallpdf-j s-e9O72ac/web/viewer-vflp... 7/30/2015 5UArB172Zuh4J0s601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrqw Page 3 of 15 Paragraph 3. Duties In The Event Of Occur- rence, Offense, Claim Or Suit of SECTION ll GENERAL CONDITIONS: The additional insured must: a. 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: (1) How, when and where the "occur- rence" or offense took place; that the additional Insured is a sured under such other insuranc b. Regardless of any agreement you and the additional insured, ance is excess over any other whether primary, excess, contin any other basis for which the ad sured has been added as an ad sured on other policies. There will be no refund of premium in this endorsement is cancelled. (2) The names and addresses of any in- jured persons and witnesses; and All other policy provisions apply. CMP -4780.1 0, Copyright, State Farm Mutual Automobile Insurance Company, 2013 includes copyrighted material of Insurance Services Office, Inc., with its permission. StateFarrrr STATE FARM GENERAL, INSURANCE COMPANY A STOCK COMPANY KITH HOME OFFICES w sLOOMINGTO . ILLINOIS DECLARATIONS AMENDED JUN 1 i sakvomle ARd933f 1-950f R-02-3738-FBOC F N 040456 312.3 Named Insured SMITH, KIM Policy Number 97•B6 -Y126 - Policy Period Effective Date 12 Months JUN 17 2015 The policy period begins rind ends a time at tie premises location. Agent and Mailing Address TODD SCOTT 860 S WINCHESTER BLVD ST SAN JOSE CA 95128-2962 PHONE: (408) 248-9000 Businessowners Policy Automatic Renewal -If the oolicv period is shown as 12 months , this policy will be renewed automatically subject to th littps://,,vww.dropboxstatic. coin/static/j a.vaseript/exieriial/pdf-j s-e9O72 ac/web/viewer-vilp... 7/30/2015 5UArB172Zuh4JOs60lwgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrqw Page 4 of 15 forms in effect for each succeeding policy period. if this policy is terminated, we will give you and the Mortgagee/Lienhc compliance with the policy provisions or as required by law. Entity: Individual Reason for Declarations: Your policy is amended JUN 17 2015 ADDITIONAL INSURED ADDED FORM CMP -4786.1 ADDED Endorsement Premium None DECLARATIONS (CONTINUED) Businessowners Policy for SMITH, KIM Policy Number 97-86-Y126-0 SECTION I,- PROPERTY SCHEDULE littps://www.dropboxstatic,com/static/j avaseript/external/pclf-j s-e9072ae/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrqw Page 5 of 15 Location Location of Limit of Insurance* Limit of Insurance* Number Described Premises Coveragge A - Coverage B - Bulldings Business Personal Property 001 1421 MILLICH CT No Coverage $ 1,200 SAN JOSE CA 95117-3629 * As of the effective date of this policy, the Limit of Insurance as shown includes any increase in the limit due to SECTION I - INFLATION COVERAGE INDEVESI Gov A - Inflation Coverage Index: Cov B - Consumer Price Index: SECTION I • DEDUCTIBLES N/A 238.3 Basic Deductible $1,000 Special Deductibles; Money and Securities $250 Equipment Breakdown $1,000 StateFarm no DECLARATIONS (CONTINUED) Businessowners Policy for SMITH, KIM Policy Number 97-136-Y126-0 ht-tps://www.dropboxstatic.coin/staticljavaseript/external/pdf-js-e9O72ae/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs60lwgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrqw Page 6 of 15 SECTION I - EXTENSIONS OF COVERAGE - LIMIT OF INSURANCE - EACH DESCRIBED PREMISES The coverages and corresponding limits shown below apply separately to each described premises Declarations, unless Indicated by "See Schedule." If a coverage does not have a corresponding lim but has "Included" indicated, please refer to that policy provision for an explanation of that coverag, COVERAGE Accounts Receivable On Premises Off Premises Arson Reward Collapse L IN Damage To Non -Owned Buildings From Theft, Burglary Or Robbery Covera4 Debris Removal Equipment Breakdown Fire Department Service Charge Fire Extinguisher Systems Recharge Expense Forgery Or Alteration Glass Expenses DECLARATIONS (CONTINUED) Businessowners Policy for SMITH, KIM Policy Number 97-136-Y126-0 25% of cov https://wvvw.dropboxstatic.com/static/javaseript/external/pelf js-e9072ae/web/viewer-vtlp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrqw Page 7 of 15 Ordinance Or Law - Equipment Coverage Outdoor Property Personal Effects (applies only to those premises provided Coverage B - Business Personal Property) Personal Property Off Premises Pollutant Clean Up And Removal Preservation Of Property Property Of Others (applies only to those premises provided Coverage B - Business Personal Property) Signs Valuable Papers And Records On Premises Off Premises Water Damage, Other Liquids, Powder Or Molten Material Damage SECTION I EXTENSIONS OF COVERAGE - LIMIT OF INSURANCE - PER POLICY StateFar€n https://w-ww. clropboxstatic. coitalstatic/j a.vascript/externa]/pctf--j s-e9O72aelweb/viewer-vflp... 7/30/2015 5UArS172Zuh4JOs60lwgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTrgw Page 8 of 15 ff 0-3111111 "O DECLARATIONS (CONTINUED) Businessowners Policy for SMITH, KIM Policy Number 97-136-Y126.0 Coverage M - Medical Expenses (Any One Person) Damage To Premises Rented Ta You $ LIP AGGREGATE LIMITS INS Products/Completed Operations Aggregate $2, General Aggregate $2, Each paid claim for Liability Coverage reduces the amount of insurance we provide during the applicable annual period. Please refer to Section II - Liability in the Coverage Form and any attached endorsements. Your policy consists of these Declarations, the BUSINESSOWNERS COVERAGE FORM shown below, and forms and endorsements that apply, including those shown below as well as those issued subsequent to the issuance of this policy. https://www.clropboxstatic.com/static/J*avaseript/external/pclf js-e9072ac/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHYtHnOMmTrqw Page 9 of 15 FORMS AND ENDORSEMENTS CMP -4101 Businessowners Coverage Form CMP -4786.1 *Adds Insd Owners Lessee Sched DECLARATIONS (CONTINUED) Susinessowners Pollcy for SMITH, KIM Policy Number 97-86-YI26-0 This policy is issued by the State Farm General Insurance Company, Participating Policy You are entitled to participate in a distribution of the earnings of the company as determined by our Board c accordance with the Company's Articles of Incorporation, as amended. In Witness Whereof, the State Farm General Insurance Company has caused this policy to be signed by its Secretary at Bloomington, Illinois. .r0 - ,. https:Hw-wv v.dropboxstatic.com/static/javascript/external/pdf js-e9072ac/,,veb/viewer-vllp... 7/30/2015 5UA1B172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMinTr... Page 10 of 15 c� ht V4*.>z.4" Secretary �teMrVtQ. 6.�* President IMPORTANT NOTICE: California law requires us to provide you with information for filing complaints with the State Department regarding the coverage and service provided under this policy, Complaints should be filed only after you and State Farm or your agent or other company re; have failed to reach a satisfactory agreement on a problem. Please forward such complaints to: California Department of Insurance ('nn. ij Sarwrainn - StateFarm 97 -B6 -Y126.0 004294 e THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CMP -4786.1 ADDITIONAL INSURED --- OWNERS, LESSEES, OR CONTRACTORS (Scheduled) This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE Policy Number: 97 -B6 -Y126.0 Named Insured: SMITH KIM 1421 IWCH CT SAN JOSE CA 95117-3629 littl)s://www.dropboxstatic.com/static/javaseript/external/pdf-js-e9O72ac/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTr... Page 11 of 15 Name And Address Of Additional Insured Person Or Organization: CITY OF CUPERTINO 10300 TORRE AVE CUPERTINO CA 95014.3255 1. 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: b. If coverage provided to the ad sured is required by a contract ment, the insurance provide additional insured will not be br+ that which you are required by tt or agreement to provide for suc al insured; and a. Ongoing Operations c. If the contract or agreement be (1) Your acts or omissions; or and the additional insured is gc (2) The acts or omissions of those acting California Civil Code Section on your behalf; 2782.05, the insurance provid .. in the performance of your ongoing opera- additional insured is the less tL 97-136-Y126-0 004294 2. Any insurance provided to the additional in- sured shall only apply with respect to a claim made ora suit" brought for damages for which you are provided coverage. 3. Wt 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: a. Required by the contractor agreement; or (3) The nature and location of or damage arising out of th rence" or offense; b. Tender the defense and indemn claim or "suit" to us and to all otl ers who may have insurance K available to the additional insured c. Agree to make available any otl ance the additional insured ha fense or damages for which v provide coverage under SECTI! LIABILITY. IAM -L ­­+ in +k, inoiranna offnr�e https://wvw.dropboxst,ttic.com/static/J*avascrilDt/external/pdf-j s-e9072ac/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8dzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMiiiTr... Page 12 of 15 b. Available under the applicable Limits Of U. VVIUI ICJf1Ct+t tV my GIIVII.lc ditional insured, the following replac Insurance shown in the Declarations. TION II —LIABILITY of Paragraph This endorsement shall not increase the ap- Insurance of SECTION I AND SEC1 plicable Limits Of Insurance shown in the COMMON POLICY CONDITIONS: Declarations. a. This insurance is primary to an( 4. \Nth respect to the insurance afforded to the seek contribution from any other i additional insured, the following is added to available to the additional insured, Paragraph 3. Duties In The Event Of Occur- that the additional insured is a n rence, Offense, Claim Or Suit of SECTION sured under such other insurance 11— GENERAL CONDITIONS: b. Regardless of any agreement The additional insured must: you and the additional insured, tl ance is excess over any other i a. See to it that we are noted as soon as whether primary, excess, conting practicable of an "occurrence" or an of- any other basis for which the add fense which may result in a claim. To the sured has been added as an add extent possible, notice should include: sured on other policies. (1) How, when and where the "occur- There will be no refund of premium in t rence" or offense took place; this endorsement is cancelled. (2) The names and addresses of any in- jured persons and witnesses; and All other policy provisions apply. a, Copyright, State Farm Mutual Automobile Insurance Company, 2013 Includes copyrighted material of Insurance Services Office, Inc., with its permission. StateFarr� j F stA r FAM GENERAL INSURANCE COMPANY y AsrOCKGOMPANYW17-HHOME oFFIcESINELOOMINGrON,ILLINOIS INLAND MARINE ATTACHING DI 94kers�rJr6 d93311-9501 Policy Number 97-86-Y126-( Policy Period Effective Date R-02-3738-FBOC F N 12 Months JUN 17 2015 The poli y period begins and ends al Named Insured time at a premises location. SMITH, KIM https://www.dropboxstatic.com/static/javaseript/external/pdf--j s-e9072ac/web/viewer-vflp... 7/30/2015 5UArB 172Ztffi4J0s601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTr... Page 13 of 15 SAN JOSt CA 95111-56Z9 4,1 ATTACHING INLAND MARINE Automatic Renewal - If the policy period is shown as 12 months , this policy will be renewed automatically subject to thi forms in effectfor each succeeding policy period. Ifthis policy is terminated, we will give you and the Mortgagee/Lienhc compliance with the policy provisions or as required by law. Annual Policy Premium Included The above Premium Amount is included in the Policy Premium shown on the Declarations. Your policy consists of these Declarations, the INLAND MARINE CONDITIONS shown below, and any other forms and ei apply, including those shown below as well as those issued subsequentto the issuance of this policy. Forms, Options, and Endorsements v r -136-Y126-0 ATTACHING INLAND MARINE SCHEDULE PAGE https://ww-,v.clrol)boxstatic.com/static/j avaseript/external/pcff-j s-e9O72ac/web/tjiewer-vflp... 7/30/2015 5UArB 172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTr ATTACHING INLAND MARINE ENDORSEMENT LIMIT OF NUMBER COVERAGE INSURANCE FE -8745 Inland Marine Computer Prop $ 25,000 Loss of Income and Extra Expense $ 25,000 Page 14 of 15 DEDUCTIBLE AMOUNT 500 https://w�vw.dropboxstatic.con-i/static/javaseript/external/pdf js-e9072ac/web/viewer-vflp... 7/30/2015 5UArB172Zuh4JOs601wgTY8AuCz8gzsTGQAzozV2cZCF8ZUN4uvdHxtHnOMmTr... Page 15 of 15 z OTHER LIMITS AND EXCLUSIONS MAY APPLY - REFER TO YOUR POLICY Prepared O Copyright, State Farm Mutual Automobile Insurance Company, 2008 2 2 JUN 226007 2015 227 Includes copyrighted material of Insurance Services Office, Inc., with its permission. FD -004293 https:llwww. dropboxstatic. conn/static/j avaseript/external/pctl=j s-e9O72ac/web/viewer-vflp... 7/30/2015 NO. FY 14-15 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND KIM SMIT R CONTRACT :SERVICES V_ This Agreement, for reference dated June 6, 2014, is by and between City of Cupertino, a municipal corporation (hereinafter referred to as "City"), and Kim Marie Smith, consultant, whose address is (hereinafter referred to as "Consultant"), and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for Apple device instruction and support upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall commence on July 1, 2014, and shall terminate on June 30, 2015, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. Information and Technology Department: CONSULTANT will provide assistance to various departments in the City of Cupertino. These services include, but are not limited to, the following items: For City Council, Planning Commission and staff, as needed • Help Desk services for Apple devices, including trouble -shooting and software installation and/or updating. • Pad and Phone training and customization, including assistance with setting -up email accounts • In-person support and/or training will take place at city -owned facilities during regular business hours. • Telephone consultation is available from 9 a.m. to 9 p.m., 7 days a week, by calling (408) 202-4912. CONSULTANT reserves the right to refer users to Apple's technical support team if the matter cannot be resolved during a 30 -minute telephone consultation. 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in the amount set forth below. The total compensation under the Agreement is not to exceed $5,000.00. Compensation: Information Technology Department: City shall compensate Consultant for professional services described in this Agreement in accordance with the terms and conditions of this Agreement based on the rates and compensation schedule set forth below up to the not to exceed budget amount set forth below. The compensation for all services described in "SERVICES TO BE PERFORMED" shall not exceed five thousand dollars ($5,000.00). Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the City. Hourly Rates $90.00 per hour Invoices In order to request payment, Consultant shall submit monthly invoices to the City describing the services performed and the applicable charges to each entity (including, where applicable an identification of personnel who performed the services, hours worked, task(s) for which work was performed, hourly rates, and reimbursable expenses), based upon Consultant's billing rate and reflecting an equal split of Consultant's charges between City. Reimbursable Expenses Administrative, overhead, secretarial time or overtime, word processing, photocopying, in house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. City shall reimburse consultant for reasonable travel. Travel expenses are limited to the lesser of actual expenses or expenses that would be authorized for City employee travel pursuant to City policy, whichever is lower. Additional Services Consultant shall provide additional services outside of the services identified in "SERVICES TO BE PERFORMED" only be advance written authorization from the City prior to commencement of any additional services. Consultant shall submit, at the Project Manager's request, a detailed written proposal including a description of the scope of additional services, schedule, and proposed maximum compensation. 4. ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS: Consultant shall comply with the requirements of California Penal Code 11164- 11174.3 and as set forth in Exhibit "B" which is attached hereto and incorporated herein by this reference. 5. FINGERPRINT AND TB CONSULTANT DECLARATION: Consultant agrees that all individuals covered under this Agreement shall provide fingerprints for criminal background test purposes and results of TB screening, pursuant to the requirements as set forth in Exhibit "C" which is attach hereto and incorporated herein by this reference. 6. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. 7. STANDARD OF CAFE: Consultant agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 8. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of an independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 9. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harrnless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 10. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 11. HOLD HARMLESS: A. Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the performance of this Agreement by Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. B. Claims for Other Liability. Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. C. Claims involving intellectual property_. In addition to the obligations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold the City, its elected and appointed officers, employees, and volunteers, harmless from and against any Claim in which a violation of intellectual property rights, including but not limited to copyright or patent rights, is alleged that arises out of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 12. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 12 A, B, C, D and E. Such certificates, which do not limit Consultant's indemnification, shill also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty, (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following insurance coverage.- (1) overage:(1) Workers' CompensatiOTE Statutory coverage as inquired by the State of California. (2) Liab li : Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $250,000 aggregate If submitted, combined siingle limit policy with aggregate limits in the amounts of $1,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Proof of automobile insurance required at the California statutory minimums. (4) Professional Liability.- Professional iabili :Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. B. SUBROGATION WAIVER: Consultant agrees that in the event of Foss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverage, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 13. CONFLICT OF INTEREST: Consultant warrants that it is not a conflict of interest for Consultant to perform the services required by this Agreement. Consultant may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 14. PROHIBITION AGAINST TRANSFERS: Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sub -lessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venture or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or co -tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 15. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 16. PERMITS AND (LICENSES: Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and that may be required in connection with the performance of services hereunder. 17. REPORTS: A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report," reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. S. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project, and/or (4) Other City projects as appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied an both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 18. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its de-signees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contractor failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 19. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Public Affairs Director All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: Kim Smith 20. TERMINATION: at In the event Consultant fails or refuses to perform any of the provisions hereof the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such default is not cured within the time specified after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving thirty (30) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. City has no obligation to offer any of Consultant's services to participants, and, unless minimum enrollment for a particular class identified in the Scope of Services is met, City may cancel that class without further notice to Consultant or payment under this Agreement. The city in its sole discretion may determine the type of classes, the number of classes, and any assigned instructor. Consultant understands that this is an non-exclusive agreement. 21. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 22. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 23. ADVERTISEMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 24. WAWER: A waiver by City! of any Tbr6ach of'*any term, covenant, or condition contained herein shall not be.deemed to be `aLLwaiv'er of any subsequent breach of the same or any other tern), covenant, or condition contained herein, whether of the same or a different character. 22. INTEdRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between'the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 25. MERTE® PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 26. CAPTIONS: The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. KIM MARIE SMITH CITY OF CUPERTIN9 A Munfcip o1rpor B By Y / Title: �{�ad"[-rers�Can�ul'ta,n't Title: , m�S�r( Date: 9/30/ 14 RECOMMENDED FOR APPROVAL: Date: PROV E AS TO FORM: Cit Atiorne Date: e ATTES City Clerk Date: Lo (6 (ty EXPENDITURE DISTRIBUTION: Account Number Amount 610-3800-7014 $5,000.00 [ XHWT A CONSULTANT SER=VE -S TO BE PERFORMED Performance of CONSULTANT Services: City shall have no right of control as to the manner Consultant performs the services to be performed. Nevertheless, City may, at any time, observe the manner in which such services are being performed by the consultant. In the event of an injury occurring to a parti6pant, the Consultant will notify the City within 1 hour and complete an ABAG Incident Report. The ABAG Incident Report must be submitted to the City within 24 hours of the injury occurring. :OM ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS, RECEIPT OF TRAINING, AND RECEIPT OF PENAL CODES STATUTES A mandated reporter is an individual who is obligated by law to report suspected cases of child abuse and neglect. In general, any individual who, in the ordinary course of their employment, has contact with children is a mandated reporter. Mandated reporters include child care workers, teachers and coaches. (California Penal Code 11165.7). If your job duties as an employee or an independent contractor of Kim Marie Smith include contact with children, you are a Mandated Reporter. Prior to commencing employment and as a prerequisite of that employment, California law requires that you sign a statement to the effect that you have knowledge of the provisions of the Mandated Reporter Law, and will comply with those provisions. (California Penal Code 11166.5). The following are the Mandated Reporter responsibilities under California law. You are also being provided with a separate informational document which includes the text of the California Mandated Reporter Law and contact information for Child Abuse and Neglect Reporting for the County of Santa Clara. Please review this information carefully and acknowledge your receipt and understanding where indicated. If you have questions or concerns about this form or your Mandated Reporter responsibilities, please contact the Recreation Supervisor at 408-777-3120. I understand that: By virtue of my employment or independent contractor status with Kim Marie Smith, and because my employment requires me to have contact with children, I am a Mandated Reporter as defined by California Penal Code 11165.7. The following situations trigger mandatory reports: a) Physical Abuse (willful harming of a child); b) Sexual abuse including sexual assault, child exploitation, pornography, and trafficking; c) Severe or General Neglect; and d) Extreme Corporal Punishment (resulting in injury). (Cal. Pen. Code 11165 et. seq.) I further understand that I may, but am not required to, report suspected Emotional Abuse. If I reasonably suspect that a child is being abused, I must immediately make a telephone report. I must follow up with a written report within 36 hours. This report may be made to local law enforcement, or County Sheriff's Department, Probation Department or Child Welfare Agency. (Cal Pen. Code 11166(a)). ® 1 am not required to, but I may, share information about suspected abuse with my supervisor or management or the parents of the alleged victim. When I make a mandated report, I will be required to give my name. However, my identity will be kept confidential unless I either consent to disclosure or if the disclosure is made pursuant to a court order. Further, agencies investigating the mandated report may disclose my identity to one another. (Cal Pen. Code 11167(d)). The following agencies and individuals receiving or investigating mandated reports may disclose my identity to one another: o Prosecutors in a criminal prosecuting or in an action initiated under section 602 of the Welfare and Institutions Code arising from alleged child abuse; o Counsel appointed pursuant to subdivision (c) of Section 317 of the Welfare and Institutions Code; o A licensing agency when abuse or neglect in out -of -home care is reasonably suspected. (Cal Pen. Code 11167.5) 1 may not be disciplined, dismissed, retaliated against, discriminated against or harassed for making a mandated report of reasonably suspected child abuse. As a Mandated Reporter, I have civil and criminal immunity when making a report (Cal Pen. Code 11172). As a Mandated Reporter, it is a misdemeanor to fail to comply with Mandated Reporting laws and i can be held criminally liable for failing to report suspected abuse. The penalty for this is up to six months in County jail, a fine of snot more than $1000, or both. I further understand I could be civilly liable for failure to report. (Cal. Pen. Code 11166(c)). i have been provided with a copy of California penal Coyle sections 11164-11174.3 (Mandated Reporter Law). I understand that i am a legally Mandated Reporter. i am aware of and understand my responsibilities under the Mandated Reporter laws of this state and am willing and able to comply. i understand that a copy of this Acknowledgement will be kept in may personnel file. Mame (Signature) Name (Print) Date EXHIBIT C City of Cupertino Consultant Declaration The undersigned does hereby certify that: 1. 1 am a representative of Kim Marie Smith (consultant or company name), that I am familiar with the facts herein and am authorized and qualified to execute this declaration. 2. 1 declare that Kim Marie Smith (consultant or company name) has complied with fingerprinting and criminal background investigation requirements with respect to all Consultant's employees who may have contact with minors in the course of providing services pursuant to the Agreement, and the California Department of Justice has determined that none of those employees has been convicted of a felony, as that term is defined in California Penal Code Section 11105.3. 3. That a complete and accurate list of Consultant's employees, who may come in contact with minors during the course and scope of the Agreement, are included below. 4. All of the below mentioned employees have tested negative for TB, or X-ray results for TB, and have current documentation on file with Consultant. 5. All of the below mentioned employees have received training and understand their responsibilities under the Mandated Reporter laws of this state and are willing and able to comply. A List of all Consultant Employees Working for the City of Cupertino: 6. The City of Cupertino will be notified by Consultant in writing of any new employees and will be added to the above list prior to beginning work for the City of Cupertino. I declare under penalty of perjury that the foregoing is true and correct- Title orrect: Title Date Place Consultant Signature