15-001 Madhu MaratheAGREEMENT BETWEEN THE CITY OF CUPERTINO AND
MADHU MARATHE FOR CONTRACT SERVICES
THIS AGREEMENT, for reference dated August 6, 2015 is by and between CITY OF
CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Madhu Marathe, a
sole proprietor, 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 perforn1 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 tenns and conditions
described herein.
D. City and Consultant desire to enter into an agreement for upon the tenns and
conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM:
The tenn of this Agreement shall commence on September 8, 2015, and shall terminate
on June 30, 2016, unless tenninated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perfonn each and every service set forth in Exhibit "A" which is
attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services perforn1ed pursuant to this Agreement in
the amount set forth below. The Total Compensation under the Agreement is not to exceed
$5,000.00.
Compensation: 70% of resident fee for each participant, based on the final class roster, minus a
$10.00 administrative fee per participant. The City will issue payment one week following the
completion of each program.
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 perfom1ance of this
Agreement.
7. STANDARD OF CARE:
Consultant agrees to perfonn 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 employer-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 tenns 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 nonnally 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 perfonning work hereunder, pursuant to all applicable
IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City
hannless 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
perfonned in com1ection with the Agreement, indemnify, defend, and hold hannless 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 perfonnance 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 perfonned 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 dan1age 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, hannless 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 tenn 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, shall also contain substantially
the following statement: "Should any of the above insurance covered by this certificate be
canceled or coverage reduced before the expiration date thereof, the insurer affording coverage
shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail,
Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during
the perfonnance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is acceptable to City and licensed to do insurance
business in the State of California. Endorsements naming the City as additional insured shall be
submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage 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 single limit policy with aggregate limits in the
amounts of $1,000,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
Proof of automobile insurance required at the California statutory
mmunums.
( 4) Professional Liability:
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 ofloss 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 tenn hereof should fail to secure or maintain the
foregoing insurance, City shall be pennitted 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 pennitted by law and computed from the date written
notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and volunteers shall
be named as an additional insured under all insurance coverages, except any professional liability
insurance, required by this Agreement. The naming of an additional insured shall not affect any
recovery to which such additional insured would be entitled under this policy if not named as
such additional insured. An additional insured named herein shall not be held liable for any
premium, deductible portion of any loss, or expense of any nature on this policy or any extension
thereof. Any other insurance held by an additional insured shall not be required to contribute
anything toward any loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to protect
Consultant. Consultant is advised to confer with Consultant's insurance broker to detennine
adequate coverage for Consultant.
13. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perforn1 the
services required by this Agreement. Consultant may be required to fill out a conflict of interest
fonn if the services provided under this Agreement require Consultant to make ce1iain
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 oflaw 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 assigmnent, 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 assigmnent shall be promptly
furnished to City by Consultant.
The sale, assigmnent, 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 assigmnent 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 perfonnance 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 confonnity 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 tern1 of this
Agreement, all appropriate pennits, certificates, and licenses that may be required in com1ection
with the perfonnance 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, infonnation and data acquired or required by this Agreement shall
become the property of City, and all publication rights are reserved to City. Consultant may
retain a copy of any report furnished to the City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in execution or
implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
( 4) Other City projects as appropriate.
C. Consultant shall, at such time and in such foim as City may require, furnish
reports concerning the status of services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be printed on
recycled paper. All Reports shall be copied on both sides of the paper except for one original,
which shall be single sided.
E. No Report, infonnation 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 infonnation required by City that relate to the perfonnance of
services under this Agreement.
Consultant shall maintain adequate records of services provided in sufficient detail to
pennit an evaluation of services. All such records !'hall 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 contract or failure to act in good faith, then Consultant shall reimburse City for
all reasonable costs and expenses associated with the supplemental examination or audit.
19. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
second business day after the deposit thereof in the United States Mail, postage prepaid,
registered or ce1iified, 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: Director of Recreation and Community Services
All notices, demands, requests, or approvals from City to Consultant shall be addressed to
Consultant at:
20. TERMINATION:
In the event Consultant fails or refuses to perfonn any of the provisions hereof at the time
and in the mam1er required hereunder, Consultant shall be deemed in default in the perfonnance
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 tenninate 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 tennination 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
tennination.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and
regulations enacted or issued by City.
22. CONFLICTOFLAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of another
jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders,
rules, and regulations of the authorities having jurisdiction over this Agreement (or the
successors of those authorities.)
Any suits brought pursuant to this Agreement shall be filed with the courts of the County
of Santa Clara, State of California.
23. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services
performed under this Agreement unless prior written approval has been secured from City to do
otherwise.
24. WAIVER:
A waiver by City of any breach of any tenn, covenant, or condition contained herein shall
not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant,
or condition contained herein, whether of the same or a different character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be
held to vary the provisions hereof. Any modification of this Agreement will be effective only by
written execution signed by both City and Consultant.
25. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement shall be
deemed to be enacted herein, and the Agreement shall be read and enforced as though each were
included herein. If through mistake or otherwise, any such provision is not inserted or is not
correctly inserted, the Agreement shall be amended to make such inse1iion 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 tenns or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
MADHU MARATRE CITY OF CUPERTINO
A Municipal Corporation
By Marilu Mejia
Title:_Recreation Coordinator
Date: August 6, 2015
RECOMMENDED FOR APPROVAL:
(J;&,~;.<JlhA-<.d__,
Title: Senior Recreation Supervisor
APPROVED AS TO FORM:
City Attorney
ATTEST:~\ ~~l{J:J
City Clerk 7/ J l ( )"'
EXPENDITURE DISTRIBUTION:
580-62-613-700-702
Account Number
$5,000.00
Amount
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULTANT will provide instruction of youth math classes in, but not
limited to, the following programs:
Speed and Mental Math
Location and Time of CONSULTANT Services:
Refer to current Recreation Schedule for agreed upon dates, times, and class locations.
By Mutual agreement of both parties, class schedule may change.
Eligible Participant Minimum and Maximums for CONSULTANT Services:
Minimum: 5
Maximum: 18
In the event that less than the required minimum number of participants shall request and
pay for services prior to the agreed upon time for the commencement of services to be
perfonned by Consultant, City may cancel and withdraw from this Agreement.
Performance of CONSUL TANT Services:
City shall have no right of control as to the manner Consultant perfonns the services to be
perfom1ed. Nevertheless, City may, at any time, observe the maimer in which such
services are being perfonned by the consultant.
The Consultant shall follow all guidelines pertaining to registration procedures as listed
in the quarterly recreation schedule. Participants may not take part in the program unless
they are listed on the class roster or can show proof of enrollment. All participants and
volunteers need to coniplete the City's Waiver of Liability fonn prior to taking part in the
prograi11. Contractors are responsible for supervising minors after class until a parent of
legal guardian has arrived.
In the event of an injury occurring to a participant, the Consultant will notify the City
within 1 hour and complete an ABAG Incident Report. The ABAG Incident Report must
be submitted to the City within 24 hours of the injury occurring.
EXHIBITB
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 ofMadhu Marathe 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 infonnational document which includes the text of the
California Mandated Rep01ier Law and contact information for Child Abuse and Neglect
Reporting for the County of Santa· Clara. Please review this infonnation carefully and
acknowledge your receipt and understanding where indicated. If you have questions or
concerns about this fonn or your Mandated Rep01ier responsibilities, please contact the
Recreation Supervisor at 408-777-3120.
I understand that:
• By virtue of my employment or independent contractor status with Madhu
Marathe, 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
hanning 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 rep01i. I must follow up with a written report within 36 hours. This
report may be made to local law enforcement, or County Sheriffs Department,
Probation Department or Child Welfare Agency. (Cal Pen. Code 11166(a)).
• I 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)
• I 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 not 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 Code 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 my
personnel file.
Name (Signature)
H 11._J It U..YZ{ fl I ' N ~1-t'-e./
Name (Print)
Date
EXHIBITC
City of Cupertino Consultant Declaration
The undersigned does hereby certify that:
1. I am a representative of Madhu Marathe (consultant or company name); that I am familiar with
the facts herein and am authorized and qualified to execute this declaration.
2. I declare that Madhu Marathe (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 detennined that none of those
employees has been convicted of a felony, as that tennis 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 Rep01ier 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:
t; /14/tJ,-
Date Consultant Signature
Consultant Title: H tlv~ Ii1., ~