17-001 Whole Brain Health Initiative NO. 25— V5
FY 17-18
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
WHOLE BRAIN HEALTH INITIATIVE
FOR BRAIN HEALTH INSTRUCTION
THIS AGREEMENT,for reference dated THURSDAY,MAY 4,2017,is by and between CITY OF
CUPERTINO,a municipal corporation(hereinafter referred to as"City"),and WHOLE BRAIN HEALTH
INITIATIVE,a BRAIN HEALTH INSTRUCTOR AND FACILITATOR,whose address is
PHONE: ( EMAIL:
(hereinafter referred to as"Consultant"),and is made with reference
to the following:
A. SCOPE OF SERVICES. Contractor shall provide or furnish the following specified
services and/or materials:BRAIN HEALTH INSTRUCTION AND FACILITATION.Services are further
described in Exhibit"A".
B. TERM. The term of this Agreement shall commence on 7/1/2017,and shall terminate on
6/30/2018,unless terminated earlier as set forth herein.
C. COMPENSATION. Consultant shall be compensated for services performed pursuant
to this Agreement in the amount set forth below and as described in Exhibit"A"which is attached hereto
and incorporated herein by this reference.Compensation shall consist of the following:SEVENTY(70%)
PRECENT OF REVENUE PER STUDENT REGISTERED.The total compensation to the Consultant shall
not exceed TWO THOUSAND DOLLARS($2,000).
D. EXHIBITS. The following attached exhibits hereby are made part of this Agreement:
® EXHIBIT A-Scope of Services
❑ EXHIBIT B-Acknowledgement of Mandated Reporting Requirements,
Receipt of Training,and Receipt of Penal Code Statutes.Required for any
consultant working with minors.
❑ EXHIBIT C-City of Cupertino,Consultant Declaration.Required for any
consultant working with minors.
GENERAL TERMS AND CONDITIONS
1. HOLD HARMLESS:
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.
In addition to the obligations set forth 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.
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2. SUBCONTRACTING:
Consultant has been retained due to their unique skills and Consultant may not substitute
another,assign or transfer any rights or obligations under this Agreement. Unless prior written consent
from City is obtained,only those people whose names are listed this Agreement shall be used in the
performance of this Agreement.
3. ASSIGNMENT:
Consultant may not assign,transfer,or subcontract this Agreement or any portions thereof,
without prior written consent of City.
4. ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS AND,
CONCUSSION PROTOCOLS AND TRAINING;
A. Mandatory Reporting and Fingerprinting,and 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.
B. Concussion Protocol: Consultant shall comply with all requirements of AB2007,including
those outlined in Health and Safety Code Section 124235, et seq.including concussion
evaluation,removal from play,and return to play protocols. (Resources are available at the
Center for Disease Control&Prevention.https://www.cdc.aovlheadsui)/index.html)
1. Consultant shall provide each participant with a concussion information sheet,which
may be in the form as attached as Exhibit C-1. Consultant shall ensure each
participant signs and returns the form as required by Health and Safety Code Section
124235;and
2. Consultant shall require all coaches and administrators to successfully complete the
'. concussion and head injury education at least once either online or in person,before
supervising a participant. Consultant shall offer training,educational materials,or
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both to each consultant administrator on a yearly basis.(Training resources are
available at the Center for Disease Control&Prevention.
httos://www.cdc4ov/headsup/index.html)
5. FINGERPRINT&TUBERCULOSIS(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 attached hereto and incorporated herein by this reference.
6. 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 the paragraphs below. 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 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.
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A. COVERAGE:
Consultant shall maintain the following insurance coverage:
i. Workers'Compensation:Statutory coverage as required by the State of
California.
ii. Liability:Commercial general liability coverage,including sexual abuse and
molestation coverage,in the following minimum limits:
1. Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate-all other
2. 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.
iii. Automotive:Proof of automobile insurance required at the California statutory
minimums.
7. SUBROGATION WAIVER:
Consultant agrees that in the event of loss 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.
8. TERMINATION OF AGREEMENT:
In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in
the manner required hereunder,Consultant shall be deemed in default in the performance of this
Agreement. If Consultant fails to cure the default within the time specified and according to the
requirements set forth in City's written notice of default,and in addition to any other remedy available to
the City by law,the City Manager may terminate the Agreement by giving Consultant written notice
thereof,which shall be effective immediately.The City Manager shall also have the option,at its sole
discretion and without cause,of terminating this Agreement by giving seven(7)calendar days'prior
written notice to Consultant as provided herein. Upon receipt of any notice of termination,Consultant
shall immediately discontinue performance.
9. NON-DISCRIMINATION:
Contractor shall not discriminate against a job applicant,employee,City employee,or a citizen
on the basis of race,color,national origin,ancestry,religion, gender,sexual orientation or other protected
class of such person.
10. INTEREST OF CONSULTANT:
It is understood and agreed that this Agreement is not a contract of employment and,at all times,
Consultant shall be deemed to be an independent Consultant and Consultant is not authorized to bind
the City to any contracts or other obligations in executing this Agreement. Contractor certifies that no
one who has or will have any financial interest under this Agreement is an officer or employee of City.
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. Consultant shall comply with all applicable Federal,State,and local laws and ordinances
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including,but not limited to, unemployment insurance benefits,FICA laws, and the City business license
ordinance.
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11. PERMITS AND LICENSES:
Consultant,at his/her sole expense,shall obtain and maintain during the term of this Agreement,
all appropriate permits,certificates, and licenses including,but not limited to,a City Business License,
that may be required in connection with the performance of services hereunder.
12. REPORTS AND RECORDS:
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 Contractor
pursuant to or in connection with this Agreement,shall be the exclusive property of City. Contractor
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. Contractor may retain a copy of any report furnished to the City pursuant to this
Agreement.
Contractor 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, 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. Contractor shall provide free access to such books and records to the representatives of City
or its designees 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
Contractor receives final payment from City for all services required under this agreement.
13. CHANGES:
No changes or variations of any kind are authorized without the written consent of the City.
14. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,rules and regulations
enacted or issued by City. Contractor shall obtain a Cupertino Business License and further comply with
the City's Minimum Wage Ordinance as set forth in Cupertino Municipal Code Chapter 3.37.
15. AGREEMENT COORDINATOR:
The Agreement Coordinator and representative for CITY shall be:JUSTIN CECIL,RECREATION
COORDINATOR,Recreation&Community Service Department.
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IN WITNESS,WHEREOF,the parties have caused the Agreement to be executed.
WHOLE BRAIN HEALTH INITIATIVE CITY OF CUPERTINO
A Municipal Corpora ion
CU
By: CHARLES HALL �: JUSTIN CECIL
Title: VICE PRESIDENT Title: RECREATION COODINATOR
Date: t t Date:
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RECOMMENDED FOR APPROVAL:
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By: KIM FREY
Title: RECREATION SUP VISOR
APPROVED AS TO FORM:
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RANDOLPH STEVENSON HOM
CITY ATTORNEY
ATTEST:
GRACE SCHMIDT
CITY CLERK
EXPENDITURE DISTRIBUTION:
Account No: 100-62-623-700-702
Amount: $2,000
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EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULTANT will provide BRAIN HEALTH INSTRUCTION AND FACILITATION in,but not
limited to,the following programs: i
BRAIN CLUB:ONE—ONE AND A HALF HOUR CLASS WEEKLY
DANCE TO REMEMBER COMMUNITY EVENT
Location and Time of CONSULTANT Services:
Refer to the Recreation Schedule dated :
JULY/AUGUST 2017 (PUBLISHED 6/26/17);
SEPTEMBER/OCTOBER 2017 (PUBLISHED 8/14/17);
NOVEMBER/DECEMBER 2017 (PUBLISHED 10/23/17);
JANUARY/FEBRUARY 2018 (PUBLISHED 12/18/17);
MARCH/APRIL 2018 (PUBLISHED 2/16/18);
MAY/JUNE 2018 (PUBLISHED 4/2018), for agreed upon dates,times,and class locations.
By the mutual agreement of both parties,class schedule may change.
Eligible Participant Minimum and Maximums for CONSULTANT Services:
BRAIN CLUB DANCE TO REMEMBER
Minimum: 5 Minimum: 30
Maximum: 24 Maximum: 100
If less than the required minimum number of participants enroll in and pay for a particular class as
identified in the schedule before the class is scheduled to start,the City may cancel the particular class
and/or terminate this Agreement without additional notice or payment to Consultant.
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.
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 complete the City's
Waiver of Liability form prior to taking part in the program. Consultants 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 Incident Report in the form approved by the City. The Incident Report must be submitted to
the City within 24 hours of the injury occurring.
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EVANSTON INSURANCE COMPANY
CERTIFICATE NO.: 6363.12999038139147
CERTIFICATE OF INSURANCE
SPECIAL EVENT LIABILITY PROGRAM
PRODUCER PUBLIC ENTITY(ADDITIONAL INSURED)
Alliant Insurance Services,Inc.in conjunction with City of Cupertino
Apex Insurance Services
P.O.Box 6450
Newport Beach,CA 92658
License No:OC 36861
NAMED INSURED(EVENT HOLDER): EVENT INFORMATION:
Whole Brain Health Initiative TYPE: Dance(Various)
LOCATION: Cupertino Senior Center
*Liquor Liability Yes No
**Liquor Liability after 12 am ends before 2 am ❑
This is to certify that the insurance policy listed below has been issued to the above insured named(event holder)for the policy
period indicated. The insurance described herein is subject to all the terms,exclusions and conditions of such policy(ies)unless
amended as described in Special Conditions.
INSURANCE CARRIER:Evanston Insurance Company
MASTER POLICY NUMBER: SEP41023
MASTER POLICY DATES: EFFECTIVE: JANUARY 1,2017 EXPIRATION:JANUARY 1,2018
COMMERCIAL GENERAL LIABILITY General OCCURRENCE FORM DEDUCTIBLE: NONE
Aggregate Limit $2,000,000
Products&Completed Operations 1,000,000 SPECIAL CONDITIONS:
Personal&Advertising Injury 1,000,000 The following endorsements attached to
Each Occurrence Limit 1,000,000 the Master Policy do not apply to this
Damage To Premises Rented To You(Any One Premises) 100,000 Certificate Of Insurance:
Medical Payments(Any One Person) 5,000 MEGL1643
Liquor Liability (If purchased) 1,000,000
Optional Limits Purchased
❑ $1,000,00053,000,000
❑ $2,000,00052,000,000
Property Damage(If purchased)
No Property Damage Coverage
The limits of insurance apply separately to each event insured by this policy as if a separate policy of insurance has been issued for that event.
OTHER ADDITIONAL INSUREDS I
City of Cupertino, It's City Council, Boards and 1
Commissions, Officers, Employees, and
Volunteers
CANCELLATION: Should the above described policy be cancelled before the expiration date thereof,notice will be delivered in accordance with the policy
provisions.
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AUTHORIZED REPRESENTATIVE:
DATE ISSUED: 05/25/2017