17-001 Ruby Chen i
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FY 17-18
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
Ruby Chen
FOR Fitness Instructor
THIS AGREEMENT,for reference dated Thursday,April 27,2017,is by and between CITY OF CUPERTINO,a
municipal corporation(hereinafter referred to as"City"),and Ruby Chen ,a STATE BUSINESS REGISTERED IN CA
SOLE PROPRIETORSHIP,whose address is (hereinafter referred to as
"Consultant"),and is made with reference to th following:
A. SCOPE OF SERVICES. Contractor shall provide or furnish the following specified services and/or
materials:Fitness Instructor.Services are further described in Exhibit"A".
B. TERM. The term of this Agreement shall commence on 5/4/2017,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:$35 per 60 minute class.The total compensation to
the Consultant shall not exceed 4,500.00.
D. EXHIBITS. The following attached exhibits hereby are made part of this Agreement:
N EXHIBIT A-Scope of Services
N EXHIBIT B-Acknowledgement of Mandated Reporting Requirements,Receipt of
Training,and Receipt of Penal Code Statutes.Required for any consultant working with
minors.
N 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.
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 REOUIREMENTS 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.
htt-os://www.cdc.gov/headsur)/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 both to each consultant administrator on a
yearly basis. (Training resources are available at the Center for Disease Control&Prevention.
httDs://www.cdc.gov/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.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
i. Workers'Comvensation:Statutory coverage as required by the State of California.
ii. Liabilitv: 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
stibrogation 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 including,but not limited to,unemployment insurance benefits,FICA laws,and the City business license
ordinance.
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:Colleen Ferris,Recreation Coordinator,
Recreation&Community Service Department.
IN WITNESS,WHEREOF,the parties have caused the Agreement to be executed.
i
Ruby Chen CITY OF CUPERTINO
A Municipal Corporation
By: Ruby hen By: COLLEEN FERRIS
Title: Fitne Instructor Title: RECREATION COORDINATOR
Date: �� Date:
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RECOMMENDED FOR APPROVAL:
By: CHRISTINE HANEL
Title: ASSISTANT DIRECTOR
APPROVED AS TO FORM:
&V
(c wRANDOLPH STEVENSON HOM
vv CITY ATTORNEY
ATTEST:
A_ 6WS,,1--eAAAJ-f-
GRACE SCHMIDT
CITY CLERK
EXPENDITURE DISTRIBUTION:
Account No: <7 C ~ (p 3 7CO 70
Amount: $4,500.00
EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULTANT will provide Fitness Instructor in,but not limited to, the following programs:
VIVASIA
Location and Time of CONSULTANT Services:
Refer to the Cupertino Sports Center monthly fitness schedule 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:
Minimum: 15
Maximum: 50
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.
EXHIBIT B
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 Ruby Chen 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 Ruby Chen ,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 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)
EXHIBIT C
CITY OF CUPERTINO CONSULTANT DECLARATION
The undersigned does hereby certify that:
1. I am a representative of Ruby Chen;that I am familiar with the facts herein and am authorized and qualified to
execute this declaration.
2. I declare that Ruby Chen 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. I declare that each coach and administrator shall be required to successfully complete concussion and head injury
education at least once,either online or in person,before supervising a participant,as required by California
Health and Safety Code Section 124235,et seq.
4. On a yearly basis, all participants shall be required to sign and return a concussion and head injury information
sheet in compliance with California Health and Safety Code Section 124235,which may be in the form attached as
C-1.
5. 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.
6. 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.
7. 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.
List of all Consultant Employees working for the City of Cupertino(if no Employees,identify"self'):
Self
8. The Consultant will notify the City of Cupertino in writing of any new employees and will be added to the above
list prior to beginning work at the City of Cupertino.
I declare under penalty of perjury that the foregoing is true and correct.
Ruby Chen
By: Ruby
Title: Fitne u
C � rl
ctor
Date:
� I 1
I
• 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.
Ruby Chen
By: Ru hen
Title: Fitn s Instructor
Date:
i
EVANSTON INSURANCE COMPANY
CERTIFICATE NO.: 6361x2917822386875
CERTIFICATE OF INSURANCE
SPECIAL EVENT LIABILITY PROGRAM
1 PRODUCER PUBLIC ENTITY(ADDITIONAL INSURED)
Alliant Insurance Services,Inc. in conjunction with City of Cupertino its City Council, Boards and
Apex Insurance Services
P.O.Box 6450 Commissions, Officers, Employees and Volunteer
Newport Beach,CA 92658
License No:OC 36861
NAMED INSURED(EVENT HOLDER): EVENT INFORMATION:
Ruby Chen TYPE: Dance(Various)
LOCATION: Quinlan Community Center 10185 N.Stelling Road.Cupertino,Ca 95014
*Liquor Liability Yes o Noe)
**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: January01,2017 EXPIRATION: January 01,2018
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
Liquor Liability (If purchased) 1,000,000
Optional Limits Purchased
❑ $1,000,000/$3,000,000
❑ $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
CANCELLATION: Should the above described policy be cancelled before the expiration date thereof,notice will be delivered in accordance with the policy
provisions. �}
AUTHORIZED REPRESENTATIVE:
DATE ISSUED: 01/06/2017