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17-001 Sa-Ad Kongboon NO. �901 S FY 17-18 I AGREEMENT BETWEEN THE CITY OF CUPERTINO AND SA-AD KONGBOON FOR ADULT FITNESS INSTRUCTION THIS AGREEMENT,for reference dated FRIDAY,JUNE 2,2017,is by and between CITY OF CUPERTINO,a municipal corporation(hereinafter referred to as"City"),and SA-AD KONGBOON,a California SOLE PROPRIETORSHIP,whose address is (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:ADULT FITNESS INSTRUCTION.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: 65%of resident fees and drop-in passes.The total compensation to the Consultant shall not exceed 5,000.00. 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. 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 I FY 2017/2018 Short Form Agreement less than$5,000 1 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, t 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://ivww.cdc.izov/headsup/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. https:/h4,N",v.cdc.20vlheadsup/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' Comuensation:Statutory coverage as required by the State of California. FY 2017/2018 Short Form Agreement less than$5,000 2 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 including,but not limited to,unemployment insurance benefits,FICA laws, and the City business license ordinance. I I I FY 2017/2018 Short Form Agreement less than$5,000 3 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 i are reserved to City. Contractor may retain a copy of any report furnished to the City pursuant to this i 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: Karen Levy,Recreation Coordinator,Recreation&Community Service Department. FY 2017/2018 Short Form Agreement less than$5,000 4 IN WITNESS,WHEREOF,the parties have caused the Agreement to be executed. SA-AD KONGBOON CITY OF CUP TINO A Munic' al rporation By: SA-AD KONGBOON By: KAREN LEVY Title: FITNESS INSTRUCTOOR Title: RECREAT10N COORDINATOR Date: 6/31/20 f/ Date: 170 It RECOMMENDED FOR APPROVAL: / By: KIM CALAME Title: RECREATION SUPERVISOR APPROVED AS TO FORM: RANDOLPH STEVENSON HOM CITY ATTORNEY ATTEST: GRACE SCHMIDT j — -30—t? CITY CLERK (5� EXPENDITURE DISTRIBUTION: Account No: 580-63-620-700-702 Amount: 5,000.00 I i FY 2017/2018 Short Form Agreement less than$5,000 5 EXHIBIT A CONSULTANT SERVICES TO BE PERFORMED The CONSULTANT will provide ADULT FITNESS INSTRUCTION in,but not limited to,the following programs: VINYASA YOGA Location and Time of CONSULTANT Services: Refer to the Recreation Schedule dated SUMMER 17-SPRING 18 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: 5 Maximum: 20 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. FY 2017/2018 Short Form Agreement less than$5,000 6 ACOR" CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD/YYYY) 05/01/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFI'ATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endor��ment(s). PRODUCER CONNT CT NAME: Mass Merchandising Underwriting K&K Insurance Group,Inc. (-MAIPHHc No,Ext): 1-800-506-4856 FA No): 1-260-459-5590 1712 Magnavox Way EL info fitnessinsurance kk.com Fort Wayne IN 46804 ADDRESS: PRODUCER CUSTOMER ID: INSURER(S)AFFORDING COVERAGE I NAIC# INSURED I INSURER A: Nationwide Mutual Insurance Company I 23787 Sa-ad"none"Kongboon I INSURER B: A Member of the Sports, Leisure&Entertainment RPG INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: W00830675 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE 'ADDU SUBRPOLICY NUMBER POLICY EFF POLICY EXP LIMITS _LTR (NSD WVD (MM/DDIYYYY) (MM/DD/YYYY) A X COMMERCIAL GENERAL LIABILITY X 6BRP00000005861300 06/18/2016 06/18/2018 EACH OCCURRENCE $500,000 CLAIMS- OCCUR 12:01 AM EDT 12:01 AM DAMAGE TO RENTED MADE PREMISES(Ea Occurrence) $300,000 Fx MED EXP(Any one person) I $5,000 PERSONAL&ADV INJURY $500,000 GENERAL AGGREGATE I per year$5,000,000 GEMLAGGREGATE LIMIT APPLIES PER: (PRODUCTS-COMPIOPAGG I per year$500,000 POLICY -1 El LOC I PROFESSIONAL LIABILITY I $500,000 JECT OTHER: I LEGAL LIAB TO PARTICIPANTS( $500,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) ANY AUTO I BODILY INJURY(Per person) OWNED AUTOS SCHEDULED ONLY AUTOS BODILY INJURY Per accident I PROPERTY DAMAGE ) HIRED NON-OWNED - AUTOS ONLY AUTOS ONLY I(Per accident) NOT PROVIDED WHILE IN HAWAII UMBRELLA LIAB OCCUR I EACH OCCURRENCE EXCESS LIAB CLAIMS-MADE I AGGREGATE DEDRETENTION WO ZKERS 0 PENSATION AND PER EMPLOYERS'LIABILITY N/A STATUTEu OTHER ANY PROPRIETOR/PARTNER/ YIN PELEACH ACCIDENT EXECUTIVE OFFICER/MEMBER EXCLUDED?(Mandatory in NH) I E.L.DISEASE—EA EMPLOYEE If yes,describe under DESCRIPTION I E.L DISEASE—POLICY LIMIT OF OPERATIONS below MEDICAL PAYMENTS FOR PARTICIPANTS I PRIMARY MEDICAL EXCESS MEDICAL DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Certified Instructor of:Exercise,Yoga The certificate holder is added as an additional insured,but only for liability caused,in whole or in part,by the acts or omissions of the named insured. CERTIFICATE HOLDER CANCELLATION City of Cupertino,its City Council,boards and commissions,officers, SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE employees and volun THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 10300 Torre Avenue ACCORDANCE WITH THE POLICY PROVISIONS. Cupertino,CA 95014 AUTHORIZED REPRESENTATIVE (Owner/Lessor of Premises) Coverage is only extended to U.S.events and activities. /tea "`NOTICE TO TEXAS INSUREDS:The Insurer for the purchasing group may not be subject to all the insurance laws and regulations of the State of Texas ACORD 25(2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD