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2024 AgreementCity of Gilroy Agreement/Contract Tracking Today’s Date: April 16, 2024 Your Name: Adam Henig Contract Type: Other (Non-Standard contracts must be reviewed by the City Administrator prior to initiating) Phone Number: 408-846-0577 Contract Effective Date: (Date contract goes into effect) 4/16/2024 Contract Expiration Date: 12/31/2027 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) CS Now Inc. (dba Create and Learn, Inc.) Contract Subject: (no more than 100 characters) Recreation Independent Contract Instructor Contract Amount: (Total Amount of contract. If no amount, leave blank) By submitting this form, I confirm this information is complete: Date of Contract Contractor/Consultant name and complete address Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid) Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached Taxpayer ID or Social Security # and Contractors License # if applicable Contractor/Consultant signer’s name and title City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 1 4821-9476-5219v1 CCHU\04706083 CITY OF GILROY RECREATION DIVISION AGREEMENT FOR CONTRACT PROGRAMS INSTRUCTION 1. Parties. The parties to this Agreement are: 1.1 Instructor CS Now Inc. (dba Create and Learn, Inc.) an independent contractor who will provide services to the City as a skilled instructor (“Instructor.”) 1.2 City of Gilroy, a municipal corporation (“City.”) 2. Instructor Services. 2.1 Instruction: Instructor will conduct the program(s) (“Program”) as described below and in the activity guide on behalf of the City’s Recreation Division in accordance with all ordinances, policies, and regulations of the City. 2.2 Program Information: Instructor will submit program information prior to the established deadline for publication in the seasonal Recreation Guide. Failure to submit information in a timely manner may result in either cancellation of the class and/or omission in the Guide. 2.3 Attendance: Instructor will be present and prepared to teach at each scheduled class. Absences must be communicated to a designated Recreation Division staff representative (“Designated Representative”) and must be preceded by not less than 48 hours advance notice. In the event of an absence, Instructor shall try to offer a make-up class (es) at a convenient time. All services are to be provided by Instructor; substitute instructors shall not be utilized without advance written permission to the Designated Representative. If the instructor is unable to make up a class(es) and a refund is offered, the instructor will be responsible for covering the refund payment processing fees as determined by the City of Gilroy. 2.4 Fingerprinting: As a condition of this Agreement and prior to teaching any classes, Instructor shall submit to fingerprinting and a California Division of Justice (DOJ) criminal background check that confirms that Instructor has no criminal convictions. If Instructor has employees, prior to the first day of class, Instructor will provide proof to City that said employees have also been fingerprinted and have passed a DOJ background check. The program offers computer science virtual classes for youth K-9th grade that includes coding and technology classes. DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 2 4821-9476-5219v1 CCHU\04706083 2.5 Customer Service: Instructor will conduct his or her Program in a professional, courteous, helpful, welcoming and supportive manner. 2.6 Participant Information: Instructor is not permitted to use any participant information, rosters, mailing lists, etc. for any purpose other than authorized City use (for example, class communication and notification of upcoming City classes). 2.7 Communication: Instructor will maintain direct communication with the Designated Representative regarding program information such as class cancellations, inquiries, changes, accidents, incidents and/or any concerns patrons may express. If the Instructor must cancel class(es), he or she is responsible for notifying all participants by phone, email, note at site, and/or in-person. This is not the responsibility of the Designated Representative. 2.8 Facility/Classroom: Instructor is responsible for securing his or her assigned facility and/or classroom. (a) Indoors: If inside a city facility, all doors must be closed and secured after each class. Instructor is responsible for set-up and clean-up. No storage of instructional materials is allowed, unless approved by the Designated Representative. City is not responsible for any lost or stolen items. Keys: If Instructor is provided keys to a city facility, it is their responsibility for reporting any lost or stolen key(s) within 24 hours to the Designated Representative. A $50 charge for each key lost or stolen will be deducted from Instructor’s next compensation payment. (b) Outdoors: If outside at a city park or other facility, Instructor is responsible, prior to the start of each class/program, for inspecting the grounds to ensure it is safe to use. Any hazards identified needs to be rectified before the start of class. If hazard is significant enough that safety cannot be assured, Instructor shall either cancel the class or hold class at an alternate facility approved by the City and determined by Instructor to be safe. 2.9 Insurance: All instructors are required to provide their own liability insurance of $1,000,000 for each occurrence and $1,000,000 annual aggregate covering themselves and naming the City of Gilroy as an additional insured. For activities with greater risk, the City may require a higher level of coverage. If the Instructor has employees, Instructor will provide City proof of Worker’s Compensation insurance, as required by California Labor Code § 3700 et seq. Insurance coverage may vary depending on the program offered. 2.10 Certificate of Occupancy Permit: All contract instructors that operate their own facilities are required to file a copy of their Certificate of Occupancy Permit with the Designated Representative. 2.11 Business License: All contract instructors must obtain and maintain a City of Gilroy Business License. 3. Instructor Warranties. Instructor warrants that: 3.1 He/she is trained, qualified, and experienced to instruct the class in a safe and professional manner. DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 3 4821-9476-5219v1 CCHU\04706083 3.2 He/she has the requisite qualifications, certifications, experience and/or other requirements, which are conditions precedent of this Agreement, including but not limited to: CPR & First Aid Certified. Classes are taught by highly qualified, experienced instructors who make the classes interactive and fun. Their backgrounds range from certified classroom instructors to tech professionals. 3.3 He/she has never been convicted of any offense specified in Penal Code section 11105.3(c). 4. Instructor Acknowledgements. Instructor acknowledges, understands and agrees to the following: 4.1 Independent Contractor: The Instructor will not be an employee of the City but will solely be an independent contractor acting under the terms and conditions specified herein. As an independent contractor, the Instructor will be solely responsible for payment of federal and state taxes, will not be an employee of City for worker’s compensation or any other purposes, and will not have unemployment insurance benefits, social security coverage or other employee benefits. Instructor may at instructor’s own expense, employ any person Instructor deems necessary to conduct the Program, subject to the limitations on assignment in section 8, below. Instructor agrees that neither Instructor nor any person employed by Instructor will be in any way an employee of the City as the term is defined in the California Labor Code. 4.2 Instructor Performance: Instructor will have the sole authority to control the means of performing the instructional services required by this Agreement. 4.3 Compliance with Laws: Instructor will comply with all applicable Federal, State, and local laws and regulations in fulfilling his/her obligations under this Agreement. Without limiting the generality of the foregoing, Instructor will comply with the provisions of California Government Code Section 12940, and subject to the exceptions specified in such section, refrain from unlawful, discriminatory employment practices on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any employee. 4.4 Concussion and Other Head Injury; Sudden Cardiac Arrest. Instructor hereby certifies that Instructor is aware of the signs of, and appropriate responses to, concussion and other head injury. Instructor further acknowledges that information and training regarding concussion and other head injuries are available at: https://www.cdc.gov/headsup/index.html. Instructor shall institute appropriate protocols whenever a course participant is suspected of sustaining concussion or other head injury in an athletic activity. At a minimum, Instructor agrees to implement the following protocols: a. An athlete who is suspected of sustaining a concussion or other head injury in an athletic activity, or who has passed out or fainted, shall immediately be removed from the athletic activity for the remainder of the day, and shall not be permitted to return to any athletic activity until the athlete is evaluated by a licensed healthcare provider. b. The athlete shall not be permitted to return to athletic activity until the athlete receives written clearance to return to athletic activity from a licensed healthcare provider. c. If the licensed healthcare provider determines that the athlete sustained a concussion or other head injury, the athlete shall also complete a graduated return-to-play protocol of DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 4 4821-9476-5219v1 CCHU\04706083 no less than seven days in duration as recommended by, and under the supervision of, a licensed healthcare provider. d. If the licensed healthcare provider suspects that the athlete has a cardiac condition that puts the athlete at risk for sudden cardiac arrest or other heart-related issues, the athlete shall remain under the care of the licensed healthcare provider to pursue follow-up testing until the athlete is cleared to play. e. If an athlete who is 17 years of age or younger has been removed from athletic activity due to a suspected concussion or due to fainting or a suspected cardiac condition, Instructor shall contact a parent or guardian of the athlete of the time and date of the injury, the symptoms observed, and any treatment provided to that athlete for the injury. f. If any athlete is suspected of sustaining a concussion or other head injury or passes out or faints during an athletic activity, Instructor shall contact City’s Risk Manager as soon as reasonably possible by phone and shall provide a detailed written report within 24 hours describing the incident, including the identity of any witnesses and the steps taken to address the incident. 4.5 Indemnification: Instructor, on behalf of itself and its officers, employees, assistants, agents and successors, hereby agrees to release, hold harmless, defend and indemnify the City and its officers, employees, agents, and successors from any liability, loss, damage, expense, claim, cause of action or cost, including attorney’s fees, for injury to persons or property, including death of any person, which relate to the services provided by Instructor as stated herein. 4.6 Emergency Circumstances: The contractor further acknowledges that all City-owned parks and facilities are subject to emergency use by the City, the State of California, and/or another governmental agency (e.g., FEMA). Considering an emergency (such as flooding, earthquake, wildfire, terrorist attack, and/or similar incidents), contractors may experience disruption to their normal programming, and will be expected to cooperate in rescheduling and/or relocating classes as necessary to accommodate emergency operations without additional compensation. If a suitable location cannot be determined, class(es) may be cancelled, and instructor will not be compensated for loss of income. This decision will be made at the discretion of the City. If the class can be offered, but the instructor chooses to cancel the class(es), the instructor will be responsible for covering the refund payment processing fees as determined by the City of Gilroy. 5. City Duties. 5.1 Publicity: City will publicize Program in the seasonal recreation guide. The City shall inform the Instructor of the deadline for submission of class information. Other forms of publicity such as a program flyer(s) will need to be approved by the Designated Representative before distribution. 5.2 Program Fee(s), Classes Offered and Size: With guidance from the Division staff representative, Instructor will determine Program fee(s). Based on facility availability and DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 5 4821-9476-5219v1 CCHU\04706083 community interest, the Designated Representative will assist the Instructor to determine the number of classes that maybe offered in the guide. 5.3 Program Registration Dates and Participants: The Recreation Division will determine the registration dates and deadlines for classes unless otherwise specified. Programs featured in the Recreation Guide are only available to participants who enroll through the Recreation Division. Any exception to this must have City approval prior to advertisement of Program. 5.4 Registration Fees: City will collect all registration fees. Instructors will not collect payments or allow drop-in registration unless they have received prior permission from the Designated Representative. 5.5 Compensation: City will compensate Instructor for services to be provided hereunder as follows: Instructor will be paid for services rendered under this agreement at Sixty percent (60%) of the registration fees received for the Program conducted by Instructor. Instructor payment shall not include the additional non-resident fee. The remaining Forty percent (40%) of fees for the Program will be retained by the City to offset program costs, including administration, registration, facility, rental, utilities, building maintenance, publicity, activity guide, postage, insurance, and keys. Instructor will be paid in one lump sum, unless otherwise determined by the Designated Representative. Payment amount will be determined by the number of participants registered for your program. (a) If the class does not reach the Instructor’s minimum number of participants to operate the program, the City can request to renegotiate the compensation rate in order for the class to continue and avoid being canceled. (b) Virtual Programming: In addition to offering in-person services, Create and Learn, Inc. will also offer the option to provide virtual programming for computer science classes. Create and Learn, Inc. will be paid for services rendered under this agreement at seventy-five percent (75%) of the registration fees received for the virtual class. The remaining twenty-five percent (25%) of fees will be retained by the City. 6. Termination/Contract Renewal. City may terminate this Agreement immediately upon any breach of performance of this Agreement by Instructor or his or her assistants or any violation of State, Federal or local law, or may cancel this Agreement at any time with or without cause. Contractor may terminate this Agreement without cause upon 20 days written notice to the other party. City reserves the right not to renew an Instructor’s contract for any reason. Grounds for immediate termination of a contract include, but are not limited to: verbal and/or physical abuse, actions which may cause injury to another, and/or being under the influence of drugs or alcohol while teaching. 7. Negligent Or Knowing Misrepresentation. If any of the foregoing is found to be negligently or knowingly misrepresented by Instructor, this Agreement, at the option of City, shall be null and void and of no force and effect, and Instructor shall be liable to City for any damages arising therefrom. 8. Assignment. This Agreement may not be assigned or delegated by either party without prior written consent of the other party, provided further that the Assignee or Delegate agrees to be bound in writing to all of the terms of this Agreement. DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 6 4821-9476-5219v1 CCHU\04706083 9. Attorneys’ Fees. In the event of controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover reasonable attorney’s fees in addition to any other relief to which that party may be entitled. 10. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law’s provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to all disputes arising hereunder shall be in State and Federal courts located in Santa Clara County, California. 11. No Third Party Beneficiary. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties will have any claim or right of action hereunder for any cause whatsoever. 12. Survival Clause. Instructor’s obligation to release, hold harmless, defend and indemnify the City, and City’s rights and remedies, as provided in this Agreement, survive the expiration o r any termination of this Agreement, including without limitation, City’s rights and remedies under section 7 and 9, above. 13. Waiver. Waiver by City of any breach, violation of, or failure to perform any covenant, term, condition or provision of this Agreement, or of the provisions of any applicable ordinance or law, by Instructor, or any City delay in enforcement of the same, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law, by Instructor. 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties relative to the subject matter thereof. Statements or representations of any kind not embodied herein shall be of no force and effect. This Agreement may be modified only in writing. 15. Agreement Commencement/End. This Agreement will commence upon the date the parties execute this Agreement (if signed on different dates, the later date shall govern.) This Agreement will expire on the ending date of the Program, _December 31, 2027 _, unless terminated earlier as provided herein. Executed this April 16, 2024 DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 706343.2 7 4821-9476-5219v1 CCHU\04706083 Contractor Name: Zhimei Jiang (Jessie), Founder/CEO Contractor’s Address: 12680 La Cresta Dr. Los Altos Hills, CA 94022-2511 Federal Tax ID/Social Security No. 93-2860123 Business Telephone Number: (925) 997-6885 Website: _ www.create-learn.us _______ E-mail Address: carlinga@createandlearn.us ___ CITY OF GILROY CONTRACTOR LeeAnn McPhillips, Risk Manager Zhimei Jiang, Contractor Jimmy Forbis, City Administrator Date ATTEST: Beth Minor, City Clerk Date DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 5/2/2024 5/2/2024 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 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 endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 4/5/2024 30104 CS Now Inc. 12680 La Cresta Dr Los Altos Hills, CA 94022--2511 00914 A 1,000,000 X 76SBWBD9VNS 2/20/2024 2/20/2025 1,000,000 10,000 1,000,000 2,000,000 2,000,000 B 76WEGBC8XH4 2/1/2024 2/1/2025 1,000,000 Y 1,000,000 1,000,000 City of Gilroy Recreation Department Contract Classes is named as additional Insured in regard to the general liability policy as their interest may appear by written contract City of Gilroy Recreation Department Contract Classes 7351 Rosanna St Gilroy, CA 95020 CSNOWIN-01 EHUTCHINGS AP Intego Insurance Group, LLC 1601 Trapelo Rd Suite 280 Waltham, MA 02451 support@apintego.com Hartford Underwriters Insurance Company Hartford Fire & Its P&C Affiliates X X X X DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7 DocuSign Envelope ID: 55EF13F7-70CC-483F-8501-7D9203DF8CE7