A - Bay Aerials Gymnastics Agreement, First, Second, and Third Amendments

RecreationServicesAgreement/ Rev. June2021
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No. ___________
FY2022 - 2023

RECREATION SERVICES AGREEMENT

1. Parties. This contract is made by and between the City of Cupertino, a municipal corporation (“City”), and RED LINE GYMNASTICSLLC, DBA: BAY AERIALS GYMNASTICS Contractor”), a Limited Liability Companyfor GymnasticsClassesandProgramsandis effectiveon thelastdatesignedbelow (“EffectiveDate”).

2. Services. Contractor agreesto provide the Servicesincluded in the Scopeof Work and in accordancewith theScheduleof Performanceattachedin Exhibit A.

3. Term. This contract begins on the Effective Date and ends on 06/30/2023 (“Contract Time”), unless extended or terminated asprovided herein. Time is of the essenceand Contractor must have sufficient time, resources, and qualified staff to deliver the Servicesas required. Contractor must promptly notify City of any actualor potential delaysto afford the Partiesadequateopportunity to addressor mitigate suchdelays. TheCity’s appropriatedepartmentheador the City Managermay extendthe ContractTimethrough a written amendmentto this Agreement, provided suchextension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy.

4. Compensation. City will pay Contractor for satisfactory performance of the Servicesan amount that will be based upon actual costs but that will be capped so as not to exceed $75,000.00 Contract Price”), basedupon the Scopeof Services, budget, performance schedule, and ratesincluded in Exhibit A. The maximum compensation includes all costs, expenses, and reimbursements and will remainin placeevenif Contractor’s actualcostsexceedthe cappedamount. Contractormust submit invoicesand theinformation requiredin Exhibit A in order to receivepayment. City will compensate Contractorwithin thirty (30) daysafterapprovalof written invoices.

Invoices are subject to review and audit by City during regular businesshours upon 24 hours’ notice. Contractor must maintain complete and accurate records of payrolls, expenditures, disbursementsand other cost items chargedto City or establishingthe basisfor an invoice, for a minimum of four (4) yearsfrom thedateof thefinal payment.

5. Independent Contractor.

5.1 Contractor is an independent Contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Servicesand for the personshired to work under this Agreement. No civil servicestatus or other right of employmentwill be acquired by virtue of Contractor’s performanceof the Services. Contractoris not entitled to City’s health benefits, worker’scompensationor anyotherbenefit. Contractormusthavetheskills RecreationServicesAgreement/ Rev. June2021
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and qualifications to perform the Servicesin a competent and professional manner.

Contractor will supply all tools, materials, and equipment required to perform the Servicesunder this Contract. Contractoris responsiblefor obtaining permits and licensesrequiredby law and must obtaina City businesslicense, if requiredby the Cupertino Municipal Code.

5.2 Contractor is solely responsible for the payment of employment taxes incurred under this Agreementand any similar federalor statetaxes. Contractorand any of its employees, agents, and subcontractorsshall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employeebenefitsof anykind. Contractorshallbesolelyliablefor andobligated to pay directly all applicabletaxes, fees, contributions, or chargesapplicableto Contractor’s businessincluding, but not limited to, federaland stateincometaxes.

City shall have no obligation whatsoever to pay or withhold any taxesor benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System PERS), the Internal RevenueService or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employeefor any purpose, then Contractor agreesto a reduction in amounts payable under this Agreement, or to promptly remit to City any payments due by the City as a result of such determination, so that the City’s total expensesunder this Agreement are not greater than they would have beenhad thedeterminationnot beenmade.

6. Proprietary/ Confidential Information. To the extent Contractor may have accessto private or confidential information owned or controlled by the City, Contractor agreesto treat it as confidentialand useit solelyto perform this Agreement. Contractormust exercisethe samestandard of careto protectCity information asa reasonablyprudent Contractorwould useto protectits own proprietarydata.

7. Ownership of Materials. To the extent Contractor prepares written material, drawings, or datain connectionwith this contract, City will havethe property rights to thosematerialsand all copyrights, if any, to suchwork product will, to theextentrequestedby City, constituteCity property upon completionof thework to beperformedhereunderor upon terminationof this Agreement.

8. Records. Contractor must maintain complete, accurate, and detailed accounting records relating to its performance in accordancewith generally acceptedaccounting principles and procedures. Therecordsmust include detailedinformation aboutContractor’s services, benchmarks, deliverables, and costs/fees, and must be made reasonablyavailable to City. The records and supporting documents must be kept separatefrom other files and maintained for four ( 4) years from the date of City’s final payment.

RecreationServicesAgreement/ Rev. June2021
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9. Assignment. This Contract is not assignable. Contractor may not substitute another or transfer any rights or obligations under this Contract without prior written approval of City. Only those personswhosenamesareincludedin Exhibit A mayperformtheServices.

10. Publicity and Signs. Any publicity generated by Contractor related to this contract or the Servicesduring the Contract Time and for one (1) year thereafter must referenceCity contributions.

The words “City of Cupertino” shall be displayedin all piecesof publicity, including flyers, press releases, posters, brochures, public serviceannouncements, interviews, and newspaperarticles. No signsmaybeposted, exhibited, or displayedonor aboutCity property, exceptsignagerequiredby law or under this Agreement, without prior written approval from City.

11. Indemnification. To the fullest extentallowed by law and exceptfor lossescausedby thesoleandactivenegligenceor willful misconductof City personnel, Contractoragreesto indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and contractors (collectively, “ Indemnitees”), through legal counsel acceptableto City, from and against any liability for damages, claims, actions, causesof action, demands, charges, losses, costs, andexpenses (includingattorneyfees, legalcosts, andexpensesrelated to litigation, arbitrations, administrative, and regulatoryproceedings), of everynature, arisingout of or in anyway relatedtoContractor’sor Contractor’sagentsperformanceof thiscontractor theServices.

This includes but is not limited to Liability resulting in personal injury, death, property damage, or economic losses. Contractor must pay any costsCity may incur in enforcing this provision and must accepta tender of defenseupon receiving notice from City. Contractor’s payments may bededucted or offsetto coveranymoneytheCity lost dueto aclaimor counterclaimarisingout of this Contract. This Section11shallsurviveterminationof theAgreement.

12. Insurance. Contractor shall comply with the insurance requirements in Exhibit B. City will not executethe Agreement until it hasreceived and approved satisfactory certificates of insurance and endorsementsevidencingthe type, amount, and datesof coverage. Alternatively, City in its sole discretion, maypurchaseinsuranceanddeductthecostsfrom paymentsto Contractor, or terminatethe Agreement.

13. Compliance with Laws and Other City Requirements.

Requirements for all Contracts. This contract is subject to local, state and federal laws and regulations prohibiting discrimination, including Title VII of the Civil Rights Act of 1964, the California Fair Employment PracticesAct, the Americans with Disabilities Act of 1990, and other laws that pertain to fair employment and anti-discrimination practices. Contractor agreesto provide records and documentationto theCity on requestnecessaryto monitor compliancewith this provision.

Contractor must comply with labor laws pertaining to prevailing wages, working hours, overtime, payroll records, and other requirements imposed by the Department of Industrial Relations.

If Contractor doesnot have employees, it must sign the Affidavit of No Employees, attached asExhibit C. Contractor is responsible for verifying employment eligibility of employees pursuant to the Immigration Reformand Control Act of 1986. Contractormust comply with conflict of interestlaws and regulationsapplicableto this Agreementand avoid conflicts of interest. Contractor may be requiredto file a conflict of interestform for engagingin governmentaldecisionsor servingin a staff RecreationServicesAgreement/ Rev. June2021
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capacity, and is hereby advised to review the requirements of California Political Reform Act and the California Code of Regulations. Servicesmay only be performed by persons who are not employed by City and who do not havea contractualrelationshipwith City other than this contract. Contractor agreesto abide by City policies and administrative rules prohibiting gifts to City officials and employees.

Additional Requirements for Services Provided to Minors. Contractor and its employees who provide servicesunderthis Agreementmustcomplywith theseadditionalrequirements:

A. Undergo fingerprints and a criminal background and verify all employees providing servicesunderthis contracthavemetthis requirement.

B. CompleteaTuberculosisscreeningtestasrequiredby law andassetforth in Exhibit D.

C. Complywith theMandatoryReportingunderCaliforniaPenalCode11164-11174.3andwith the protocols, reporting, and training required under California Health and Safety Code Section124235, AB 2007, and other laws pertaining to concussionevaluation, removal from play, and return to play protocols. ( Refer to Center for Disease Control & Prevention, https://www.cdc.gov/headsup/index.html).

D. Submit required forms and acknowledgments included in Exhibit D, and ensure its each participantis provided with a concussioninformationsheet, signsandreturnstheformsto the City asrequired by Health and SafetyCode Section124235.

Require coachesand administrators to successfullycomplete the concussionand head injury education at least once either online or in person, before supervising a participant.

Contractor shall offer training, educational materials, or both to each Contractor administratoron a yearlybasis. (Training resourcesareavailableat the Centerfor Disease Control & Prevention (link citedabove).

E. If providing instruction, Contractor must acknowledge and comply with all requirements set forth in the Parks & RecreationServicesInstructor Manual.

This contract requires servicesfor children.

14. Coordination of Services. The Parties designate the following persons as Services Coordinatorswith theresponsibilityto overseethedeliveryof Servicesin accordancewith thetermsof this Agreement. Contractor’sdesignationandanysubstitutionaresubjectto City approval.

For City:

Name: Karen Levy
Position: RecreationCoordinator
Contact: [email protected]
For Contractor:

Name: JohnAquirre
Position: Owner
Contact: [email protected]

15. Abandonment. City may abandon or postpone the Activity or Program and will notify Contractor as soon as possible. Contractor will be paid for satisfactory Servicesrendered through the date of abandonment upon submission of final invoices approved by City.

16. Termination. City may terminate this contract for causeor without causeat any time and will notify Contractor assoon aspossible. Contractor will bepaid for satisfactory servicesrendered through the date of termination upon submission of final invoices approved by City.

RecreationServicesAgreement/ Rev. June2021
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17. GoverningLaw, Venue, andDispute Resolution. Thiscontractisgovernedby thelaws of the Stateof California. Any legalactionsor proceedingsfiled againstCity in connectionwith this contract must comply with the government claims filing requirements and must be filed with the Superior Court for the County of Santa Clara, State of California. At City’s request, Contractor is required to continue to provide Services pending resolution of any dispute. If the Parties elect arbitration, the arbitrator’s award must be supportedby law and substantialevidenceand include detailedwritten findings of law andfact.

18. Attorney Fees. If City is required to pursue litigation, arbitration or other administrative or regulatoryproceedingto enforceits rights or thetermsof this Agreement, theprevailing party will beentitledto reasonableattorneyfeesandcosts. ThisSection18survivesthis Agreement.

19. Third Party Beneficiaries. There are no third party beneficiaries under this Contract.

20. Waiver. Neitheracceptanceof Servicesnor paymentthereofconstitutesawaiver of any contract provision. City waiver of a breach shall not constitute waiver of another term, provision, covenant, or condition, or a subsequentbreach, whether the sameor a different character.

21. Entire Agreement. This Agreement and all referencedExhibits are hereby attached and incorporatedinto theAgreementby this referenceandrepresentthefull andcompleteunderstanding asto those matters contained herein, and supersedeany other contract or understanding, either oral or written, between the Parties. This Agreement may not bemodified or amended exceptin writing signed by both Parties. If there is any inconsistency between any term, clause, or provision of the main contract andanyterm, clause, or provisionof theattachmentsor exhibitsthereto, thetermsof themaincontract shallprevailandbecontrolling.

22. Inserted Provisions. Eachprovision or clauserequired by law or this contract is deemed to be included and will be inferred herein. Either party may request an amendment to cure any mistakeninsertionor omissionof arequiredprovision.

23. Headings. The headings are for convenience only and are not a part of the contract or intended to affect, limit, or amplify the terms or provisions of this Agreement.

24. Severability/ Partial Invalidity. If any contract term or provision, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other contract terms and provisions and their application to specific situations will remain in full force and effect.

25. Survival. All provisions which by their nature must continue after the Agreement ends, including without limitation Indemnification, Insurance, Ownership of Materials, Records, Governing Law, and Attorney Fees, will survive the expiration or termination of this Agreement.

26. Notices. All notices and instruments pertaining to material provisions of this contract or significant disputes which are required by law or under this contract to be in writing must be sent to the persons listed below. The notices will be deemed effective on the date of personal delivery or the RecreationServicesAgreement/ Rev. June2021
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date confirmed by a reputable overnight delivery service, on the fifth ( 5th) calendar day after deposit in the United StatesMail, postage prepaid, registered or certified, or the next business day following electronicsubmission.

To City of Cupertino:

Office of the City Manager
10300TorreAve., Cupertino, CA 95014
Cc: Representative/Coordinator: KarenLevy
Email: [email protected]
To Contractor: RED LINE GYMNASTICS LLC,
DBA: BAY AERIALS GYMNASTICS
4883Davenport Place,
Fremont, CA 94538
Cc: Representative/Coordinator: JohnAquirre
Email: [email protected]

27. Execution. The person executing this contract on behalf of Contractor represents and warrantsthat Contractorhasfull right, power, and authority to executethis contractand to carryout all actionsand servicesrequired. This contractconstitutesa legally binding obligation of Contractor, and may be executedin counterparts, eachone of which is deemed an original and all of which, taken together, constitute a single binding instrument.

SIGNATURESCONTINUE ON THE FOLLOWING PAGE
RecreationServicesAgreement/ Rev. June2021
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IN WITNESS WHEREOF, the parties have causedthis contract to be executed.

CITY OFCUPERTINO
A Municipal Corporation
By
Name
Title
Date

CONTRACTOR
By
Name
Title
Date
Tax I.D. No.: Refer to W9
APPROVED AS TO FORM:

CHRISTOPHER D. JENSEN
CupertinoCity Attorney
ATTEST:

KIRSTEN SQUARCIA
City Clerk
Date
john aguirre
Jan 10, 2022
Manager Member
Christopher D. Jensen
Rachelle Sander
Jan 10, 2022
Assistant Director of Parks and Recreation
Jan 10, 2022
Updated06/23/21

EXHIBIT A

SCOPEOF WORK, PERFORMANCE AND PAYMENT SCHEDULES
TheCONTRACTORwill provide GymnasticsClassesand Programsin, but not limited to, the following:

SweetPeasGymnastics Levels 1-5, Girls Gymnastics Beginner and Advanced Beginner, Lil Ninjas 3-5, CupertinoNinjas
Location and Time of CONTRACTOR Services:

Referto theCity’sPublicationsfor agreedupon dates, times, andlocationsof aclass, camp, activity, program, or service (“class”). TheCity, at its solediscretion, maychangetheagreeddates, timesand locations of a class, or may cancela class.

Compensationfor CONTRACTORServices:

Contractor shall be compensatedfor servicesperformed pursuant to this Agreement.

For a classtaught in person, 60% of resident fees.

City and Contractor may mutually agreefor Contractor to teacha classonline rather than in person, provided that City and Contractor reach agreement for compensation for that online class.

Compensation for that online classshall be specified in writing in a separateside agreement before online instruction for a classbegins.

The total compensation to the Contractor shall not exceed $75,000.00.

Eligible Participant Minimum and Maximums for CONTRACTOR Services:

Minimum: 4
Maximum: 10
If lessthantherequiredminimum numberof participantsenroll in andpayfor aparticularclassas identified in the schedule before the classis scheduled to start, the City may cancelthe particular class and/or terminate this Agreement without additional notice or payment to Contractor.

List of all ContractorEmployeesworking for the City of Cupertino (if no Employees, identify self”):

Seeattachedlist of employees.

Performance of CONTRACTOR Services:

In the caseContractor unilaterally cancelsperformance of a classwithout City approval, City reserves theright to immediatelyandwithout noticecanceltheremainderof classesofferedandor performed by Contractor.

COVID-19HealthOrder Compliance
Contractor acknowledges that its duty to comply with Laws, asstated in Section13of the Agreement, includes compliance by Contractor with any restrictions on travel or social distancing or other requirementssetforth in anyhealthorderissuedby anylocal, state, or federalauthority, andany otherlocal, state, or federallawsor policiesthathavebeenor maybeenactedin responseto the COVID-19pandemic (collectively, “HealthLaws”). Contractorshallcomplywith all applicable Health Laws when preforming work under this Agreement. If this Agreement specifieswork that cannot be performed in compliance with the Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. Contractor shall likewise comply with any City protocols designedto helppreventthespreadof COVID-19. Contractoracknowledgesthat theneedto comply with theHealthLawsmayresultin theCity cancelingperformanceof anyclassor meetingsof aclass referencedin this Agreement.

Registration, Enrollment, andSupervision
The Contractor shall follow all guidelines pertaining to registration procedures aslisted in the quarterlyrecreationschedule. Participantsmaynot takepart in theprogramunlesstheyarelistedon theclassrosteror canshowproof of enrollment. All participantsandvolunteersneedto completethe City’sWaiverof Liability form prior to takingpart in theprogram. If applicable, contractorswho are responsible for supervising minors must remain with the classuntil a parent of legal guardian has arrived and all minors are releasedto them.

Injury ofaClassParticipant
In the event of an injury occurring to a participant, the Contractor will notify the City within 1 hour and complete an Incident Report in the form approved by the City. The Incident Report must be submittedto theCity within 24hoursof theinjury occurring.

Updated6/23/21

EXHIBIT D
Contractor’s Mandated Reporter Declaration
Theundersigneddoesherebycertify that:

1. I am a representative of RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS; that I am familiar with the facts herein and am authorized and qualified to executethis declaration.

2. I declare that RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS has complied with fingerprinting and criminal background investigation requirements with respect to all Contractor’s employees who may have contact with minors in the course of providing services pursuant to the Agreement, and the California Department of Justicehasdetermined that none of those employeeshasbeenconvictedof a felony, asthat term is defined in California PenalCodeSection 11105.3.

3. I declare that each coach and administrator shall be required to successfullycomplete concussionand headinjury educationat leastonce, either online or in person, beforesupervisinga participant, asrequired by California Health and SafetyCode Section124235, et seq.

4. On a yearly basis, all participants shall be required to sign and return a concussion and head injury information sheetin compliance with California Health and Safety Code Section124235, which may be in the form attached asD-1.

5. That a complete and accurate list of Contractor’s employees, who may come in contact with minors during the course and scopeof the Agreement, are included below.

6. All of the below mentioned employees have tested negative for TB, or X-ray results for TB, and havecurrentdocumentationon file with Contractor.

7. All of the below mentioned employees have received training and understand their responsibilitiesundertheMandatedReporterlawsof this stateandarewilling andableto comply.

List of all Contractor Employees working for the City ( if no Employees, identify “ self”):

Seeattached list of employees.

8. The Contractor will notify the City of Cupertino in writing of any new employees and will be addedto theabovelist prior to beginningwork at theCity of Cupertino.

I declare under penalty of perjury that the foregoing is true and correct.

CONTRACTOR
By
Name
Title
Date
1386923.1
Jan 10, 2022
Manager Member
john aguirre
List of all Contractor Employees working for the City of Cupertino ( if no Employees, identify self”):

Gloria SantosMoreno JessicaMontes Harrison Yee Tiffany Nguyen RedLineGymnasticsLLCDBABayAerials
GymnasticsContractFY 2022-2023
Final Audit Report 2022-01-11
Created: 2022-01-10
By: Kevin Khuu ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAdahbpcosH-uro3EgyBysvJYlPnN2v9Kn Red Line GymnasticsLLC DBA Bay AerialsGymnasticsContra
ct FY 2022-2023" History
Documentcreatedby KevinKhuu ([email protected])
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2022-01-11 - 0:41:30 AM GMT
1 FIRST AMENDMENT TO AGREEMENT 22-005 BETWEEN THE

CITY OF CUPERTINO AND RED LINE GYMNASTICS LLC,
DBA: BAY AERIALS GYMNASTICS FOR GYMNASTICS

CLASSES AND PROGRAMS
This First Amendment to Agreement 22- 005 between the City of Cupertino and RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS is by and between the CITY OF CUPERTINO, a municipal corporation ( hereinafter " City") and RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS, a Limited Liability Company (“ Contractor”) whose address is 4883 Davenport Place, Fremont, CA 94538, and is madewith referenceto the following:

RECITALS:

A. On January10, 2022, Agreement 22-005 (“Agreement”) was enteredinto by and between City and Contractor for Gymnastics Classes and Programs.

B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows:

1. Paragraph4 of the Agreement is modified to readasfollows:

City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $107,000.00 (“Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A- 1. The maximum compensationincludes all costs, expenses, and reimbursementsand will remain in place even if Contractor’ s actual costs exceed the capped amount. Contractor must submit invoices and the information requirement in Exhibit A- 1 in order to receive payment.

City will compensate Contractor within thirty ( 30) days after approval of written invoices.

Invoices are subject to review and audit by City during regular business hours upon 24 hours’ notice. Contractor must maintain complete and accuraterecords of payrolls, expenditures, and disbursements and other cost items charged to City or establishing the basis for an invoice, for a minimum of four (4) yearsfrom the dateof the final payment.

2. Exhibit A of the Agreement is replaced with a new Exhibit A- 1 attached hereto.

3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.

SIGNATURES CONTINUE ON THE FOLLOWING PAGE
2 IN WITNESS WHEREOF, the parties hereto have causedthis modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date

RED LINE GYMNASTICS LLC,
DBA: BAY AERIALS GYMNASTICS
By
Title
Date

EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base Amount 2022-348 75,000.00
Amendment 1 2022-348 32,000.00
107,000.00
1429656. 1
john aguirre
Manager Member
May 9, 2022
Christopher D. Jensen
Assistant Director of Parks and Recreation
May 16, 2022
Kirsten Squarcia 5/16/22
Kirsten Squarcia 5/16/22
Updated 06/ 23/ 21
EXHIBIT A- 1

SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES
The CONTRACTOR will provide Gymnastics Classes and Programs in, but not limited to, the following:

Sweet Peas Gymnastics Levels 1- 5, Girls Gymnastics Beginner and Advanced Beginner, Lil Ninjas 3- 5, Cupertino Ninjas
Location and Time of CONTRACTOR Services:

Refer to the City’ s Publications for agreed upon dates, times, and locations of a class, camp, activity, program, or service (“ class”). The City, at its sole discretion, may change the agreed dates, times and locations of a class, or may cancel a class.

Compensation for CONTRACTOR Services:

Contractor shall be compensated for services performed pursuant to this Agreement.

For a class taught in person, 60% of resident fees.

City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class.

Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins.

The total compensation to the Contractor shall not exceed $ 107, 000. 00.

Eligible Participant Minimum and Maximums for CONTRACTOR Services:

Minimum: 4
Maximum: 10
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 Contractor.

List of all Contractor Employees working for the City of Cupertino ( if no Employees, identify self”):

See attached list of employees.

Performance of CONTRACTOR Services:

In the case Contractor unilaterally cancels performance of a class without City approval, City reserves the right to immediately and without notice cancel the remainder of classes offered and or performed by Contractor.

COVID- 19 Health Order Compliance
Contractor acknowledges that its duty to comply with Laws, as stated in Section 13 of the Agreement, includes compliance by Contractor with any restrictions on travel or social distancing or other requirements set forth in any health order issued by any local, state, or federal authority, and any other local, state, or federal laws or policies that have been or may be enacted in response to the COVID- 19 pandemic ( collectively, “ Health Laws”). Contractor shall comply with all applicable Health Laws when preforming work under this Agreement. If this Agreement specifies work that cannot be performed in compliance with the Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. Contractor shall likewise comply with any City protocols designed to help prevent the spread of COVID- 19. Contractor acknowledges that the need to comply with the Health Laws may result in the City canceling performance of any class or meetings of a class referenced in this Agreement.

Registration, Enrollment, and Supervision
The Contractor 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. If applicable, contractors who are responsible for supervising minors must remain with the class until a parent of legal guardian has arrived and all minors are released to them.

Injury of a Class Participant
In the event of an injury occurring to a participant, the Contractor 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.

GymnasticsClassesandPrograms
Final Audit Report 2022-05-16
Created: 2022-05-09
By: City of Cupertino ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAA_aEJHDetN2cvpiO8TgPKFwBCI-yrSRqi GymnasticsClassesand Programs" History
Documentcreatedby Cityof Cupertino ([email protected]) 2022-05-09 - 11:33:12 PM GMT- IP address: 35.229.54.2
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1 SECOND AMENDMENT TO AGREEMENT 22-005 BETWEEN

THE CITY OF CUPERTINO AND RED LINE GYMNASTICS LLC,
DBA: BAY AERIALS GYMNASTICS FOR GYMNASTICS

CLASSES AND PROGRAMS
This Second Amendment to Agreement 22- 005 between the City of Cupertino and RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS is by and between the CITY OF CUPERTINO, a municipal corporation ( hereinafter " City") and RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS, a Limited Liability Company (“ Contractor”) whose address is 4883 Davenport Place, Fremont, CA 94538, and is madewith referenceto the following:

RECITALS:

A. On January10, 2022, Agreement 22-005 (“Agreement”) was enteredinto by and between City and Contractor for Gymnastics Classes and Programs.

B. On May 16, 2022, City and Contractor agreed to the First Amendment for Gymnastics Classesand Programs.

C. The Agreement and First Amendment are collectively referred to asthe “Agreement” unless otherwise indicated.

D. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows:

1. Paragraph4 of the Agreement is modified to readasfollows:

City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $150,000.00 (“Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A- 2. The maximum compensationincludes all costs, expenses, and reimbursementsand will remain in place even if Contractor’ s actual costs exceed the capped amount. Contractor must submit invoices and the information requirement in Exhibit A- 2 in order to receive payment.

City will compensate Contractor within thirty ( 30) days after approval of written invoices.

Invoices are subject to review and audit by City during regular business hours upon 24 hours’ notice. Contractor must maintain complete and accuraterecords of payrolls, expenditures, and disbursements and other cost items charged to City or establishing the basis for an invoice, for a minimum of four (4) yearsfrom the date of the final payment.

2. Exhibit A- 1 of the Agreement is replaced with a new Exhibit A- 2 attached hereto.

3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. 2 IN WITNESS WHEREOF, the parties hereto have causedthis modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date

RED LINE GYMNASTICS LLC,
DBA: BAY AERIALS GYMNASTICS
By
Title
Date

EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base Amount 2022-348 75,000.00
Amendment 1 2022-348 32,000.00
Amendment 2 2023-80 43,000.00
150,000.00
1429656. 1
John Aguirre
Manager Member
Mar 16, 2023
Christopher D. Jensen
Director of Parks and Recreation
Mar 16, 2023
Mar 16, 2023
Updated 06/ 23/ 21
EXHIBIT A- 2

SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES
The CONTRACTOR will provide Gymnastics Classes and Programs in, but not limited to, the following:

Sweet Peas Gymnastics Levels 1- 5, Girls Gymnastics Beginner and Advanced Beginner, Lil Ninjas 3- 5, Cupertino Ninjas
Location and Time of CONTRACTOR Services:

Refer to the City’ s Publications for agreed upon dates, times, and locations of a class, camp, activity, program, or service (“ class”). The City, at its sole discretion, may change the agreed dates, times and locations of a class, or may cancel a class.

Compensation for CONTRACTOR Services:

Contractor shall be compensated for services performed pursuant to this Agreement.

For a class taught in person, 60% of resident fees.

City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class.

Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins.

The total compensation to the Contractor shall not exceed $ 150, 000. 00.

Eligible Participant Minimum and Maximums for CONTRACTOR Services:

Minimum: 4
Maximum: 10
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 Contractor.

List of all Contractor Employees working for the City of Cupertino ( if no Employees, identify self”):

See attached list of employees.

Performance of CONTRACTOR Services:

In the case Contractor unilaterally cancels performance of a class without City approval, City reserves the right to immediately and without notice cancel the remainder of classes offered and or performed by Contractor.

COVID- 19 Health Order Compliance
Contractor acknowledges that its duty to comply with Laws, as stated in Section 13 of the Agreement, includes compliance by Contractor with any restrictions on travel or social distancing or other requirements set forth in any health order issued by any local, state, or federal authority, and any other local, state, or federal laws or policies that have been or may be enacted in response to the COVID- 19 pandemic ( collectively, “ Health Laws”). Contractor shall comply with all applicable Health Laws when preforming work under this Agreement. If this Agreement specifies work that cannot be performed in compliance with the Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. Contractor shall likewise comply with any City protocols designed to help prevent the spread of COVID- 19. Contractor acknowledges that the need to comply with the Health Laws may result in the City canceling performance of any class or meetings of a class referenced in this Agreement.

Registration, Enrollment, and Supervision
The Contractor 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. If applicable, contractors who are responsible for supervising minors must remain with the class until a parent of legal guardian has arrived and all minors are released to them.

Injury of a Class Participant
In the event of an injury occurring to a participant, the Contractor 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.

GymnasticsClassesandPrograms
Final Audit Report 2023-03-16
Created: 2023-03-16
By: City of Cupertino ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAYhCMchBV5qGHmW-KMvm96AL9pNKBKVti GymnasticsClassesand Programs" History
Documentcreatedby Cityof Cupertino ([email protected]) 2023-03-16 - 2:55:35 PM GMT- IP address: 35.229.54.2
Documentemailedto AraceliAlejandre ([email protected]) for approval 2023-03-16 - 2:57:55 PM GMT
Document approved by Araceli Alejandre ([email protected]) Approval Date: 2023-03-16 - 3:02:55 PM GMT - Time Source: server- IP address: 73.170.27.253 Documentemailedto [email protected] signature
2023-03-16 - 3:02:56 PM GMT
Emailviewedby [email protected]
2023-03-16 - 7:15:50 PM GMT- IP address: 69.147.90.148
[email protected] signingas JohnAguirre 2023-03-16 - 7:17:27 PM GMT- IP address: 12.23.20.158
Documente-signedby JohnAguirre ([email protected])
Signature Date: 2023-03-16 - 7:17:29 PM GMT - Time Source: server- IP address: 12.23.20.158 Documentemailedto [email protected] signature 2023-03-16 - 7:17:30 PM GMT
Email viewed by [email protected]
2023-03-16 - 7:18:49 PM GMT- IP address: 104.47.73.126
[email protected] signingas ChristopherD. Jensen 2023-03-16 - 7:19:03 PM GMT- IP address: 64.165.34.3
Documente-signedby ChristopherD. Jensen ([email protected]) Signature Date: 2023-03-16 - 7:19:05 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Rachelle Sander ([email protected]) for signature 2023-03-16 - 7:19:07 PM GMT
Emailviewedby RachelleSander ([email protected])
2023-03-16 - 7:21:31 PM GMT- IP address: 104.47.73.254
Documente-signedby RachelleSander ([email protected]) Signature Date: 2023-03-16 - 7:22:03 PM GMT - Time Source: server- IP address: 64.165.34.3 Documentemailedto KirstenSquarcia ([email protected]) for signature 2023-03-16 - 7:22:05 PM GMT
Emailviewedby KirstenSquarcia ([email protected])
2023-03-16 - 7:44:43 PM GMT- IP address: 104.47.74.126
Documente-signedby KirstenSquarcia ([email protected]) Signature Date: 2023-03-16 - 7:44:51 PM GMT - Time Source: server- IP address: 67.188.176.248 Agreement completed.
2023-03-16 - 7:44:51 PM GMT
Names and email addresses are entered into the Acrobat Sign service by Acrobat Sign users and are unverified unless otherwise noted. 1 THIRD AMENDMENT TO AGREEMENT 22-005 BETWEEN THE CITY OF CUPERTINO AND RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS FOR GYMNASTICS CLASSES AND PROGRAMS This Third Amendment to Agreement 22-005 between the City of Cupertino and RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICS is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASis 4883 Davenport Place, Fremont, CA 94538, and is made with reference to the following: RECITALS: A. On January 10, 2022, Agreement 22-between City and Contractor for Gymnastics Classes and Programs. B. On May 16, 2022, City and Contractor agreed to the First Amendment for Gymnastics Classes and Programs. C. On March 16, 2023, City and Contractor agreed to the Second Amendment for Gymnastics Classes and Programs. D. The Agreement, First Amendment, and Second Amendment are collectively referred E. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Paragraph 3 of the Agreement is modified to read as follows: Term. This contract begins on the Effective Date and ends on 08/31unless extended or terminated as provided herein. Time is of the essence and Contractor must have sufficient time, resources, and qualified staff to deliver the Services as required. Contractor must promptly notify City of any actual or potential delays to afford the Parties adequate City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring 2. Paragraph 4 of the Agreement is modified to read as follows: Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $174,000.00 and rates included in Exhibit A-3. The maximum compensation includes all costs, expenses, and amount. Contractor must submit invoices and the information requirement in Exhibit A-3 in order to receive payment. City will compensate Contractor within thirty (30) days after approval of written invoices. Invoices are subject to review and audit by City during regular business 2 payrolls, expenditures, and disbursements and other cost items charged to City or establishing the basis for an invoice, for a minimum of four (4) years from the date of the final payment.3.Exhibit A-2 of the Agreement is replaced with a new Exhibit A-3 attached hereto.4.Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.CITY OF CUPERTINOByTitleDateAPPROVED AS TO FORMCity AttorneyATTEST:City ClerkDate RED LINE GYMNASTICS LLC, DBA: BAY AERIALS GYMNASTICSByTitleDate EXPENDITURE DISTRIBUTIONItem PO Number AmountBase Amount 2022-34875,000.00Amendment 1 2022-34832,000.00Amendment 2 2023-8043,000.00Amendment 324,000.00- - 174,000.001429656.1

Updated 06/23/21
EXHIBIT A-3 SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES The CONTRACTOR will provide Gymnastics Classes and Programs in, but not limited to, the following: Sweet Peas Gymnastics Levels 1-5, Girls Gymnastics Beginner and Advanced Beginner, Lil Ninjas 3-5, Cupertino Ninjas Location and Time of CONTRACTOR Services: ed dates, times and locations of a class, or may cancel a class. Compensation for CONTRACTOR Services: Contractor shall be compensated for services performed pursuant to this Agreement. For a class taught in person, 60% of resident fees. City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class. Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins. The total compensation to the Contractor shall not exceed $174,000.00. Eligible Participant Minimum and Maximums for CONTRACTOR Services: Minimum: 4 Maximum: 10 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 Contractor. List of all Contractor Employees working for the City of Cupertino (if no Employees, identify See attached list of employees. Performance of CONTRACTOR Services:

Updated 06/23/21
Class Cancellation Contractor will only receive compensation for a class that is performed. If performance of a class is cancelled by the City or Contractor before instruction begins, Contactor will not receive compensation for the class. If the City or Contractor cancels performance of certain meetings of a class, Contractor will only receive compensation for those meetings of the class that are performed. In the case Contractor unilaterally cancels performance of a class without City approval, City reserves the right to immediately and without notice cancel the remainder of classes offered and or performed by Contractor. COVID-19 Health Order Compliance Contractor acknowledges that its duty to comply with Laws, as stated in Section 13 of the Agreement, includes compliance by Contractor with any restrictions on travel or social distancing or other requirements set forth in any health order issued by any local, state, or federal authority, and any other local, state, or federal laws or policies that have been or may be enacted in response to the COVID-Health Laws when preforming work under this Agreement. If this Agreement specifies work that cannot be performed in compliance with the Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. Contractor shall likewise comply with any City protocols designed to help prevent the spread of COVID-19. Contractor acknowledges that the need to comply with the Health Laws may result in the City canceling performance of any class or meetings of a class referenced in this Agreement. Registration, Enrollment, and Supervision The Contractor 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 responsible for supervising minors must remain with the class until a parent of legal guardian has arrived and all minors are released to them. Injury of a Class Participant In the event of an injury occurring to a participant, the Contractor 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.

Cupertino City CouncilJuly 18, 2023

Cupertino City Council
July 18, 2023