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04-019, Neighborhood Housing Services Silicon Valley Vy-OI'1 AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF CUPERTINO, CALIFORNIA AND NEIGHBORHOOD HOUSING SERVICES SILICON VALLEY This agreement for the performance of services ("Agreement") is made and entered into on this 10th day of Januarv, 2004 ("Effective Date"), by and between Neighborhood Housing Services Silicon Valley, a California Corporation, with its principal place of business located at 1156 N. Fourth Street San Jose, CA 95112 ("Contractor"), and the City of Cupertino, California, a general law municipal corporation, with its principal place of business located at 10300 Torre Avenue, Cupertino, California 95014 ("City"). City and Contractor may be referred to herein individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement." RECITALS Whereas: A. City desires to secure professional servIces more fully described m this Agreement; B. Contractor represents that it, and its sub-contractors, if any, have the professional qualifications, expertise, desire and any licensees) necessary to provide certain goods and/or required services of the quality and type which meet the City's requirements; and, C. The Parties have specified in this Agreement the terms and conditions under which such services will be provided and paid for. Contractor and City agree as follows: AGREEMENT PROVISIONS 1. SERVICES TO BE PROVIDED City employs Contractor to perforn1 the services ("Services") more fully described in Exhibit A entitled, "SCOPE OF SERVICES." Exhibit A is attached and incorporated by this reference. Except as otherwise specified in this Agreement, Contractor shall fumish all necessary technical and professional services, including labor, material, equipment, transportation, supervision and expertise to satisfactorily complete the work required by City at his/her own risk and expense. 2. TERM OF AGREEMENT Unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on the Effective Date and terminate at the end of day on Dcccmbcr 31, 2001. a. Commencement of Services Contractor shall begin perf01ming Services after receiving written notice from the City to proceed. b. Completion of Services Contractor shall complete Services within the time limits set f01ih in the Scope of Services or as mutually determined in writing by the Parties. When City determines that Contractor has satisfactorily completed the Services, City shall give Contractor written Notice of Completion, and Contractor shall not incur any further costs under this Agreement after receiving such notice. 3. COMPENSATION AND PAYMENT a. In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and services rendered by Contractor at the rate per hour for labor and cost per unit for materials as outlined in Exhibit B, entitled "SCHEDULE OF FEES," attached and incorporated by this reference. b. Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding month, subject to verification by City. City will pay Contractor within thirty (30) days of City's receipt of invoice. 4. NO ASSIGNMENT OF AGREEMENT City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. 5. NO THIRD PARTY BENEFICIARY This Agreement shall not be construed to be an agreement for the benefit of any third party or pmiies, and no third pmiy or parties shall have any claim or right of action under this Agreement. 6. INDEPENDENT CONTRACTOR Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights, however, to manage its employees in their performance of Services under this Agreement. Contractor is not authorized to bind City to any contracts or other obligations. 7. SUBCONTRACTING None of the Services under this Agreement shall be performed by subcontractors unless Contractor specifically identifies subcontractors in writing and City pre-approves such subcontractors in writing. Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it. 8. CONTRACTOR ASSIGNED PERSONNEL Contractor shall designate in writing an individual to have immediate responsibility for the Services under this Agreement. Key personnel to be assigned by Contractor shall be stipulated in the Scope of Services. Substitution of any assigned person shall require the written prior approval of the City, which shall not be unreasonably withheld. If the City determines that a proposed substitution is not responsible or qualified to perform the services then, at the request of the City, Contractor shall substitute a qualified and responsible person. 9. OWNERSHIP OF DOCUMENTS a. All work products, drawings, data, reports, files, estimates and other infonnation and materials, with the exception of proprietary computer programs, accumulated by the Contractor to complete services under this Agreement shall be owned by the City. b. Contractor shall retain custody of all project data and documents other than deliverables specified in the Scope of Services, but shall make access thereto available to the City at all reasonable times the City may request. City may make and retain copies for infonnation and reference. 10. RECORDS OF LABOR AND COSTS a. Contractor shall maintain for the Services, records of labor and costs used in claims for compensation under this Agreement. Records shall mean a contemporaneous record of time for personnel; a methodology and calculation of the Multiplier for fringe benefits and indirect costs; and invoices, time sheets, or other factors used as a basis for determining other nonlabor charges for Services. These records must be made available to the City upon reasonable notice of no more than 48 hours during the period of the performance of this Agreement. b. After delivery of Services (completion of Scope of Services) under this Agreement, the Contractor's records of all costs used in claim's for compensation under this Agreement shall be available to City's accountants and auditors for inspection and verification. These records will be maintained by Contractor and made reasonably accessible to the City for a period of three (3) years after completion of Scope of Services under this Agreement. c. Contractor agrees to cooperate and provide any and all information concerning the Project costs which are a factor in determining compensation under this ^grccl11cllt us requested by the City or any public agency which has any part in providing financing for, or authority over, the Services which are provided under the Agreement. d. Failure to provide documentation or substantiation of all costs for Services used as a factor in compensation paid under Provision 3 hereof will be grounds for City to refuse payment of any statement submitted by the Contractor and for a back charge for any City funds, including interest from payment; or grant, matching or other funds from agencies assisting City in financing the Services specified in this Agreement. 11. NONDISCLOSURE OF PROPRIETARY INFORMATION Contractor shall consider all information provided by City and all drawings, reports, studies and other documents resulting from the Contractor's performance of the Services to be proprietary unless such information is available from public sources. Contractor shall not publish or disclose proprietary infonnation for any purpose other than the performance of the Services without the prior Written authorization of City or in response to legal process. 12. USE OF CITY NAME OR EMBLEM Contractor shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City. 13. AUDITS City, through its authorized representatives, has the right during the tern1 of this Agreement, and for three (3) years from the date of final payment for goods and/or Services provided under this Agreement, to audit the books and records of Contractor regarding matters covered by this Agreement. Contractor agrees to maintain accurate books and records in accordance with generally accepted accounting principles. Any expenses not so recorded shall be disallowed by City. Contractor agrees to help City meet any reporting requirements with respect to Contractor's Services if requested by City in writing. 14. QUALIFICATIONS OF CONTRACTOR Contractor represents that its personnel are qualified to furnish Services of the type and quality, which City requires. City expressly relies on Contractor's representations regarding its skills and knowledge. Contractor shall promptly perform all Services requested by City in a safe manner and in accordance with all federal, state, and local operation and safety regulations. Contractor shall work closely with and be guided by City. Contractor shall also perfOlm all work in accordance with generally accepted business practices and performance standards of the industry. 15. MONITORING OF SERVICES City may monitor the Services performed under this Agreement to determine whether Contractor's operation conforms to City policy and to the terms of this Agreement. City may also monitor the Services to be performed to determine whether financial operations are conducted in accord with applicable City, county, state, and federal requirements. If any action of Contractor constitutes a breach, City may temlinate this Agreement pursuant to the provisions described herein. 16. WARRANTY Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect, and shall conform to the specifications, requirements, and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate, or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City. 17. FAIR EMPLOYMENT Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, condition of physical handicap, religion, ethnic background, or marital status, in violation of state or federal law. 18. CONTRACTOR TO HOLD CITY HARMLESS To the extent permitted by law, Contractor agrees to indemnify, protect, defend, and hold harmless City, its City Council, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney's fees in providing a defense to any claim, arising from Contractor's negligent, reckless or wrongful acts, errors, or omissions with respect to or in any way connected with the performance of the Services by Contractor, its agents, subcontractors and/or assigns under this Agreement. 19. INSURANCE REQUIREMENTS During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall purchase and maintain in full force and effect, at no cost to City insurance policies with respect to employees and vehicles assigned to the Perfonnance of Services under this Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage verifications as defined in Exhibit C attached and incorporated by this reference. 20. AMENDMENTS This Agreement may be amended only with the written consent of both Parties. 21. INTEGRATED DOCUMENT This Agreement represents the entire agreement between City and Contractor. No other understanding, agreements, conversations, or otherwise, with any representative of City prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon City. 22. SEVERABILITY CLAUSE In case anyone or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect. 23. LAW GOVERNING CONTRACT This Agreement shall be governed and interpreted usmg the laws of the State of California. 24. DISPUTE RESOLUTION a. Any controversies or claims between Contractor and City regarding this Agreement must first be put in writing and delivered to the other Party. The Parties will meet in good faith to attempt to resolve the issue in question. If the Pariies fail to come to an agreement on the resolution of the issue, all required administrative procedures must be followed. If all administrative procedures are exhausted and the Parties are unable to resolve the issue, the matter must be submitted to mediation within thirty (30) calendar days after the written request for mediation is delivered by one Party. b. The Paliies may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request that the Superior Comi of Santa Clara County appoint a mediator. The mediation meeting shall not exceed one work day [eight (8) hours]. The Parties may agree to extend the time allowed for mediation under this Agreement. c. Mediation under this section is a condition precedent to filing an action in any comi. In the event litigation or mediation arises out of any dispute related to this Agreement, the Parties shall each pay their respective attorneys' fees, expert witness costs and cost of suit, regardless of the outcome of the litigation. d. Only after both the administrative dispute resolution procedure and the mediation procedure have failed to resolve a dispute between the Parties may one or both of the Panics file suit in the appropriate civil court. 25. VENUE The venue of any suit filed by either Party shall be vested in the state comis of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California. 26. ELECTION OF REMEDIES The pursuit by any Party of any specific remedy shall not exclude any other remedy available to the Party. 27. CONFLICT OF INTERESTS This Agreement does not prevent either Party from entering into similar agreements with other parties. To prevent a conflict of interest, Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code Section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises. 28. TERMINATION OF THE AGREEMENT a. Termination Without Cause Either Party may tenninate this Agreement without cause by giving the other Party written notice ("Notice of Termination") which clearly expresses that Pmiy's intent to terminate the Agreement. Notice of Telmination shall become effective no less than thirty (30) calendar days after a Party receives such notice. After either Party terminates the Agreement, Contractor shall discontinue further services as of the effective date of termination, and City shall pay Contractor for all Services satisfactorily perfonned up to such date. b. Termination For Cause For purposes of this Agreement, the tenn "default" shall mean the failure of any Party to perform any material obligation in the time and manner provided by this Agreement. Either Party may tenninate this Agreement in the event of a default by the other Party by providing a written Notice of Termination to the defaulting Party. Such Notice of Termination shall become effective no less than ten (10) calendar days after a Party receives such notice. Such Notice of Termination for cause shall include a statement by the terminating Party setting forth grounds for determination of default under the Agreement. In the event this Agreement is terminated for cause as set forth under this section, City shall pay Contractor for all Services satisfactorily performed up to the date the Agreement is terminated. City may deduct from such payment the amount of actual damage, if any, sustained by City due to Contractor's failure to perform the Services or for breach of this Agreement. c. Opportunity to Cure Default Upon receipt of a Notice of Tennination by a Party arising from its default under this Agreement, the defaulting Party shall have five (5) days from the receipt of such notice to cure the default by making such payment or perfonning the required obligation. If the default is cured to the mutual satisfaction of the Parties, the Agreement shall remain in effect upon written acceptance of the cure by the Party who issued the Notice of Termination for cause. 29. NOTICES All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows: City of Cupertino Community Development Department Attn: Vera Gil 10300 Torre Avenue Cupertino, CA 95014 or by facsimile at (408) 777-3333 And to Contract address as follows: Neighborhood Housing Services Silicon Valley 1156 N. Fourth Street San Jose, CA 95112 or by facsimile at (408) 279-4100 30. COMPLIANCE WITH ETHICAL STANDARDS Contractor shall: a. Read Exhibit D, entitled "ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA," attached and incorporated by this reference; and, b. Execute Exhibit E, entitled "AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS" attached and incorporated by this reference. The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly and authorized representatives. It is the intent ofthc Partics thatlhis Agrccmcnt shal1 becomc operative 011 the Effective Date. III III III III III III III III III III III III III III III II I III III III III III III III II I III III III III III II I II I III III III II I III III III III CITY OF CUPERTINO, CALIFORNIA a General Law California municipal corporation By: DQJ~~~ City Manager ATTEST: ~~ Kimberly SI t City Clerk 10300 Tone Avenue Cupertino, California 95014 Telephone: (408) 777-3200 Facsimile: (408) 777-3333 "City" NEIGHBORHOOD HOUSING SERVICES SILICON VALLEY a California Corporati d, By: . / '1t/v~ E ward Moncrief. . . utive Director if / 1156 N. Fourth Street San Jose, CA 95~ Telephone: (408) 279-2600 Facsimile: (408) 279-4100 "Contractor" AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF CUPERTINO, CALIFORNIA AND NEIGHBORHOOD HOUSING SERVICES EXHIBIT A The Services to be performed for the City by the Contractor under this Agreement are more fully described in the following Scope of Services: SCOPE OF SERVICES . Provide homebuyer education to residents of Cupertino who are interested in its Teacher Assistance Program. . Provide counseling in credit repair and/or budgeting to prospective program applicants as needed. . Pre-qualify prospective applicants to determine their purchasing power. . Implement a process-to be approved by the City of Cupertino-for selecting those prospective homebuyers who will have access to the Teacher Assistance Program. . Support those applicants selected for assistance in all aspects of the homeownership process as follows: . Arrange first mortgage financing; . Structure and process subordinate financing; . Assist with the real estate sales process; . Provide support in meeting all conditions precedent to loan approval and to the closing of escrow on each transaction; . Administer the homebuyers' signing of City of Cupertino Teacher Assistance Program Loan Documents. . Submit timely reports to the City of Cupertino in accordance with City requirements. Scope of Services Exhibit A Page I of I AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF CUPERTINO, CALIFORNIA AND NEIGHBORHOOD HOUSING SERVICES SILICON VALLEY EXHIBIT B SCHEDULE OF FEES In no event shall the amount billed to City by Contractor for Services performed under this Agreement exceed Twenty Thousand Dollars and No Cents ($20,000.00) dollars, subject to budget appropriations. Compensation for Consulting services perfonned under this Agreement shall be compensated for on a Cost Plus Fixed Fee basis. When using this basis of compensation, the City agrees to pay Consultant actual costs incurred, subject to an agreed upon Cost Ceiling, plus a Fixed Professional Fee (Fixed Fee). For purposes of this Agreement, the actual costs shall include: Direct Labor Cost Overhead Cost Other Direct Costs (Direct Non-salary Costs) Outside Services Labor rates shall be based on a normal 8-hour day, 40-hour week, with overtime paid for authorized work. Technicians, drafters, and support personnel are paid at one and one-half times their regular rate for overtime. Professional personnel are paid at their regular rate for overtime. Overhead Cost shall be the sum of Fringe Benefits and Indirect Costs. As a portion of the total compensation to be paid to Consultant, City shall pay a Fixed Professional Fee negotiated for each Task Order as profit for services rendered by Consultant covered by this Agreement and its Task Orders. The Fixed Fee may be increased for additional authorized services only by subsequent task order or amendment changing the scope of services: Definitions are as follows: a) Direct labor is salaries and wages paid to personnel for time directly chargeable to the project. Direct labor does not include the cost of Consultant's statutory and customary benefits, such as sick leave, holidays, vacations; and medical and retirement benefits nor the cost of the time of Schedule of Fees Page] of 2 Exhibit B executive and administrative personnel and others whose time is not identifiable to the project. b) Fringe benefits include Consultant's statutory and customary benefits, such as sick leave, holidays, vacations, medical and retirement benefits, incentive pay, tuition, and other costs classified as employee bcudits. c) Indirect costs are allocations of costs that are not directly chargeable to a specific engagement and are commonly referred to as Consultant's overhead. Indirect costs include provisions for such things as clerical support, office space, light and heat, insurance, statutory and customary employee benefits, and the time of executive and administrative personnel and others whose time is not identifiable to the attached Scope of Services. Under no circumstances can the same labor costs be charged as direct labor and also appear at the same time as indirect costs, and visa versa. d) Other (non-labor) direct costs include such typical expenses as cost of transportation and subsistence, printing and reproduction, computer time and programming costs, identifiable supplies, and charges by reviewing authorities. e) Outside Services shall include all charges from outside consulting firms or subconsultants. Reimbursement for mileage shall not exceed the prevailing Internal Revenue Service's standard mileage rate. II! II! III II! II! II! II! III III III III III III III III III II I III Schedule of Fees Page 2 of2 Exhibit B AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF CUPERTINO, CALIFORNIA AND NEIGHBORHOOD HOUSING SERVICES SILICON VALLEY EXHIBIT C INSURANCE REQUIREMENTS Contractor shall provide and maintain at all times during the performance of the Agreement the following insurances: 1. Workers' Compensation and Employer's Liability Insurance for protection of Contracor's employees as required by law and as will protect Contractor from loss or damage because of personal injuries, including death, to any of his employees. 2. Comprehensive Automobile Liability Insurance. Contractor agrees to carry a Comprehensive Automobile Liability Policy providing bodily injury liability. This policy shall protect Contractor against all liability arising out of the use of owned or leased automobiles both passenger and commercial. Automobiles, trucks, and other vehicles and equipment (owned, not owned, or hired, licensed or unlicensed for road use) shall be covered under this policy. Limits of liability for Comprehensive Automobile Liability Insurance shall not be less than $1,000,000 Combined Single Limit. 3. Comprehensive General Liability. Insurance as will protect Contractor and City from any and all claims for damages or personal injuries, including death, which may be suffered by persons, or for damages to or destruction to the property of others, which may arise from the Contractor's operations under this Agreement, which insurance shall name the City as additional insured. Said insurance shall provide a minimum of $1 ,000,000 Combined Single Limit coverage for personal injury, bodily injury, and property damage for each occurrence arid aggregate. Such insurance will insure Contractor and City from any and all claims arising from the following: 1. Personal injury; 2. Bodily injury; 3. Propel1y damage; 4. Broad form property damage; 5. Independent contractors; 6. Blanket contractual liability. 4. Contractor shall maintain a policy of professional liability insurance, protecting it against claims arising out of negligent acts, errors, or omissions of Contractor pursuant to this Agreement, in an amount of not less than $1,000,000. The said policy shall cover the indemnity provisions under this Agreement. Standard Insurance Requirements Page 1 of3 Exhibit C 5. Contractor agrees to maintain such insurance at Contractor's expense in full force and effect in a company or companies satisfactory to the City. All coverage shall remain in effect until completion of the Project. 6. Contractor will furnish the City \-\lith ccrtificaks 01 insurance issued by Contractor's insurance carrier and countersigned by an authorized agent or representative of the insurance company. The certificates shall show that the insurance will not be cancelled, altered, or reduced without at least thirty (30) days prior written notice to the City. The certificates for liability insurance will show that liability assumed under this Agreement is included. LIABILITY AND INDEMNIFICATION 7. Having considered the risks and potential liabilities that may exist during the perfonnance of the Services; and in consideration of the promises included herein, City and Contractor agree to allocate such liabilities in accordance with this Exhibit. Words and phrases used in this Exhibit shall be interpreted in accordance with customary insurance industry usage and practice. 8. Contractor shall indemnify and save harmless and defend the City and all of their agents, officers, and employees from and against all claims, demand, or cause of action of every name and nature arising out of negligent error, omission, or act of Contractor, its agents, servants, or employees in the perfonnance of its services under this Agreement. 9. In the event an action for damages is filed in which negligence is alleged on the part of City and Contractor, Contractor agrees to defend City. In the event City accepts Contractor's defense, City agrees to indemnify and reimburse Contractor on a pro rata basis for all expenses of defense and any judgment or amount paid by Contractor in resolution of such claim. Such pro rata share shall be based upon a final judicial determination of negligence or, in the absence of such determination, by mutual agreement. 10. Contractor shall indemnify City against legal liability for damages arising out of claims by Contractor's employees. City shall indemnify Contractor against legal liability for damages arising out of claims by City's employees. 11. Indemnity provisions will be incorporated into all contractual arrangements entered into by City for these Services and will protect City and Contractor to the same extent. 12. Upon completion of all services, obligations and duties provided for in the Agreement, or in the event of tennination of this Agreement for any reason, the terms and conditions of this Exhibit shall survive. Standard Insurance Requirements Page 2 of3 Exhibit C 13. To the maximum extent permitted by law, Contractor's liability for City's damage will not exceed the aggregate compensation received by Contractor under this Agreement or the maximum amount of professional liability insurance required by this Agreement, which ever is greater. II! Iii III III III III III III III III III III III III III III III III III III III III III III III III III III 11/ 11/ III III 11/ III III III III 11/ III III III Standard Insurance Requirements Page 3 of3 Exhibit C AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF CUPERTINO, CALIFORNIA AND NEIGHBORHOOD HOUSING SERVICES SILICON VALLEY EXHIBIT D ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA Termination of Agreementfor Certain Acts A. The City may, at its sole discretion, terminate this Agreement in the event anyone or more of the following occurs: 1. If a Contractor! does any of the following: a. Is convicted2 of operating a business in violation of any Federal, State or local law or regulation; b. Is convicted of a crime punishable as a felony involving dishonest/ ; c. Is convicted of an offense involving dishonesty or is convicted of fraud or a criminal offense in connection with: (1) obtaining; (2) attempting to obtain; or, (3) perfonning a public contract or subcontract; d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a City contractor or subcontractor; and/or, For purposes of this Agreement, the word "Contractor" (whether a person or a legal entity) means any of the following: an owner or co-owner of a sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venhlre; or a primary corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock ofa corporation] and who is active in the day to day operations of that corporation. For purposes of this Agreement, the words "convicted" or "conviction" mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere within the past five (5) years. As used herein, "dishonesty" includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy. Ethical Standards for Contractors Page I of2 Exhibit D e. Made (or makes) any false statement(s) or representation(s) with respect to this Agreement. 2. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Contractor can bt: imputed to the Contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the Contractor, with the Contractor's knowledge, approval or acquiescence, the Contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence. B. The City may also terminate this Agreement in the event anyone or more of the following occurs: 1. The City determines that Contractor no longer has the financial capabilitl or business experiences to perform the terms of, or operate under, this Agreement; or, 2. If City detennines that the Contractor fails to submit information, or submits false information, which is required to perform or be awarded a contract with City, including, but not limited to, Contractor's failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to purchase and maintain bonds and/or insurance policies required under this Agreement. C. In the event a prospective Contractor (or bidder) is ruled ineligible (debarred) to participate in a contract award process or a contract is terminated pursuant to these provisions, Contractor may appeal the City's action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Contractor will have the burden of proof on the appeal. The Contractor shall have the opportunity to present evidence, both oral and documentary, and argument. 4 Contractor becomes insolvent, transfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any section or chapter of the federal Bankruptcy Code (11 U .S.c.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all ofthe assets of Contractor. Loss of per sonne 1 deemed essential by the City for the successful performance ofthe obligations of the Contractor to the City. Ethical Standards for Contractors Page 2 of2 Exhibit D AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF CUPERTINO, CALIFORNIA AND NEIGHBORHOOD HOUSING SERVICES EXHIBIT E AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS [CITY OF CUPERTINO] I, Edward Moncrief, being first duly sworn, depose and say that I am the Executive Director of Neighborhood Housing Services Silicon Valley and I hereby state that I have read and understand the language, entitled "ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF CUPERTINO, CALIFORNIA" (herein "Ethical Standards") set forth in Exhibit D. I have authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records and I have made inquiry of those individuals potentially included within the definition of "Contractor" contained in the Ethical Standards. Based on my review of the appropriate documents and the necessary inquiry responses, I hereby state that neither the business entity nor any individual(s) belonging to a category identified in footnote #1 of Exhibit D [i.e., owner or co-owner of a sole proprietorship, general partner, person who controls or has power to control a business entity, etc.] has been convicted of anyone or more of the crimes identified in Exhibit D within the past five (5) years. The above assertions are true and correct and are made under penalty of perjury under the laws of the State of California. NOTARY'S ACKNOWLEDGMENT TO BE ATTACHED Please execute the affidavit and attach a notary public's acknowledgment of execution of the affidavit by the signatory. If the affidavit is on behalf of a corporation, partnership, or other legal entity, the entity's complete legal name and the title of the person signing on behalf of the legal entity shall appear above. Written evidence of the authority of the person executing this affidavit on behalf of a corporation, partnership, joint venture, or any other legal entity, other than a sole proprietorship, shall be attached. Affidavit of Compliance With Ethical Standards Exhibit E Page 1 of I