14-001 Acterra OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE o C;UPERTINO, CA 95014-3255
LEI I TELEPHONE: (408)777-3223- FAX: (408)777-3366
C U P E RT I N O WEBSITE:www.cupertino.org
June 26, 2014
Re: Agreement for consultant services.
Enclosed is a fully executed copy of the above stated agreement with the City of Cupertino.
If you have any questions or need additional ini'ormation, please contact the Parks and
Recreation department at 408-777-3120.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Parks &Recreation
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NO.
FY 14-15
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ACTERRA FOR HABITAT
RESTORATION PROGRAMS CONTRACT SERVICES
This Agreement, for reference dated June 16, 2014, is by and between City o- �, ���
Cupertino, a municipal corporation (hereinafter referred to as "City"), and a
California State, Non-profit organization whose address is
(hereinafter referred to as "Consultant"), and is made with
reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the Constitution and the statutes of the State of California and
the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to perform the
special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement on the
terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for gymnastics
programs Services upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM:
The term of this Agreement shall commence on July 1, 2014, and shall terminate
on June 30, 2015, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A" which is
attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT;,
Consultant shall be compensated for services performed pursuant to this
Agreement in the amount set forth in Exhibit "C" which is attached hereto and
incorporated herein by this reference, not to exceed a total amount of twenty eight
thousand dollars ($28,000.00). Payment shall be made by checks drawn on the treasury
of the City, to be taken from the General fund.
4. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the Elssence regarding the performance of this
Agreement.
5. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate
with the prevailing standards of like professionals in the San Francisco Bay Area and
agrees that all services shall be performed by qualified and experienced personnel who
are not employed by the City nor have any contractual relationship with City.
6. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by this
Agreement is that of an independent contractor. The manner and means of conducting
the work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the express terms of this Agreement. No civil service
status or other right of employment will be acquired by virtue of Consultant's services.
None of the benefits provided by City to its employees, including but not limited to,
unemployment insurance, workers' compensation plans, vacation and sick leave are
available from City to Consultant, its employees or agents. Deductions shall not be
made for any state or federal taxes, FICA payments, PERS payments, or other
purposes normally associated with an employer-employee relationship from any fees
due Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees performing work hereunder,
pursuant*to all applicable IRCA or other federal, or state rules and regulations.
Consultant shall indemnify and hold City harmless from and against any loss, damage,
liability, costs or expenses arising from any noncompliance of this provision by
.Consultant.
8. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Consultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race, religious
creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy;
sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all
violations of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
A. Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend, and
hold harmless the City and its officers, officials, agents,' employees and
volunteers from and against any and all liability, claims, actions, causes of action
or,demands whatsoever against any of them, including any injury to or death of
any person or damage to property or other liability of any nature, whether
physical, emotional, consequential or otherwise, arising out, pertaining to, or
related to the performance of this Agreement by Consultant or Consultant's
employees, officers, officials, agents or independent contractors. Such costs and
expenses shall include, reasonable attorneys' fees of counsel of City's choice,
expert fees and all other costs and fees of litigation.
B. Claims for Other Liability. Consultant shall, to the fullest extent allowed
by law, with respect to all services peirfformed in connection with the Agreement,
indemnify,-defend, and hold harmless, the City and its officers, officials, agents,
employees and volunteers against any and all liability, claims, actions, causes of
action or demands whatsoever from and against any of them, including any injury
to or death of any person or damage to property or other liability of any nature,
that arise out of, pertain to, or relate to the negligence, recklessness,' or willful
misconduct of Consultant or Consultant's employees, officers, officials, agents or
independent contractors. Such costa and expenses shall include reasonable
attorneys' fees of counsel of City's choice, expert fees and all other costs and
fees of litigation. Consultant shall riot be obligated under this Agreement to
indemnify City to the .extent that the damage* is caused by the sole or active
negligence or willful misconduct of Cite, its agents or employees.
C. Claims involving intellectual property. In addition to the obligations set forth in
(A) and (B) above, Consultant shall indemnify, defend, and hold the City, its
elected and appointed officers, employees, and volunteers, harmless from and
against any Claim in which a violation of intellectual property rights, including but
not limited to copyright or patent rights, is alleged that arises out of, pertains to,
or relates to Consultant's negligence, recklessness or willful misconduct under
this Agreement. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert: fees and all other costs and fees of
litigation.
10. INSURANCE:
On or before the commencement of the term of this Agreement, Consultant shall
furnish City with certificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of,insurance coverage in compliance with
paragraphs 10 A, B, C, D and E. Such certificates, which do not limit Consultant's
indemnification, shall also contain substantially the following statement: "Should any of
the above insurance covered by this certificat=e be canceled or coverage reduced before
the expiration date thereof, the insurer affording coverage shall provide thirty (30) days'
advance written notice to the City of Cupertino by certified mail, Attention: City
Manager." It is agreed that Consultant shall maintain in force at all times during the
performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that iS acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum
limits.
Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate - all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $1,000,000 will be considered equivalent to the
required minimum limits shown above.
(3) Automotive:
Proof of automobile insurance required at the California statutory
minimums.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for which
he/she has'agreed to provide'comprehensive general and automotive liability insurance,
Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants
to City, on behalf of any insurer providing comprehensive.general and automotive
liability insurance to either Consultant or City with respect to the services of Consultant
herein, a waiver of any right to subrogation .which any such insurer of said Consultant
may acquire against City by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or maintain
the'foregoing insurance, City shall be permitted to obtain such insurance in the
Consultant's name or as an agent of the Consultant and shall be compensated by the
Consultant for the costs of the insurance premiums at the maximum rate permitted by
law and computed from the date written notice is received that the premiums have not
been paid.
D. - ADDITIONAL INSURED:
City, its City Council; boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance coverages,
except any professional liability insurance, required by this Agreement. The naming of
an additional insured shall not affect any recovery to which such additional insured
would be entitled under this.policy if not named as such additional insured. An
additional insured named herein shall not be held liable for any premium, deductible
portion of any loss, or expense of any nature on this-policy or any extension thereof..
Any other insurance held by an additional insured shall not be required to contribute
anything toward any loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient.to
protect Consultant. Consultant is advised to confer with Consultant's insurance broker
to determine adequate coverage for Consultant.
11. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perform
the services required by this Agreement. Consultant may be required to fill out a conflict
of interest form if the services provided under this Agreement require Consultant to
make certain governmental decisions or serve in a staff capacity*as defined in Title 2,
Division 6, Section 18700 of the California Code.of Regulations.
12. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement,
or any interest therein, directly or indirectly, by operation of law or otherwise, without
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prior written consent of City. Any attempt to do so without said consent shall be null and
void, and any assignee, sub-lessee, hypothecate or transferee shall acquire no right or
interest by reason of such attempted assignment, hypothecation or transfer. However,
claims for money by Consultant from City under this Agreement may be assigned to a
bank, trust company or other financial institution without prior written consent. Written.
notice of such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venture or syndicate member or cotenant, if Consultant is a partnership or joint venture
or syndicate or.co-tenancy, which shall result in changing the control'of Consultant,
shall be construed as an assignment of this Agreement. Control means fifty percent
(50%).or more of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City 'is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be
used in the performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall
be .required to furnish proof of workers' compensation insurance and shall also be
required to carry general, and professional liability insurance in reasonable conformity to
the insurance carried by Consultant. In addition, any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
14. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, certificates and that may be required in
connection with the performance.of services hereunder.
15. REPORTS:
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report", reproduced, prepared or
caused to be prepared by Consultant pursuant-to or in connection with this Agreement,
shall be the exclusive property of City. Consultant shall not copyright any Report
required by this Agreement and shall execute! appropriate documents to assign to City
the copyright to Reports created pursuant to this Agreement. Any Report, information
and data acquired or required by this Agreement shall become the property of City, and
a,ll publication rights are reserved to City. Consultant may retain a copy of any report
furnished to the City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in execution or
implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may require,
furnish reports concerning the status of-services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be printed on
recycled paper. All Reports shall be copied.can both sides of the paper except for one
original, which shall be single, sided.
E. No Report, information or other data given to or prepared or assembled by
Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without prior approval by City.
16. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts and other such information required by City that relate to the
performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in sufficient
detail to permit an evaluation of services. All such records shall be maintained in
accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Consultant shall provide free access to such books and records
to the representatives of City or its de-signees at all proper times, and gives City the
right to examine and audit same, and to make transcripts therefrom as necessary, and
to allow inspection of all work, data, documents, proceedings and activities related to
this Agreement. Such records, together with supporting documents, shall be kept
separate from other documents and records and shall be maintained for a period of
three (3) years after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's supplemental
examination or audit of the records discloses a failure to adhere to appropriate internal
financial,controls, or other breach of contract or failure to act in good faith, then
Consultant shall reimburse City for all reasonable costs and expenses associated with
the supplemental examination or audit.
17. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement
shall be given in writing and conclusively shall be deemed served_ when delivered
personally or on the second business day after the deposit thereof in the United. States
Mail, postage prepaid, registered or certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Consultant to City shall be
addressed to City-at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Director of Parks and Recreation
All notices, demands, requests, or approvals from City to Consultant shall be
addressed to Consultant at:
18. TERMINATION:
In the event Consultant fails or refuses t o perform any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default
in the performance of this Agreement. If such default is not cured within the time
specified after receipt by.Consultant from City of.written notice of default, specifying the
nature of such default and the steps necessary to cure such default, City may terminate
the Agreement forthwith by giving to the Con.E;ultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating
.this Agreement by giving thirty (30) days' prior written notice to Consultant as provided
herein. Upon termination of this Agreement, e,'ach party shall pay to the other party that
portion of compensation specified in this Agreement that is earned and unpaid prior to
the effective date of termination.
City has no obligation to.offer any of Consultant's services to participants, and,
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unless minimum enrollment for a particular class identified in the Scope of Services is
met, City may cancel that class without further notice to Consultant or payment under
this Agreement. The City in its sole discretion may determine*the type of classes, the
number of classes, and any assigned instructor. Consultant understands that this is an
non-exclusive agreement.
19. UTILITIES:
Consultant shall pay all charges for fuel, gas, water, electricity, telephone
services and any other utilities necessary to carry on the operations of
Consultant.
20. NUISANCE:
Consultant shall not maintain, commit, or permit the maintenance or commission
of any nuisance in connection with the performance of services under this
agreement.
21. SAFETY REQUIRMENT:
All work performed under this Agreement shall be performed in such a manner-
as to provide safety to the public and to meet or exceed the safety standards
outlined-by CAL-OSHA. City reserves -the right to .issue restraints or cease and
desist orders to consultant when unsai-e or harmful acts or conditions are
observed or reported relative to the performance of the work under this
Agreement.
22. COMPLIANCES:
Consultant shall comply with all state or federal Laws and all ordinances, rules
and regulations enacted or issued by City.
23. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State
of California excepting any choice of law ruler which may direct the application of laws
of another jurisdiction. The Agreement.and obligations of the parties are. subject to all
valid laws, orders, rules, and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities.)
Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Santa Clara, State of California.
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24. ADVERTISEMENT:
Consultant shall not post, exhibit, display or,allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any kind
pertaining to the services performed under this Agreement unless prior written approval
has been secured from City to do otherwise.
25. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained herein, whether of the same or a different
character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereof. Any modification of this
Agreement will be effective only by written execution signed by both City and
Consultant.
26. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement
shall be deemed to be enacted herein, and the Agreement shall be read and enforced
as thougheach were included. herein.,If through mistake or otherwise, any such }
provision is not inserted or is not correctly inserted, the Agreement shall be amended to
make such insertion on application.by either party.
27. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect,-limit or amplify the terms or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this modification of
Agreement to be executed.
CITY OF CUPERTINO
A Municipal Corporation
By Qm By Rachelle Sander
Title: S-�-WLIsILA; fv0-= �� tivtc- Title: Recreation Coordinator
Date: -3w,,.A-- V1 10 `A
RE,QOMMENDED F'OR APPROVAL:
1
D-recAer-of Parks and Recreation C- -�-
'� Date: G lg i
APPROVED AS TO FORM:
City Attorney
Date:
ATTEST:
r Citv Clerk
Date: L
EXPENDITURE DISTRIBUTION:
110-6347-9304 $28,000.00
Account NUmber Amount
EXHIBIT A
SCOPE OF SERVICES
In consultation with the City's Naturalist, Acterra will conduct the following land
stewardship services at McClellan Ranch Preserve/Blackberry Farm for the City of
Cupertino during the contract term:
1. Maintain previous restoration sites
a. Maintain the plants that have been installed over the past two years
b: Maintain the areas that were previously removed of invasives over the past two
years
c. Infill with a few plants in the 4H Hill of McClellan Ranch and Phase 1 areas of
Blackberry Farm if necessary
2.. Begin McClellan Riparian Meadow Enhancement Project
a. Conduct baseline survey and create detailed plan
b. Coordinate mowing with the city
c. Run volunteer workdays to manage invasives by hand and install native plants
d. Monitor and maintain project area
e. Outreach to community to recruit volunteers and provide environmental
education through our programs
f. Manage project and provide updates to city staff as well as other project partners
3. Outcomes
a. Baseline vegetation survey
b. Detailed project plan
c. Approximately 4,000 native plants installed in "islands"
d. At least 18 volunteer workdays
e. Over 250 volunteers will participate in habitat enhancement activities
f. 4 acres of meadow currently infested with invasive plants will be managed
g. Quarterly project updates
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EXHIBirr c
C OMPENSATION
City shall compensate Consultant for professional services in accordance
with the terms and conditions of this Agreement based on the rates and
compensation schedule set forth below. Compensation.shall be calculated
based on the hourly rates set forth below up to the not to exceed budget
amount set forth below'.
The compensation to be paid.to Consultant under this.Agreement.for all
services described in Exhibit "A' and reiimburs,able expenses shall. not
exceed a total of twenty-eight thousand dollars ($28,000.00). Any work
performed or expenses incurred for which payment would result in a total
exceeding the maximum. amount of compensation set forth herein shall be
at no cost to the City.
Invoices
Payment shall be made in four equal gUarterly installments. In order to
request payment, Consultant shall submit quarterly invoices in September,
December, March, and June of each year to the CITY describing the
services.performed and the applicable charges (including a summary of
work performed during that quarter, personnel who performed the services, k
hours worked, task(s) for which work w�is performed).
Reimbursable. Expenses
Administrative, overhead, secretarial time or overtime, word processing,
photocopying, in house printing, insurance, and other ordinary business
expenses are included within the scope of payment for services.and are not
reimbursable expenses.
Additional Services
Consultant shall provide additional services outside of the services
identified in Exhibit A only by advance written authorization from the City's
Project Manager prior to commencement of any additional services.
Consultant shall submit, at the Project Manager's request, a detailed
written proposal including a description of the scope of additional services,
schedule, and proposed maximum compensation.
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EXHIBIT B
Consultant shall perform the Services within a timeframe mutually agreed by the project
managers for Consultant and City, so long as all work is completed within the term of
the agreement.
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