16-001 Wright Way ShotokanNO._~J,o_(~1--_'_f~J-
FY 16-17
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
WRIGHT WAY SHOTOKAN
FOR KARATE CLASSES
THIS AGREEMENT, for reference dated WEDNESDAY, JUNE 8, 2016, is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and
WRIGHT WAY SHOTOKAN, a CALIFORNIA CORPORATION, whose address is
(hereinafter referred to as "Consultant"), and is made
with reference to the following:
RECITALS:
A. City is a mw1icipal corporation duly organized and validly existing w1der the
laws of the State of California with the power to carry on its business as it is now being
conducted w1der the Constitution and the statutes of the State of California and the Cupertino
Mw1icipal 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, backgrow1d, 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 KARATE CLASSES
upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed b y and between the w1dersigned parties as
follows:
1. TERM:
The term of this Agreement shall c01mnence on FRIDAY, JULY 1, 2016, and shall
terminate on FRIDAY, JUNE 30, 2017, muess 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 artd incorporated herein b y this reference.
3. COMPENSATION TO CONSUL TANT:
Consultant shall be compensated for services performed pursuant to this Agreement in
the amount set forth below and as described in Exhibit "A" w hich is attached hereto and
incorporated herein by this reference.
FY 2016/2017 1
Classes: 30 Min Classes:
60 Min Classes:
$3.75 per participant per class meeting
$5 .25 per participant per class meeting
The City will issue no more than two payments per quarter and, if needed, one final
payment at the end of _this agreement to close the account.
In the event that less than the required minimum number of participants shall request
and pay for services prior to the agreed upon time for the commencement of services to be
performed by Contractor, City may cancel and withdraw from this Agreement. The total
compensation to the Consultant shall not exceed TWENTY-FIVE THOUSAND DOLLARS
($25,000).
4. ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS:
Consultant shall comply with the requirements of California Penal Code 11164-11174.3
and as set forth in Exhibit "B" which is attached hereto and incorporated herein by this
reference.
5 . FINGERPRINT & TUBERCULOSIS (TB) CONSULTANT DECLARATION:
Consultant agrees that all individuals covered under this Agreement shall provide
fingerprints for criminal background test purposes and results of TB screening, pursuant to the
requirements as set forth in Exhibit "C" which is attached hereto and incorporated h erein by
this reference.
6. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the performance of this
Agreement.
7. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of specially trained 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 .
8. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by this
Agreement is that of an independent contractor. The mam1er 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 virh1e 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
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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.
9. 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.
10 . 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.
11. HOLD HARMLESS:
Consultant shall, to the fullest extent allowed by law, with respect to all services performed in
connection with the Agreement, indemnify, defend, and hold harmless the City and its officers,
officials, agents, employees and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them, including any injury to or death of
any person or damage to property or other liability of any nature, whether physical, emotional,
consequential or otherwise, arising out, pertaining to, or related to the performance of this
Agreement by Consultant or Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's
choice, expert fees and all other costs and fees of litigation.
In addition to the obligations set forth above, Consultant shall indemnify, defend, and hold the
City, its elected and appointed officers, employees, and volunteers, harmless from and against
any Claim in which a violation of intellectual property rights, including but not limited to
copyright or patent rights, is alleged that arises out of, pertains to, or relates to Consultant's
negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses
shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs
and fees of litigation.
12. INSURANCE:
On or before the commencement of the term of this Agreement, Consultant shall furnish
City with certificates showing the type, amount, class of operations covered, effective dates and
dates of expiration of insurance coverage in compliance with the paragraphs below . Such
certificates, which do not limit Consultant's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this certificate be canceled
or coverage reduced before the expiration date thereof, the insurer affording coverage shall
provide thirty (30) days' advance written notice to the City of Cupertino by certified mail,
Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during
the performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is acceptable to City and licensed to do insurance
business in the State of California. Endorsements naming the City as additional insured shall be
submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage, including sexual abuse and
molestation coverage, in the following minimum limits:
Bodily Injury:
Property Damage:
$500,000 each occurrence
$1,000,000 aggregate -all other
$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.
13. 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.
14. 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 prior written
consent of City. Any attempt to do so without said consent shall be null and void, and any
assignee, sublessee, 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 parh1er or joint venturer or
syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or
cotenancy, 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.
15. 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.
16. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City
Business License, that may be required in connection with the performance of services
hereunder.
17. 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 all 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)
(2)
(3)
(4)
The original Project for which Consultant was hired;
Completion of the original Project by others;
Subsequent additions to the original project; and/or
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 on 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.
18. RECORDS:
Consultant shall maintain complete and accurate records with resp e ct 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 designees at all proper times, and gives City the right to examine and audit same, and to
make transcripts therefrom as necessary, and to allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records, together with supporting
documents, shall be kept separate from other documents and records and shall be maintained
for a period of three (3) years after 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 e xamination or audit.
19. 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 Recreation and Community Services
All notices, demands, requests, or approvals from City to Consultant shall be addressed
to Consultant at: , Attention: MARK WRIGHT.
20. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions hereof at the
time and in the manner required hereunder, Consultant shall be deemed in default in the
performance of this Agreement. If 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
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default and the steps necessary to cure such default, City may terminate the Agreement
forthwith by giving to the Consultant 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, each 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, 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 the
assigned instructor.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and
regulations enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules 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.
23 . 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.
24. 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.
25. 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 though each
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.
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IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT CITY OF CUPERTINO
~~L'.
By: MARK WRIGHT By:
Title: OWNER Title: RECREATION COORDINATOR
Date: t ' ~ 2 3 ,...26/k
' '
Date:
RECOMMENDED FOR APPROVAL :
Byo~NS
Title: RECREATION SUPERVISOR
APPROVED AS TO FORM:
~~I~
GRACE SCHMIDT / -I J -/ &,
CITY CLERK
EXPENDITURE DISTRIBUTION:
Account No: 580-63-620-700-702
Amount: $25,000
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EXHIBIT A
CONSULTANT SERVICES TO BE PERFORMED
The CONSULT ANT will provide KARA TE CLASSES in, but not limited to, the follo w ing
programs:
KARATE TOTS, KIDZ KARATE: BEGINNING & KIDZ KARATE: ADV AN CED
Location and Time of CONSULT ANT Services:
Refer to the Recreation Schedule dated 2016 SUMMER (JULY/AUGUST CAMPS), 2016 FALL,
2017 WINTER, 2017 SPRING JUNE CAMPS for agreed upon dates, times, and class locations.
By Mutual agreement of both parties, class schedule may change.
Eligible Participant Minimum and Maximums for CONSULTANT Services:
Minimum: 5
Maximum: 30
If less than the required minimum number of participants enroll in and pay for a particular
class as identified in the schedule before the class is scheduled to start, the City may cancel the
particular class and/or terminate this Agreement without additional notice or payment to
Consultant.
Performance of CONSULT ANT Services:
City shall have no right of conh·ol as to the manner Consultant performs the services to be
performed . Nevertheless, City may, at any time, observe the maimer in which such services are
being performed by the consultant.
The Consultant shall follow all guidelines pertaining to registration procedures as listed in the
quarterly recreation schedule. Participants may not take part in the program unless they are
listed on the class roster or can show proof of enrollment. All participants and volunteers need
to complete the City's Waiver of Liability form prior to taking part in the program . Contractors
are responsible for supervising minors after class until a parent of legal guardian has arrived .
In the event of an injury occurring to a participant, the Consultant will notify the City within 1
hour and complete an Incident Report in the form approved by the City. The Incident Report
must be submitted to the City within 24 hours of the injury occurring.
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EXHIBIT B
ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS, RECEIPT OF
TRAINING, AND RECEIPT OF PENAL CODES STATUTES
A mandated reporter is an individual who is obligated by law to report suspected cases of child
abuse and neglect. In general, any individual who, in the ordinary course of their employment,
has contact with children is a mandated reporter. Mandated reporters include child care
workers, teachers and coaches. (California Penal Code 11165.7).
If your job duties as an employee or an independent contractor of WRIGHT WAY SHOTOKAN
include contact with children, you are a Mandated Reporter. Prior to commencing employment
and as a prerequisite of that employment, California law requires that you sign a statement to
the effect that you have knowledge of the provisions of the Mandated Reporter Law, and will
comply with those provisions. (California Penal Code 11166.5).
The following are the Mandated Reporter responsibilities under California law. You are also
being provided with a separate informational document which includes the text of the
California Mandated Reporter Law and contact information for Child Abuse and Neglect
Reporting for the County of Santa Clara. Please review this information carefully and
acknowledge your receipt and understanding where indicated. If you have questions or
concerns about this form or your Mandated Reporter responsibilities, please contact the
Recreation Supervisor at 408-777-3120.
I understand that:
• By virtue of my employment or independent contractor status with WRIGHT
WAY SHOTOKAN, and because my employment requires me to have contact
with children, I am a Mandated Reporter as defined by California Penal Code
11165.7.
• The following situations trigger mandatory reports: a) Physical Abuse (willful
harming of a child); b) Sexual abuse including sexual assault, child exploitation,
pornography, and trafficking; c) Severe or General Neglect; and d) Extreme
Corporal Punishment (resulting in injury). (Cal. Pen . Code 11165 et. seq.) I
further understand that I may, but am not required to, report suspected
Emotional Abuse.
• If I reasonably suspect that a child is beir1;g abused, I must immediately make a
telephone report. I must follow up with a written report within 36 hours. This
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report may be made to local law enforcement, or County Sheriff's Department,
Probation Department or Child Welfare Agency. (Cal Pen. Code 11166(a)).
• I am not required to, but I may, share information about suspected abuse with
my supervisor or management or the parents of the alleged victim.
o When I make a mandated report, I will be required to give my name. However,
my identity will be kept confidential unless I either consent to disclosure or if the
disclosure is made pursuant to a court order. Further, agencies investigating the
mandated report may disclose my identity to one another. (Cal Pen. Code
11167(d)).
• The following agencies and individuals receiving or investigating mandated
reports may disclose my identity to one another:
o Prosecutors in a criminal prosecuting or in an action initiated under
section 602 of the Welfare and Institutions Code arising from alleged
child abuse;
o Counsel appointed pursuant to subdivision (c) of Section 317 of the
Welfare and Institutions Code;
o A licensing agency when abuse or neglect in out-of-home care is
reasonably suspected. (Cal Pen. Code 11167.5)
• I may not be disciplined, dismissed, retaliated against, discriminated against or
harassed for making a mandated report of reasonably suspected child abuse.
• As a Mandated Reporter, I have civil and criminal immunity when making a
report (Cal Pen. Code 11172).
• As a Mandated Reporter, it is a misdemeanor to fail to comply with Mandated
Reporting laws and I can be held criminally liable for failing to report
suspected abuse. The penalty for this is up to six months in County jail, a fine of
not more than $1000, or both . I further understand I could be civilly liable for
failure to report. (Cal. Pen. Code 11166(c)).
I have been provided with a copy of California Penal Code sections 11164-11174.3 (Mandated
Reporter Law).
I understand that I am a legally Mandated Reporter. I am aware of and understand my
responsibilities under the Mandated Reporter laws of this state and am willing and able to
comply. I understand that a copy of this Acknowledgement will be kept in my personnel
file.
Name (Signature) Date
Name (Print)
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EXHIBIT C
City of Cupertin o Consu lta nt Declarati on
The undersigned does hereby certify that:
1. I am a representative of WRIGHT WAY SHOTOKAN; that I am familiar with the facts
herein and am authoriz ed and qualified to execute this declaration.
2. I declare that WRIGHT WAY SHOTOKAN has complied with fingerprinting and
criminal background investigation requirements with respect to all Consultant's
employees who may have contact with minors in the course of providing services
pursuant to the Agreement, and the California Department of Justice has determined
that none of those employees has been convicted of a felony, as that term is defined in
California Penal Code Section 11105 .3 .
3. That a complete and accurate list of Consultant's employees, who may come in contact
with minors during the course and scope of the Agreement, are included below.
4. All of the below mentioned employees have tested negative for TB, or X-ray results for
TB, and have current documentation on file with Consultant.
5. All of the below mentioned employees have received training and understand their
responsibilities under the Mandated Reporter laws of this state and are willing and able
to comply.
A List of all Consultant Employees Working for the City of Cupertino (if no Employees, identify "self":
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6. The City of Cupertino will be notified by Consultant in writing of any new employees
and will be added to the above list prior to beginning work at the City of Cupertino .
I declare under penalty of perjury that the foregoing is true and correct:
t -2.J -J.6/{ s J
Date Place Consultant Signature Title