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16-001 The Wilfred Jarvis Institute NO. �''.�' � .� _ '1 ��' �� FY 16-17 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND THE WILFRED JARVIS INSTITUTE FOR LEADERSHIP CONSULTANT SERVICES THIS AGREEMENT, for reference dated THURSDAY, AUGUST 25,2016, is by and between CITY OF CUPERTINO, a municipal corporation(hereinafter referred to as "City"), and THE WILFRED JARVIS INSTITUTE, a CALIFORNIA CORI'ORATION, 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 Leadership and Development consultant 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 WEDNESDAY, SEPTEMBER 7,2016, and shall terminate on THURSDAY, AUGUST 31,2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit"A" according to the project schedule set forth in Exhibit B, which exhibits are attached hereto and incorporated herein by this reference, in accordance with the terms and conditions set forth in this agreement. Consultant's Project Manager to represent consultant during the day-to-day work on the Project is Minh Le. Consultant's Project Manager shall have supervisory responsibility for the performance,progress, and execution of the Services. If circumstances cause the substitution of the project director,project coordinator, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new FY 2016/2017 1 or replacement personnel will be subject to the prior written approval of the City. Consultant, at City's request, also agrees to promptly remove personnel who City finds do not perform the Services in an acceptable manner. 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in the amounts set forth in Exhibit"C"which is attached hereto and incorporated herein by this reference. Consultant shall submit monthly invoices to the City in accordance with the provisions set forth in Exhibit "C." The total compensation to the Consultant shall not exceed FIFTEEN THOUSAND DOLLARS($ 15,000). 4. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence 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 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 nar 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. FY 2016/2017 2 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: 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 ar 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 wiliful 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 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. FY 2016/2017 3 A. COVERAGE: Consultant shall maintain the following insurance coverage: (1) Workers' Comvensation: 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: $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 FY 2016/2017 4 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 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 partner 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. 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. FY 2016/2017 5 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 licenses including,but not limited to, a City Business License, 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 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) 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 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 arganization by Consultant without priar 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 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 FY 2016/2017 6 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 Recreation and Community Services All notices, demands,requests, or approvals from City to Consultant shall be addressed to Consultant at: THE WILFRED JARVIS INSTITUTE, Attention: MINH LE 18. 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 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 FY 2016/2017 7 City in its sole discretion may determine the type of classes, the number of classes and the assigned instructor. 19. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances,rules and regulations enacted or issued by City. 20. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of Califomia 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. 21. 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. 22. 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. 23. 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. 24. 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. FY 2016/2017 g 25. 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. FY 2016/2017 9 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT CITY OF CUPERTINO A Municipal Corporation �� �%� .:. e., ' t�t�f1 By: MINH LE By: MOLLY JAMES Title: PRESIDENT Title: RECREATION COORDINATOR Date: ������/�� Date: C , � / ' RECOMMENDED FOR APPROVAL: .,,` ;: � ,� ; s By: CHRfSTINE HANEL Title: ACTING DIRECTOR OF RECREATION & COMMUNITY SERVICES APPROVED AS TO FORM: � �� � � RANDOLPH STEVENSON HOM � CITY ATTORNEY ATTEST: `� �Q!/j .JJ.� �P� �i_ l � GRACE SCHMIDT � CITY CLERK � �� EXPENDIT`URE DISTRIBUTION: Account No: 100-62-608 700-702 Amount: $15,000 FY 2016/2017 10 EXHIBIT A CONSULTANT SERVICES TO BE PERFORMED Consultant shall complete the tasks described in this exhibit for the Leadership 95014 program as directed by City's Senior Recreation Supervisor, Christine Hanel, and consistent with the project schedule set forth in Exhibit B. 1. Prepare and facilitate the two-day kick-off session for Leadership 95014 program. 2. Supply the program participants with licensed material in a format that they can use on their laptop or tablet computer. 3. Attend at least the final hour of each of the monthly sessions to provide additional training, facilitation and reinforcement of learning. This helps the practices become habits for participants. 4. At the final program session,Consultant will bring the interactive group technology to conduct a two-hour brainstorming meeting to: - Collect for each participant Keep stop Start feedback/recommendations from his/her classmates(from 9 months of time together) - Collect Keep Stop Start feedback/recommendations for the program organizers to help improve what we do next year. 5. In coordination with the City, facilitate the program graduation ceremony,participate in program committee meetings, and assist with enrollment activities free of charge, and provide one on one coaching and consultation for program participants free of charge. Performance of CONSULTANT Services: City shall have no right of control as to the manner Consultant performs the services to be performed. Nevertheless, City may, at any time, observe the manner in which such services are being performed by the consultant. FY 2016/2017 11 EXHIBIT B SCHEDULE OF PERFORMANCE Consultant shall perform the Services within a timeframe mutually agreed by the program supervisor for Consultant and City, so long as all work is completed within the term of the Agreement. Scheduled dates for 2016/17 program are: Program Schedule-2016/17 Wed. Sept. 7, 2016 Kick-Off Retreat—Day 1 Thurs. Sept. 8, 2016 Kick-Off Retreat-Day 2 Thurs. Oct. 13,2016 Getting Involved In Cupertino/Supervision with Minh Thurs. Nov. 10, 2016 Role of First Responders in our Community Thurs. Dec. 8, 2016 Will Cupertino Always Be at the Head of the Class? Thurs.Jan. 12, 2017 Business in Cupertino T'hurs. Feb. 9, 2017 Healthcare at EI Camino Hospital Thurs. March 9, 2017 Cost of Going Green Thurs. Apri16, 2017 Ethical Leadership/Social Sector Thurs. May 11, 2017 Graduation and Group Presentations Please Note: Dates are confirmed;however, session themes are tentative and may change. Daily sessions are scheduled from 8:30am-4:30pm. Morning refreshments and lunch are provided at each session. The 2-day kick off retreat on September 7 and 8 will meet from 8:30am-4:30pm. FY 2016/2017 12 EXHIBIT C COMPENSATION City shall compensate Consultant for professional services in accardance 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 reimbursable expenses shall not exceed fifteen thousand dollars ($15,000.00). 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. Rates Consultant has agreed to provide services at the following discounted rates for this program: Minh Lee Work with groups/team training: $225/hour Royalty Fees: $135/per participant Technology: $675 for computer use on Graduation Day Invoices In order to request payment, Consultant shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including an identification of personnel who performed the services,hours worked, task(s) for which work was performed, hourly rates, and reimbursable expenses),based upon Consultant's billing rates. Reimbursable Exvenses Administrative,overhead,secretarial time or overtime,ward 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. City shall reimburse consultant for reasonable travel. Travel expenses are limited to the lesser of actual expenses or expenses that would be authorized for City employee travel pursuant to City policy. Additional Services Consultant shall provide additional services outside of the services identified in Exhibit A only by advance written authorization from the City's senior Recreation Supervisor prior to commencement of any additional services. Consultant shall submit, at the Senior Recreation Supervisor's request, a detailed written proposal including a description of the scope of additional services, schedule, and proposed maximum compensation. FY 2016/2017 13