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16-033 National Golf Foundation Consulting, Inc., Consultant Services for Blackberry Farm Golf CourseAGREEMENT BETWEEN THE CITY OF CUPERTINO AND NATIONAL GOLF FOUNDATION CONSULTING FOR CONSULTANT SERVICES FOR BLACKBERRY FARM GOLF COURSE THIS AGREEMENT, for reference dated March 22, 2016, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and National Golf Foundation Consulting, Inc. whose address is 1150 South U.S . Highwfly 50/. /J. Gne, Snib;i 40-l-, Jupiter, FL 33477 (hereinafter referred to as "Consultant"), and is made I-fl (;-JJ.lrdt/ A1A with reference to the following: RECITALS: A . City is a municipal corporation duly organiz ed 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. Cons ultant i s s pecially trained, experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possesse s 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 golf course consulting services relating to City's Blackberry Farm Golf Course 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 the date this agreement is executed and shall terminate on February 1, 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" titled "Scope of Servi ces" which is attached hereto and incorporated herein by this reference. Page 1 o f 15 City of Cupe rtino-NGF Agreem e nt 3. SCHEDULE OF PERFORMANCE: The Services of Consultant are to be completed according to the schedule set out in Exhibit B, titled "Schedule of Performance ", which is attached hereto and incorporated herein by this reference. 4. COMPENSATION TO CONSULTANT: The maximum compensation to be paid to Consultant under this agreement shall not exceed Fifteen Thousand Dollars ($15,000.00). The rate of payment is set out in Exhibit C, titled "Compensation", which is attached hereto and incorporated herein. Consultant shall furnish to City a detailed statement of the work performed for compensation during the term of this Agreement. Consultant may submit monthly invoices for interim progress payments during the course of each phase, clearly stating as a minimum the total Contract amount, amount paid to date, percent complete and amount due. 5. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. 6. 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 an,Y contractual relationship with City . 7. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of employer-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. P age 2 of 15 C ity o f Cupertino-NGF Agreem e nt 8. 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. 9. 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. 10. PROTECT COORDINATION CITY: Director of Recreation and Community Services shall be representative of City for all purposes under this Agreement. The Park Improvement Manager (Gail Seeds) is hereby designated as the Director of Recreation and Community Services' designee and Project Manager, and shall supervise the progress and execution of this Agreement. CONSUL TANT: Consultant shall assign a single Consultant Project Manager to have overall responsibility for the progress and execution of this Agreement for Consultant. Should circumstances or conditions subsequent to the execution of the Agreement require a substitute Consultant Project Manager for any reason, the Consultant Project Manager designee shall be subject to the prior written acceptance and approval of the City Project Manager. The designated Consultant Project Manager shall be Ed Getherall. 11. HOLD HARMLESS: Indemnification: A. Claims for Professional Liability. Where the law establishes a standard of care for Consultant's professional services, and to the extent the Consultant breaches or fails to meet such established standard of care, or is alleged to have breached or failed to meet such standard of care, Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the · P age 3 o f 15 City o f Cupertino-NGF Agreem en t 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, 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 costs 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 not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole negligence or willful misconduct of City, its agents or employees . B. Claims for Other Liability . 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, that arise out of, pertain to, or relate 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. 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 paragraph 12A, 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 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. Page 4 o f 15 City o f Cupertino-NG F Ag ree m ent A . COVERAGE: Consultant shall maintain the following insurance coverage: B. (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: Comprehensive automotive liability coverage m the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence (4) Professional Liability: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000 . SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensiv e 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 b y the P age 5 o f 15 C ity o f C u pertino-NGF Agreem ent 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 comm1ss1ons, 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 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. Page 6 o f 15 City of Cupertino-NGF Agreement 15. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names are included in 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, automobile 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) 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 organization by Consultant without prior approval by City. Page 7 of 15 City of C upertino-NGF Agreement F. Electronic and hard copies of Consultant's work product shall constitute the Project deliverables. Plans to be in CAD and PDF formats, and other documents to be in Microsoft Word and PDF formats. City holds Consultant harmless for any modifications to the documents. 18. 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 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. 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, Dept. of Recreation & Community Services 10185 North Stelling Road Cupertino CA 95014 Attention: Ms. Carol Atwood All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: P age 8 o f 15 City of Cupe rtin o -N GF Ag r ee m ent National Golf Foundation Consulting, Inc . .J.150 South U.S. Highway One, Suite 401 50/ N, HIQ!lwltf A-J. A Jupiter, FL 33477 Attn.: Mr. Ed Getherall 20. TERMINATI O N: 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 seven (7) 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. In the event of termination, Consultant shall deliver to City, copies of all reports, documents, and other work performed by Consultant under this Agreement. 21. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. A. PREY AILING WAGES: To the extent applicable, Contractor shall comply with the City's Labor Compliance Program and all other requirements set forth in Labor Code section 1770 et seq. Contractor shall pay prevailing wages. Contractor will submit monthly certified payroll records to the City for all employees and subcontractors in a preapproved format or a City provided form . Any delay in remitting certified payroll reports to the City upon request from the City will result in either delay and/or forfeit of outstanding payment to Contractor. B. WORKING DAY: To the extent applicable, Contractor shall comply with California Labor Code Section 1810, et seq. which provides that work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, must be compensated as overtime, at not less than 1 ½ times the basic rate of pay. C. PAYROLL RECORDS: To the extent applicable, Contractor shall comply with California Labor Code Section 1776 which requires certified payroll records be maintained with the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages Page 9 of 15 City of C upertino-NGF Agreement paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with this Agreement. The Payroll Records shall be made available for inspection as provided in California Labor Code Section 1776. D. APPRENTICES: To the extent applicable, Contractor shall comply with California Labor Code Section 1777.5 regarding apprentices. 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 b y 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. Pa ge 10 of 15 City of Cupe rtino-N GF Agreement 26. GIFTS: A. Consultant is familiar with City's prohibition against the acceptance of any gift by a City officer or designated employee, which prohibition is found in City Administrative Procedures. B. Consultant agrees not to offer any City officer or designated employee any gift prohibited by the Administrative Procedures. C. The offer or giving of any prohibited gift shall constitute a material breach of this Agreement by Consultant. In addition to any other remedies, City may have in law or equity, City may terminate this Agreement for such breach as provided in Section 19 of this Agreement. 27. 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. 28. 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. Page 11 o f 15 City of Cupertin o-NGF Agreem ent P.O. No.: J oi (t;-5 \ I IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT National Golf Foundation Consulting, Inc. By a ~Ii# Name: Ed Getherall Title: Sr. Director of Operations Date i1b-,/zo1(p I J Tax I.D. No .: 65-0074324 Address: 1150 S. U.S. Hwy. 01te, Suite 401 Jupiter, FL 33477 So/ N. Hlf,tfwl3/ A1A .j()_/)(1€£1 FL 3 3Vl7 City of Cupertino-NGF Agreem ent CITY OF CUPERTINO A Municipal Corporation By Ct;~ ~ Carol Atwood, Director of Recreation & Community Services Date -3 -2-9 -lb APPROVED AS TO FORM: ATTEST: Grace Schmidt, City Clerk L(-J--f b Contract Amount: $15,000 .00 Account No .: 5<oo J <a 3 -&J lR ]-CP -7(n.._ P age 12 of 15 EXHIBIT A SCOPE OF SERVICES Subcontractors may be used for specialty aspects of the work. Acceptable subconsultants include: • Forrest Richardson, ASGCA, of Forrest Richardson & Associates, Phoenix AZ • Brian Curtis, of Brian Curtis Studio Design, clubhouse architect, Scottsdale AZ Scope of Services is to consist of tasks noted below. A. Prepare for and attend a City Council study session April 2016 to present a conceptual plan for the Blackberry Farm Golf Course and associated amenities for inclusion in the Stevens Creek Corridor Master Plan. Goals include creating a sustainable golf course, and a new multi- use clubhouse/restaurant-banquet-meeting facility/pro shop which will appeal to multiple user groups and serve both golfers and the local community. The concept will be incorporated in the preferred alternative for the Stevens Creek Corridor Master Plan and will be used for environmental impact analysis and the environmental clearance process. Ed Getherall and Forrest Richardson are to attend the study session. B. Prepare for and attend a subsequent City Council meeting in 2016 anticipated to occur in conjunction with adoption of a final master plan and associated environmental clearance documents. Be prepared to present respond to present Ed Getherall and Forrest Richardson are to attend the study session. C. Respond to direction received from City Council regarding the golf course and adjacent areas. Incorporate modifications to the conceptual plan and NGF's existing associated written evaluations/reports as needed. Collaborate with city staff and city consultant MIG to develop information and data for the Master Plan and environmental analysis. Among the tasks may be: • Provide turf area reduction data, naturalized area data, tree removal information, recommended new plantings, and similar information, suitable for environmental impact analysis • Collaborate on parking and on circulation elements • Provide input to project team members and participate in teleconferencing • Respond to questions raised during review of the master plan or the associated environmental clearance documents • Provide direction as requested regarding golf course aspects of the master plan Page 13 of 15 City of Cupertino-NGF Agreement EXHIBIT B SCHEDULE OF PERFORMANCE Services are to be performed in collaboration with City timeframes for the Stevens Creek Corridor Master Plan preparation process cµrrently underway and the associated environmental review process, and in collaboration with work being performed by City's consultant team for the Stevens Creek Corridor Master Plan project including associated Commission and City Council reviews and actions. City Council meeting noted for Task A is anticipated April 2016. City Council meeting noted for Task Bis anticipated for Fall 2016. Timing of draft en v ironmental clearance documents is anticipated for summer and fall 2016 ; adoption b y the City Council of environmental clearance and/or master plan is anticipated late 2016. Page 14 o f 15 Ci ty of Cupe rtino-NGF Agreement EXHIBIT C COMPENSATION Fee for Basic Services, not to exceed: Task A: not to exceed $4,000.00 Includes all costs and expenses including travel expenses Task B: not to exceed $4,000.00 Includes all costs and expenses including travel expenses Task C: not to exceed $2 ,000.00, to be billed hourly on a time and materials basis Additional Services Allowance, to be expended only upon written authorization by City: Total Not-to-Exceed Fee: $10,000.00 $5,000.00 $15,000.00 Serv ices b y Ed Getherall of National Golf Foundation (NGF) will be billed at $200 per hour. Services by Forrest Richardson, Forrest Richardson & Associates, subcontractor to NGF, will be billed at $200 per hour. The hourly rate shall include administrativ e support, office expenses, telecommunication, reproduction, expenses related to production of evaluations and reports, overhead costs, and direct and indirect expenses except for reimbursable expenses noted below. Reimbursable ex penses will include direct costs incurred for travel requested for attendance at meetings or site visits that are above and bey ond meeting attendance noted in Task A and Task B. Reimbursable expenses may also include reproduction of color graphics or presentation materials larger than 11"xl7" if requested b y City. The base scope of work is estimated to require up cost 10,000.00 inclusive of travel expenses. Compensation for potential additional services beyond the scope of basic services is not to exceed $5,000.00. Additional services shall be provided only upon advance written authoriz ation b y City . Total compensation to be provided under this Agreement shall not exceed $15,000.00. Page 15 of 15 City of C upertin o -NGF Agr eem ent