16-164 City of San Jose, Office of Equality Assurance, Consultant Services for Enforcement of the Minimum Wage OrdinanceCONSULT ANT SERVICES AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND THE CITY OF SAN JOSE
FOR ENFORCEMENT OF THE MINIMUM WAGE ORDINANCE
THIS AGREEMENT dated December 1, 2016 is by and between the CITY OF
CUPERTINO, a municipal corporation ("CITY"), and the CITY OF SAN JOSE, a municipal
corporation ("CONSULTANT"). Each of CITY and CONSULTANT are sometimes
hereinafter referred to as a "PARTY" and collectively as the "PARTIES".
WHEREAS, CITY is in need of specialized services in relation to enforcement of its
local minimum wage ordinance; and
WHEREAS, CONSUL TANT possesses the skill and expertise to provide the required
services;
NOW, THEREFORE , THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Services by CONSUL TANT
CONSUL TANT shall provide services in accordance with Exhibit "A" attached and
incorporated by reference . CONSULTANT shall determine the method, details and means
of performing the services upon consultation with the CITY.
2. Time for Performance
The initial term of this AGREEMENT shall be from January 1, 2017, to December 31 ,
2017, with the option to renew for two (2) one-year periods, unless otherwise terminated in
accordance with Section 16 of this AGREEMENT. CITY shall give CONSULTANT thirty
(30) days' notice of its intent to renew the AGREEMENT before commencement of the new
term. CONSULTANT shall deliver the agreed upon services to CITY as specified in Exhibit
"A", unless otherwise amended in writing by the PARTIES.
3 . Duties of CITY
CITY shall supply any documents or information available to CITY required by
CONSUL TANT for performance of its duties . Any materials provided shall be returned to
CITY upon completion of the work.
4 . Compensation
CITY agrees to pay CONSULTANT at the rates specified in the rate schedule
attached as Exhibit "B'', subject to annual escalations at the beginning of each fiscal year
upon mutual written agreement by the parties. Total compensation shall not exceed FIVE
THOUSAND DOLLARS ($5,000.00), unless authorized by the CITY's City Manager.
CONSULTANT shall submit invoices to CITY on a monthly basis based on work completed .
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5. Ownership of Documents
CITY shall have full and complete access to CONSUL TANT's working papers ,
drawings and other documents during performance of the services required hereunder. All
documents of any description prepared by CONSUL TANT shall become the property of the
CITY at the completion of the services and upon payment in full to the CONSULTANT.
CONSUL TANT may retain a copy of all materials produced pursuant to this AGREEMENT.
6 . Conflict of Interest
CONSUL TANT shall avoid all conflicts of interest, or appearance of conflict, in
performance of this AGREEMENT and agrees to immediately notify CITY in writing of any
facts that may give rise to a conflict of interest. CONSULTANT is aware of the prohibition
that no officer of CITY shall have any interest, direct or indirect, in this AGREEMENT or
in the proceeds thereof. During the term of this AGREEMENT , CONSUL TANT shall not
accept employment or an obligation wh ich is inconsistent or incompatible with
CONSULTANT'S obligations under this AGREEMENT.
7 . Confidential Information
CONSUL TANT shall maintain in confidence and at no time use, except to the extent
required by law or to perform its obligations hereunder, any and all proprietary or confidential
information of CITY of which CONSUL TANT may become aware in the performance of its
services .
8 .
9 .
Compliance with Laws
(a) CONSULTANT shall not discriminate against, or engage in the harassment
of, any CITY employee or volunteer or any employee of CONSUL TANT or
applicant for employment because of an individual's race, religion , color, sex,
gender identity, sexual orientation (including heterosexuality, homosexuality
and bisexuality), ethnic or national origin , ancestry, citizenship status ,
uniformed service member status , marital status, family relationship ,
pregnancy, age, cancer or HIV/AIDS-related medical condition , genetic
characteristics , and physical or mental disability (whether perceived or actual).
This prohibition shall apply to all of CONSUL TANT's employment practices
and to all of CONSULTANT's activities as a provider of services to the CITY.
(b) CONSULTANT shall comply with all federal , state and city laws, statutes,
· ordinances, rules and regulations and the orders and decrees of any courts
or administrative bodies or tribunals in any manner affecting the performance
of the AGREEMENT.
Independent Contractor
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CONSUL TANT is acting as an independent contractor in furnishing the services or
materials and performing the work required by this AGREEMENT and is not an agent,
servant or employee of CITY. Nothing in this AGREEMENT shall be interpreted or
construed as creating or establishing the relationship of employer and employee between
CITY and CONSUL TANT. CONSUL TANT is responsible for paying all required state and
federal taxes.
10 . Indemnity
This paragraph applies in lieu of Government Code Section 895.6. CONSUL TANT
shall indemnify and hold harmless CITY and its officers, officials, employees and volunteers
from and against all claims , damages , losses and expenses, including attorney fees, arising
out of the performance of the work described herein , caused in whole or in part by any
negligent act or omission of CONSUL TANT, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable , except where
caused by the active negligence , sole negligence , or willful misconduct of CITY.
CITY shall indemnify and hold harmless CONSUL TANT and its officers , officials ,
employees and volunteers from and against all claims , damages , losses and expenses,
including attorney fees , arising out of the performance of the work described herein, caused
in whole or in part by any negligent act or omiss ion of CITY , any subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be
liable, except where caused by the active negligence , sole negligence , or willful misconduct
of CONSUL TANT.
11. Insurance
Each PARTY is self-insured with respect to claims for which it bears responsibility
pursuant to this AGREEMENT, including but not limited to liability, automobile, and workers '
compensation insurance, as authorized under Government Code Section 990.4 and Labor
Code Section 3700 . Information concerning this self-insurance is publicly available .
12. Dispute Resolution
If a question arises regarding interpretation of this Agreement or its performance , or
the alleged failure of a party to perform , the party raising the question or making the
allegation shall give written notice thereof to the other party . The PARTIES shall promptly
meet in an effort to resolve the issues raised. If the PARTIES fail to resolve the issues
raised , alternative forms of dispute resolution , including mediation, may be pursued only by
mutual written agreement of the CITY and CONSULTANT. It is the intent of the PARTIES
to the extent poss ible that litigation be avoided as a method of dispute resolut ion .
13 . Notices
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All notices required by this AGREEMENT, other than invoices for payment which
shall be sent directly to CITY's Accounts Payable department as set forth in Exhibit C, shall
be in writing , and shall be personally delivered , sent by first class with postage prepaid, or
sent by commercial courier, addressed as follows:
To CITY: Jaqui Guzman
Deputy City Manager
City of Cupertino
10300 Torre
Cupertino, CA 95014
To CONSUL TANT: Nina Grayson
Office of Equality Assurance
City of San Jose
200 East Santa Clara St., Fifth Floor
San Jose, CA 95113
Nothing in this provision shall be construed to prohibit communication by more
expedient means, such as by telephone or facsimile transmission , to accomplish timely
communication. However, to constitute effective notice, written confirmation of a telephone
conversation or an original of a facsimile transmission must be sent by first class mail or
commercial carrier , or hand delivered . Each PARTY may change the add ress by written
notice in accordance with this paragraph . Notices delivered personally shall be deemed
communicated as of actual receipt ; mailed notices shall be deemed communicated as of
five (5) days after mailing , unless such date is a date on which there is no mail service . In
that event communication is deemed to occur on the next mail service day.
14 . Assignment
The PARTIES agree that the expertise and experience of CONSULTANT are
material consideration for this AGREEMENT. Neither PARTY shall assign or sublet any
portion of this AGREEMENT without the prior written consent of the other PARTY.
15. Termination
If CONSUL TANT defaults in the performance of this AGREEMENT, or materially
breaches any of its provis ions, CITY at its option may terminate this AGREEMENT by giving
written notice to CONSULTANT. If CITY fails to pay CONSULTANT, CONSULTANT at its
option may terminate this AGREEMENT if the failure is not remedied by CITY within thirty
(30) after written notification of failure to pay.
Without limitation to such rights or remedies as CITY shall otherwise have by law,
CITY also shall have the right to terminate this AGREEMENT for any reason upon ten (10)
days' written notice to CONSUL TANT. In the event of such termination, CONSUL TANT
shall be compensated in proportion to the percentage of services performed or materials
furnished (in relation to the total which would have been performed or furn ished) through
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the date of receipt of notification from CITY to terminate . CONSUL TANT shall present CITY
with any work product completed at that point in time .
16. Entire Agreement; Amendment
This writing constitutes the entire agreement between the PARTIES relating to the
services to be performed or materials to be furnished hereunder. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered
hereunder. No modification of this AGREEMENT shall be effective unless and until such
modification is evidenced by writing signed by all PARTIES .
17. Miscellaneous
Time shall be of the essence in this AGREEMENT. Failure on the part of either
PARTY to enforce any provision of this AGREEMENT shall not be construed as a waiver of
the right to compel enforcement of such provision or any other provision . This Agreement
shall be governed and construed in accordance with the laws of the State of California.
18 . CONSULT ANT's Books and Records
CONSUL TANT shall maintain any and all ledgers, books of account, invoices ,
vouchers , cancelled checks, and other records or documents evidencing or relating to
charges for services , or expenditures and disbursements charged to CITY for a minimum
period of three (3) years, or for any longer period required by law, from the date of final
payment to CONSUL TANT pu rsuant to this AGREEMENT .
CONSULTANT shall maintain all documents and records which demonstrate
performance under this AGREEMENT for a minimum period of three (3) years, or for any
longer period required by law, from the date of termination or completion of this
AGREEMENT.
Any records or documents required to be maintained pursuant to this AGREEMENT
shall be made available for inspection or audit at no cost to CITY , at any time during regular
business hours, upon written request by CITY's authorized representative. Unless an
alternative is mutually agreed upon, the records shall be available at CONSUL TANT's
address indicated for receipt of notices in this AGREEMENT.
19. Venue
In the event tha t suit shall be brought by either PARTY to this AGREEMENT, the
PARTIES agree that venue shall be exclusively vested in the state courts of the County of
Santa Clara, or if federal jurisdiction is appropriate , exclusively in the United States District
Court, Northern District of California, San Jose, California.
IN WITNESS WHEREOF , the PARTIES have executed this AGREEMENT on the
day and year first hereinabove written .
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CITY OF CUPERTINO ("CITY")
By tJ~K-
David Brandt , City Manager
APPROVED AS TO FORM :
APPROVED AS TO FORM : CITY OF SAN JOSE ("CONSUL TANT")
By---~_d----_
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JULIE EDMONDS-MA RES
Deputy City M anager
EXHIBIT "A"
SCOPE OF SERVICES
CONSUL TANT's Office of Equality Assurance (OEA) shall provide the following
services:
1. Answer general written and telephonic inquiries, requiring no research,
regarding City of Cupertino Minimum Wage Ordinance. Examples of general
inquiries include: wage rate, who is covered, how to file complaint, and
effective date .
2. Answer written and telephonic inquires, requiring research, regarding City of
Cupertino Minimum Wage Ordinance. All inquiries necessitating complex
legal advice or interpretation shall be referred to CITY's City Attorney.
3. Investigation of Claimed Violations
• Complaint intake via telephone, in writing or in person, including: name,
address, phone number, company, manager, type of work performed,
how/when paid, work schedule, rate of pay, copies of pay stubs, records
of hours worked .
• Visit Workplace
• Interview Workers
• Issuance of Notice of Complaint and Request for Documentation
o Letter to business -notify of complaint received & documents to be
provided by business within 10 days of notice date. Documents
include:
• Original time cards, sign-in sheets, ledgers, electronic
records and any payroll records which show actual hours
worked each day for each employee for the relevant period.
• Copies of payroll check stub details and/or itemized pay
stubs for each employees for the relevant period.
• List of former and current employees with addresses,
telephone numbers and job title/position, including
employment start and end dates .
• Review of Documents to Determine if Violation Exists and Calculate Back
Wages Owed, if applicable
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4. Violations
• Issuance of Notice of Violation & Opportunity to Correct
• If Business contests Notice of Violation :
o OEA Director's Decision -review information and documentation
and uphold, revise or dismiss Notice of Violation
• If Business contests OEA Director's Decision:
o Appellant to meet with CONSULTANT'S Public Works Director
o Issuance of CONSULTANT'S Public Works Director Decision
o Testify at City of Cupertino Administrative Hearing Process
o Testify at Court proceedings
5 . Meetings and other communications (telephone, email, etc.) between
CITY and CONSUL TANT as necessary or required by CITY .
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EXHIBIT "8"
TASK AND RATE SCHEDULE
TASK FEE PER
TASK
Inquiries
Answer general written & telephonic inquiries
from public (business owner or any employee)
requiring no research $31.00
Answer non-legal written & telephonic inquiries
from public (business owner or any employee)
requiring research $62.00
Investigation of Claimed Violation
Complaint Intake & Issue Notice of Complaint &
Request for Documentation $186.00
Visit Workplace & Interview Workers, if
applicable/necessary (per visit including travel $290.00
time)
Review Documents , Determine if Violation Exists,
Follow-Up & Calculate Back Wages Owed
1 to 5 workers $290 .00
6 to 20 workers $484 .00
21 and more workers $969 .00
Issue Notice of Violation & Opportunity to Correct $145 .00
Contesting Violation (Informal)
OEA Director Decision -review information &
documentation & either uphold, revise or dismiss
Notice of Violation $452.00
Business Owner Contests OEA Director Decision
Business Owner Appears at Meeting with
Consultant's Public Works Director. Consultant's
Public Works Director either upholds , revises or $545.00
dismisses Notice of Violation
Formal Enforcement
Preparation, appear and testify at Administrative
Hearing (including travel time) $151.00 per
hour
Miscellaneous
Any service outside tasks listed above; e.g .,
meetings & phone calls with City of Sunnyvale $151.00per
staff hour