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17-001 San Francisco Shakespeare Festival - Consultant Services NO. FY 17-18 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND Ii THE SAN FRANCISCO SHAKESPEARE FESTIVAL ! FOR CONSULTANT SERVICES THIS AGREEMENT,for reference dated, Tuesday,July 11, 2017, is by and I between CITY OF CUPERTINO, a municipal corporation (hereinafter' referred to as "City"), and THE SAN FRANCISCO SHAKESPEARE FESTIVAL, .4 CALIFORNIA NON-PROFIT ORGANIZATION, whose address is P,10. Box 460537, San Frahcisco, CA 94146 (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 I 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, ! cert fication and knowledge to provide the services described in this;Agreement on the terms a�d conditions described herein. D. City and Consultant desire to enter into an agreement for upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between tl;e undersignedp,larties as follows: 1. TERM- The terT of this Agreement shall commence on Sunday,July:16,2017, and shall termmat� on Friday, August 11, 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" t which is attacln'ed hereto and incorporated herein by this reference. i FY 207/2018 ................................. ....................... ............ ................ ......;..................... .......... .................................. i I COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in the amount set forth below and as described in Exhibit"A"which is attached hereto and incorporated herein by this reference. Compensatiori: Compensation:$30,000.00 Payment in full will be issued July 1, 2017, 4. TIME fS 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 man er commensurate with the prevailing standards of specially trained prpfessionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and Oxperienced personnel who are not employed by the pity nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Consultant intend that the relationship between thein created by this Agreement is that of an independent contractor. The manner azd means of conducting th'work are under the control of Consultant, except to the extent thea are limit'd by statute, rule or regulation and the express terms!of this Agleement. No civil service status or other right of employment will be acquired by virtue of Cpnsultant's services. None of the benefits provided by City to its employees, including but not limited to,unemployment insurance, 'workers' con 1pensation'plans, vacation and sick leave are available from.City to Consultant, its employees or agents. Deductions shall not be made for any state or f�deral taxes,FICA payments,PERS payments, or other purposes normally associated with an employer-employee relationship from any fees dile Consultant. Payments of the above items, if required, are the responsibility of Consultant. 7. IMMIGRATION REFORM AND CONTROL ACT (IBCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees perforrnirlg work hereunder, pursuant to all applicable IRCA or other federal, or state rules and reg-ilations. Consultant shall indemnify and hold City harmless from and against any loss, damage,liability, costs or expenses arising from any FY 2C17/2018 i noncompliance of this provision by Consultant. I 8. NON-DISCRIMINATION: Consist rut with City's policy that harassment and discrimination are unacceptable e}nployer/employee conduct, Consultant agrees that harassment or discriminationjdirected toward a job applicant, a City employee, or a citizen by Con sultant or consultant's employee or subcontractor on the basis of race, religious creed! color, national origin, ancestry,handicap, disability,inarital 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. I 9. HOLD HARMLESS: Consultant shall, to the fullest extent allowed by law, with tespect 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 thein,including any injury to or death of any person or damage to proaerty or other liability of any nature, whether physical, emotional, consequential I or otherwise, arising out, pertaining to, or related to the perf.)rmance of this Agreement by Consultant or Consultant's employees,officers, officials,agents or independent contractors. Such costs and expenses shall include real)nable attorneys'fees of counsel of City's choice,expert fees and Cll 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 land 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 Df, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct u pder this Agreement. Such costs and expenses shall include reas enable atkirneys'fees of counsel of City's choice,expert fees and 411 other costs and fees of litigation. 10. INSUIRANCE: 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 v,vith 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 co erage reduced before the expiration date thereof, the insurer I FY 20:7/2018 i i 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 insu-ante 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: ( ) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage,without an exclusion for sexual abuse and molestation,in the following minimum i limits: i 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 shotivn above. ( ) Automotive: Proof of automobile insurance req.iired at the California statutory minimums. B. SUBROGATION WAIVER: Consul'ant agrees that in the event of loss due to any of the perils for whi-h he/she lbs agreed to provide comprehensive general and automotive liab lity insurance,Consultant shall look solely to his/her insurance for recovery. Consultant he�eby 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 subogation Which any such insurer of said Consultant may acquire against City by� irtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Cons4ltant 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 compensatedlay the Consultant for the costs of the insurance premixms at the FY 2(17/2018 i I I ' maximum rate permitted by law and computed from the date written notice is rece.'.ved 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 insurOce coverages, excpt any professional liability insurance, required by this Agreement. Tie 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 additignal insured. An additional insured named herein sha4 not be held liable for�ny premium, deductible portion of any loss, or expense of any nage on this olicy or any extension thereof. Any other insurance held by an addjtional ins red shall not be required to contribute anything toward any loss or e-pense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSDURANCE. The insurance limits required by City are not represented as being sufficient to prptect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 11. CONFLICT OF INTEREST: Consultiant 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 confliwt of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve Kiri a staff capE.city as defined in Title 2, Division 6, Section 18700 of the California Code of Reg zlations. I 12. PROHIBITION AGAINST TRANSFERS: Consultant shall not assign, sublease,hypothecate, or transfer this Agr 4ement, ori any interest therein, directly or indirectly, by operation of law or otherwise, wit out prior written consent of City. Any attempt to doso without said consent sl�all be null and void, and any assignee, sublessee,hypothecate or transferee shah 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 otjher financial institution without prior written consent; Written notice of such ffpsslgnment shall be promptly furnished to City by Consultant. The sal , assignment, transfer or other disposition of any of the issued and outs tanding c1pital 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 I FY 2017/2018 I i control of Constant, 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 requires)to carry general, and professional liability insurance n reasonable confjormity to the insurance carried by Consultant. In addition, any work or service's subcontracted hereunder shall be subject to each provision of this Agreemerd 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 1j of limited to, a City Business License, that may be required in connection witlj the performance of services hereunder. I 15. REPOR'T'S: A. Fa.ch and every report,draft,work product,map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to bej prepared by Consultant pursuant to or in connection with this AgrE!ement, shall be the exclusive property of City. Consultant shall!not copy right 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 1by this Agreement shs;ll become the property of City, and all publication rights are reserved to Cit';y. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. �11 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 City1may regi.-ire, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be FY 20.7/2018 i i i printed on recycled paper. All Reports shall be copied on both sides of the paper except for one ohgiunal, 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 Qr organization by Consultant without prior approval by City. I 16. REC(JR", S: 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 detailito 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 time, and gives City the right to examine and audit same, ;end to make transcripts therefrom as necessary, and to allow inspection of all work, data, document's,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';supplemental examination or audit of the records discloses a failure to adhere to apprgpriate internal financial controls,or other breach of contract or failu ce to act inigood faith,then Consultant shall reimburse City for 411 reasonable cost and expenses associated with the supplemental examination or audi'. I 17. NOTICES: All notices, demands, requests or approvals to be given under;this AgrE.ement shall be given in writing and conclusively shall be deemed served whe:1 delivered personally or on the second business day after the d6posit thereof in the nited States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. I All noti es, demands,requests, or approvals from Consultant To City shall be addressed tQ City at: i City of Cupertino 10300 T6rre Ave. Cupertino CA 95014 FY 2017/2018 j i i I Attention: Director of Recreation and Community Services All notifies, demands, requests, or approvals from City to Consultant shall be addressed t IQ Consultant at: San Frani cisco Shakespeare Festival P.O. Box 460937 San Francisco, CA 94146 Attention: Toby Leavitt 18. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions hereof at the tine 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 notii-e 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 wr tten 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 rovided herein. Upon termination of this Agreement, each party shal I pay to the other party that portion of compensation specified it this Agrement th t 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 mi imurn enrollment for a particular class identified in the Scope of SerN ices is met'; City may cancel that class without further notice to Qonsultant or payment unde'r this Agreement. The City in its sole discretion may determine the type of cla0es, 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. CONFLIICT OF LAW, This Agreement shall be interpreted under, and enforced by the laws of the.'3tate 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. FY 2017/2018 .................................... ........... ...................... .............. ................................................................................ I 21. ADVERTISEMENT: Consultalit 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 some or a dFferent character. 23. INTEGRATED CONTRACT: This Agr ement represents the full and complete understanding of every kind )r 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 herecf. Any inodification 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 shad be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through rriistake or otherwise, any such provision is not inserted or is not correctly insertfd,the Agreement shad be amended to make such insertion on application by either party. I 25. CAPTIONS: i The cape}ons 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 Agreements I i i i i i I i I i FY 2017/2018 i i IN WITNESS WHEREOF,the parties have caused the Agreemeht to be execu.-ed. THE SAN FRANCISCO SHAKESPE FESTIVAL CITY OF CUPERTINO A No a-profit Organization A M nicipal Corporation 'v"-'l Corporation ;Hayes y Ke By: �j oby Leavitt y: Fels y Hayes Title: Executive Director Title: Recreation Coordinator Dater�/ Date: Tuesday,July 11, 2017 RECOMMENDED FOR APPROVAL: Y. Mar iah babel Title: Recreation Manager APPROVED AS TO FORM: KRandolph Stevenson Holm,;' City Attorney Date: ATTEST, Grace Schmidt City Clerk Date: EXPENDITURE DISTRIBUTION:: Account No: 100-61-605-700702 Amount: $30,000 FY 01712018 SANFRAN-03 PDUGAN AC®1r DATE(MM/DDIYYYY) +�. CERTIFICATE OF LIABILITY INSURANCE 07/12/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER,THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER, IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(los)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ( CONTACT 1 NAME: Maury,Donnelly&Parr PHONE FAX 24 Commerce St. (A/C,No,Ext):(410)685-4625 1(AIC,No):(410)685-3071 1 Baltimore,MD 21202 ADOARfESS : 1 1 INSURER(S)AFFORDING COVERAGE I NAIC# I INSURER A:GREAT DIVIDE INSURANCE COMPANY 125224 INSURED (INSURER B: 1 San Francisco Shakespeare Festival I INSURER C: P.0.Box 460937 I INSURER D: I San Francisco,CA 94146 INSURER E: 1 1 INSURER F: 1 COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH DOLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP I LIMITS LTR INSD WVD (MMIDD/YYYYI (MM/DD/YYYYI A X COMMERCIAL GENERAL LIABILITY I EACH OCCURRENCE 1$ 1,000,0001 CLAIMS-MADE OCCUR X CPA202162010 03/22/2017 03/22!20181 DAMAGE TO 1 300,000 PREMISESS(R occurrence/ $ MED EXP(Any one person) 1$ 5,0001 _ PERSONAL&ADV INJURY 1$ 1,000,0001 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,0001 POLICYPRO- LOC 1 2,000,0001 JECT PRODUCTS-COMP/OP AGG $ OTHER: $ I A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1 1,000,0001 (Ea accident) $ ANY AUTO CAA202162210 03/22/2017 03/22/2018 I BODILY INJURY(Per Person) $ 1 OWNED SCHEDULED 1 BODILY INJURY(Per accident))$ 1 AUTOS ONLY AUTOS p X DNS ONLY X AUTOS ONLY 1(Peer PROPERTY DAMAGE $ 1 1$ A X UMBRELLA LIAB OCCUR I EACH OCCURRENCE $ 3,000,0001 EXCESS LIAB CLAIMS-MADE CUA202162110 03/22/2017 03/22/2018 I AGGREGATE $ 3,000,0001 DED I I RETENTION$ 1 $ A WORKERS COMPENSATION I X I PER I I OERH AND EMPLOYERS'LIABILITY YIN WCA202105410 02/07/2017 02/07/20181 I 1,000,0001 AFFICER RIETORIEXCLINER/E ECUTIVE ❑ N/A E.L.EACH ACCIDENT $ �MandatoryinIN ) IE.L.DISEASE-EAEMPLOYEEI$ 1,000,0001 If yes,describe under 1 1,000,0001 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 1011 Additional Remarks Schedule,may be attached If more space is required City of Cupertino is named as Additional Insured as required by written contract. Waiver of Subrogation in favor of Additional Insured. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Cupertino Recreation and Community Services THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN p Y ACCORDANCE WITH THE POLICY PROVISIONS. 10185 N.Stelling Road Cupertino,CA 95014 AUTHORIZED REPRESENTATIVE C1Qd�� I ACORD 25(2016103) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CPA 2021620 - 10 03/22/17 SDF 04/05/17 CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE REAL) IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Additional Insured Person(s) or Organization(s) Blanket as required by written contract prior to loss Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II - Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule but only with respect to liability for "bodily injury", "property damage" or "personal and advertising in)ury" caused, in whole or in part, by your acts or ommissions or the acts or ommissions of those acting on your behalf: A. In the performance of your ongoing operation; or B. In connection with your premises owned by or rented to you. CG 20 26 07 04 ISO Properties, Inc, 2004 Page 1