19-014 Liebert, Cassidy, Whitmore, for Chief Nogotiatior ServicesCITY OF
II PROFESSIONAL/CONSULTING SERVICES AGREEMENT
CUPERTINO
1. PARTIES
This Agreement is made and entered into as of_J_an_u.c...a_ry__,.__2_4~,_2_0_1.c.._9 ___________ _
("Effective Date") by and between the City of Cupertino, a municipal corporation ("City"), and
Liebert, Cassidy, Whitmore ("Contractor"),
a Law firm
for Chief Negotiator Services
2. SERVICES
Contractor agrees to provide the services and perform the tasks ("Services") set forth in detail in
Scope of Services, attached here and incorporated as Exhibit A.
3. TIME OF PERFORMANCE
3.1 This Agreement begins on the Effective Date and ends on June 30, 2020
("Contract Time"), unless terminated earlier as provided herein. Contractor's Services shall begin
on January 24, 2019 and shall be completed byJ_u_n_e_3_0.,_, 2_0_2_0 _____ _
3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the
Schedule of Performance, attached and incorporated here Exhibit B.
3.3 Time is of the essence for the performance of all the Services. Contractor must have
sufficient time, resources, and qualified staff to deliver the Services on time.
4. COMPENSATION
4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the
Services an amount that will based on actual costs but that will be capped so as not to exceed
$ 50 000 ("Contract Price"), based upon the scope of services in Exhibit A and
the budget and rates included in Exhibit C, Compensation attached and incorporated here. The
maximum compensation includes all expenses and reimbursements and will remain in place even
if Contractor's actual costs exceed the capped amount. No extra work or payment is permitted
without prior written approval of City.
4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable
completed and the amount due for the preceding month. Within thirty (30) days of completion of
Services, Contractor must submit a requisition for final and complete payment of costs and pending
claims for City approval. Failure to timely submit a complete and accurate payment requisition
relieves City of any .further payment or other obligations under the Agreement.
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5. INDEPENDENT CONTRACTOR
5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint
venture of City. Contractor is solely responsible for the means and methods of performing the
Services and for the persons hired to work under this Agreement. Contractor is not entitled to
health benefits, worker's compensation or other benefits from the City.
5.2 Contractor's Qualifications. Contractor warrants on behalf of itself and its subcontractors
that they have the qualifications and skills to perform the Services in a competent and professional
manner and according to the highest standards and best practices in the industry.
5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that
they are properly licensed, registered, and/or certified to perform the Services as required by law
and have procured a City Business License.
5.4 Subcontractors. Only Contractor's employees are authorized to work under this
Agreement. Prior written approval from City is required for any subcontractor, and the terms and
conditions of this Agreement will apply to any approved subcontractor.
5.5 Tools, Materials and Equipment. Contractor will supply all tools, materials and
equipment required to perform the Services under this Agreement.
5.6 Payment of Taxes. Contractor must pay income taxes on the money earned under this
Agreement. Upon City's request, Contractor will provide proof of payment and will indemnify
City for violations pursuant to the indemnification provision of this Agreement.
6. PROPRIETARY/CONFIDENTIAL INFORMATION
In performing this Agreement, Contractor may have access to private or confidential information
owned or controlled by the City, which may contain proprietary or confidential details the
disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence
all City information provided by City to Contractor and use it only to perform this Agreement.
Contractor shall exercise the same standard of care to protect City information as a reasonably
prudent contractor would use to protect its own proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Property Rights. Any interest (including copyright interests) of Contractor in any
product, memoranda, study, report, map, plan, drawing, specification, data, record, document or
other information or work, in any medium (collectively, "Work Product"), prepared by Contractor
in connection with this Agreement will be the exclusive property of the City and shall not be shown
to any third-party without prior written approval of City.
7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all Work Product arising out
of this Agreement is considered "works for hire" and all copyrights to the Work Product will be
the property of City. Alternatively, Contractor assigns to City all Work Product copyrights.
Contractor may use copies of the Work Product for promotion only with City's written approval.
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7.3 Patents and Licenses. Contractor must pay royalties or license fees required for
authorized use of any third party intellectual property, including but not limited to patented,
trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product
of this Agreement.
7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City
may use or modify the Work Product of Contractor or its sub-contractors prepared or created under
this Agreement, to execute or implement any of the following:
(a) The original Services for which Contractor was hired;
(b) Completion of the original Services by others;
(c) Subsequent additions to the original Services; and/or
( d) Other City projects.
7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the
Work Product, on recycled paper and copied on both sides, except for one single-sided original.
8. RECORDS
Contractor must maintain complete and accurate accounting records relating to its performance in
accordance with generally accepted accounting principles. The records must include detailed
information of Contractor's performance, benchmarks and deliverables, which must be available
to City for review and audit. The records and supporting documents must be kept separate from
other records and must be maintained for four years from the date of City's final payment.
9. ASSIGNMENT
Contractor 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 will be null and void. Any changes related to the financial control or
business nature of Contractor as a legal entity is considered an assignment of the Agreement and
subject to City approval, which shall not be unreasonably withheld. Control means fifty percent
(50%) or more of the voting power of the business entity.
10. PUBLICITY/ SIGNS
Any publicity generated by Contractor for the project under this Agreement, during the term of
this Agreement and for one year thereafter, will reference the City's contributions in making the
project possible. The words "City of Cupertino" will be displayed in all pieces of publicity,
including flyers, press releases, posters, brochures, public service announcements, interviews and
newspaper articles. No signs may be posted, exhibited or displayed on or about City property,
except signage required by law or this Contract, without prior written approval from the City.
11. INDEMNIFICATION
11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active
negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold
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harmless City, its City Council, boards and commissions, officers, officials, employees, agents,
servants, volunteers and consultants ("Indemnitees"), through legal counsel acceptable to City,
from and against any and all liability, damages, claims, actions, causes of action, demands,
charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to
litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from
this Agreement or in any manner relating to any of the following:
(a) Breach of contract, obligations, representations or warranties;
(b) Negligent or willful acts or omissions committed during performance of the Services;
( c) Personal injury, property damage, or economic loss resulting from the work or performance
of Contractor or its subcontractors or sub-subcontractors;
(d) Unauthorized use or disclosure of City's confidential and proprietary Information;
( e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark,
or service mark or other proprietary or intellectual property rights of any third party.
11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must
accept a tender of defense upon receiving notice from City of a third-party claim, in accordance
with California Public Contract Code Section 9201. At City's request, Contractor will assist City
in the defense of a claim, dispute or lawsuit arising out of this Agreement.
11.3 Contractor's duties under this section are not limited to the Contract Price, workers'
compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in
the Agreement shall be construed to give rise to an implied right of indemnity in favor of
Contractor against City or any Indemnitee.
11.4. Contractor's payments may be deducted or offset to cover any money the City lost due to
a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction.
12. INSURANCE
Contractor shall comply with the Insurance Requirements, attached and incorporated here as
Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as
required by City. City will not execute the Agreement until City approves receipt of satisfactory
certificates of insurance and endorsements evidencing the type, amount, class of operations
covered, and the effective and expiration dates of coverage. Failure to comply with this provision
may result in City, at its sole discretion and without notice, purchasing insurance for Contractor
and deducting the costs from Contractor's compensation or terminating the Agreement.
13. COMPLIANCE WITH LAWS
13.1 General Laws. Contractor shall comply with all local, state and federal laws and
regulations applicable to this Agreement. Contractor will promptly notify City of changes in the
law or other conditions that may affect the Project or Contractor's ability to perform. Contractor
is responsible for verifying the employment authorization of employees performing the Services,
as required by the Immigration Reform and Control Act.
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13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If
the Scope of Services includes a "public works" component, Contractor is required to comply with
prevailing wage laws under Labor Code Section 1720 and other labor laws.
13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious
creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy,
age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome
(AIDS) or any other protected classification. Contractor shall comply with all anti-discrimination
laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735,
1777 and 3077.5. Consistent with City policy prohibiting harassment and discrimination,
Contractor understands that harassment and discrimination directed toward a job applicant, an
employee, a City employee, or any other person, by Contractor or its employees or sub-contractors
will not be tolerated.
13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable
to this Agreement and must avoid any conflict of interest. Contractor warrants that no public
official, employee, or member of a City board or commission who might have been involved in
the making of this Agreement, has or will receive a direct or indirect financial interest in this
Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be
required to file a conflict of interest form if Contractor makes certain governmental decisions or
serves in a staff capacity, as defined in Section 18700 of the California Code of Regulations.
Contractor agrees to abide by the City's rules governing gifts to public officials and employees.
13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City
suspending payments, requiring reimbursements or terminating this Agreement. City reserves all
other rights and remedies available under the law and this Agreement, including the right to seek
indemnification under Section 11 of this Agreement.
14. PROJECT COORDINATION
City Project Manager. The City assigns Kristina Alfaro, Director of Administrative Services as
the City's representative for all purposes under this Agreement, with authority to oversee the
progress and performance of the Scope of Services. City reserves the right to substitute another
Project manager at any time, and without prior notice to Contractor.
Contractor Project Manager. Subject to City approval, Contractor assigns Richard Bolanos,
Partner as its single Representative for all purposes under this Agreement, with authority
to oversee the progress and performance of the Scope of Services. Contractor's Project manager
is responsible for coordinating and scheduling the Services in accordance with the Scope of
Services and the Schedule of Performance. Contractor must regularly update the City's Project
Manager about the progress with the work or any delays, as required under the Scope of Services.
City written approval is required prior to substituting a new Representative.
15. ABANDONMENT OF PROJECT
City may abandon or postpone the Project or parts therefor at any time. Contractor will be
compensated for satisfactory Services performed through the date of abandonment, and will be
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given reasonable time to assemble the work and close out the Services. With City's pre-approval
in writing, the time spent in closing out the Services will be compensated up to a maximum often
percent (10%) of the total time expended to date in the performance of the Services.
16. TERMINATION
City may terminate this Agreement for cause or without cause at any time . Contractor will be paid
for satisfactory Services rendered through the date of termination, but final payment will not be
made until Contractor closes out the Services and delivers the Work Product.
17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California. Any lawsuits filed related to
this Agreement must be filed with the Superior Court for the County of Santa Clara, State of
California. Contractor must comply with the claims filing requirements under the Government
Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide
the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award
must be supported by law and substantial evidence and include detailed written findings of law
and fact.
18. ATTORNEY FEES
If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or
other proceedings to enforce its rights or a judgment in connection with this Agreement, the
prevailing party will be entitled to reasonable attorney fees and costs.
19. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries of this Agreement.
20. WAIVER
Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract
provision. City's waiver of a breach shall not constitute waiver of another provision or breach.
21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature between
the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written,
between the Parties. Any modification of this Agreement will be effective only if in writing and
signed by each Party's authorized representative. No verbal agreement or implied covenant will
be valid to amend or abridge this Agreement. If there is any inconsistency between the main
Agreement and the attachments or exhibits thereto, the text of the main Agreement shall prevail.
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22. INSERTED PROVISIONS
Each provision and clause required by law for this Agreement is deemed to be included and will
be inferred herein. Either party may request an amendment to cure mistaken insertions or
omissions of required provisions. The Parties will collaborate to implement this Section, as
appropriate.
23. HEADINGS
The headings 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.
24. SEVERABILITY/PARTIAL INVALIDITY
If any term or provision of this Agreement, or their application to a particular situation, is found
by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in
force and effect to the extent allowed by such ruling. All other terms and provisions of this
Agreement or their application to specific situations shall remain in full force and effect. The
Parties agree to work in good faith to amend this Agreement to carry out its intent.
25. SURVIVAL
All provisions which by their nature must continue after the Agreement expires or is terminated,
including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law
and Attorney Fees, shall survive the Agreement and remain in full force and effect.
26. NOTICES
All notices, requests and approvals must be sent in writing to the persons below, which will be
considered effective on the date of personal delivery or the date confirmed by a reputable overnight
delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid,
registered or certified, or the next business day following electronic submission:
To City of Cupertino
10300 Torre Ave., Cupertino CA 95014
Attention: Kristina Alfaro
Email: kristinaa@cupertino.org
To Contractor: Liebert Cassidy Whitmore
6033 W. CENTURY BLVD., 5TH FLOOR
Los Angeles, CA 90045
Attention: J. Scott Tiedemann
Email: stiedemann@lcwlegal.com
27. VALIDITY OF CONTRACT
This Agreement is valid and enforceable only if (a) it complies with the purchasing and contract
provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, as amended from time to time,
(b) is signed by the City Manager or an authorized designee, and ( c) is approved for form by the
City Attorney's Office.
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28. EXECUTION
The person executing this Agreement on behalf of Contractor represents and warrants that
Contractor has full right, power, and authority to enter into and carry out all actions contemplated
by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a
legally binding obligation of Contractor. This Agreement may be executed in counterparts, each
one of which is deemed an original and all of which, taken together, constitute a single binding
instrument.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
J. Scott Tiedemann
T
Date ~/2i·/ Jq ~. ' +
Tax I.D. No.: _95_-3_6_58_9_73 ___ _
APPROVED AS TO FORM:
CITY OF CUPERTINO
A Municipal Corporation
By ~tr=
Name Kristina Alfaro
Title Director of Administrative Services
Date ?-/ 17d l "J
ROGIO v. FIERRO H e ~ ,1-t t-K'.... \\It ( ~vUL
Cupertino Acting City Attorney
A~/t
GRACE SCHMIDT ;Z ..-)-_ l.--j lj
City Clerk
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ADDENDUM TO PROFESSIONAL SERVICES /CONSULTANT AGREEMENT
INDEMNIFICATION
All documents remain unchanged except section revised and clarified by this Addendum.
City and Contractor are in agreement that the following Indemnification language
replaces, in its entirety, section 11. Indemnification in the attached agreement:
11. INDEMNIFICATION
To the fullest extent allowed by law, and except for losses caused by the sole and active
negligence or willful misconduct of City personnel, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, officials,
employees, agents, servants, volunteers and consultants ("Indemnitees"), through legal
counsel acceptable to City, from and against any and all liability, damages, claims,
actions, causes of action, demands, charges, losses, costs and expenses (including
attorney fees, legal costs and expenses related to litigation and dispute resolution
proceedings) of every nature, arising directly or indirectly from this Agreement or in any
manner relating to any of the following:
(a) Breach of contract, obligations, representations or warranties;
(b) Negligent or willful acts or omissions committed during performance of the
Services;
(c) Personal injury, property damage, or economic loss resulting from the work or
performance of Contractor or its subcontractors or sub-subcontractors;
(d) Unauthorized use or disclosure of City's confidential and proprietary Information;
(e) Claim of infringement or violation of a U.S. patent or copyright, trade secret,
trademark, or service mark or other proprietary or intellectual property rights of any third
party.
EXHIBIT A
SCOPE OF SERVICES
Contractor agrees to provide City with the following:
1. Complete negotiations process to agreement or impasse .
2. Attend up to six closed sessions with City Council.
3. Attend up to 20 bargaining meetings with two labor units . Each meeting shall be
up to half a day .
4. Draft proposals for bargaining and participate in strategy meeting with the City
staff in advance of bargaining sessions to review proposals .
5. Communicate with labor units as necessary.
6. Facilitate up to three (3) meetings 90 days prior to expiration of MOU on June 30 ,
2019 with the Cupertino Employees Association, with the goal ofreaching
mutual agreement on comparable jurisdiction and total compensation elements to
be surveyed .
EXHIBIT B
SCHEDULE OF PERFORMANCE
Contractor agrees to adhere to the following Schedule of Performance:
1. Complete negotiations process to agreement or impasse -on or before 6/30/2020 .
2 . Attend up to six closed sessions with the City Council -on or before 6/30/2020.
3. Attend up to 20 bargaining meetings with two labor units. Each meeting shall be
up to half a day -on or before 6/30/2020.
4. Draft proposals for bargaining and participate in strategy meeting with the City
staff in advance of bargaining sessions to review proposals -on or before
6/30/2020 .
5. Communicate with labor units as necessary -on or before 6/30 /2020.
6. Facilitate up to three (3) meetings 90 days prior to expiration of MOU on June 30,
2019 with the Cupertino Employees Association , with the goal of reaching
mutual agreement on comparable jurisdictions and total compensation elements
to be surveyed -on or before 6/30/2020.
Exhibit C
The FY2018-19 Final Budget including funding of up to $50,000 for costs a Chief Negotiator.
Costs were budgeted in the Administrative Services, Human Resources Division budget in
contract services .
Not to exceed costs for the Chief Negotiator contracts are $50,000 and should be sufficient to
cover the costs of negotiations based on retainer rates as described in the initial Request for
Proposal and incorporated below:
In consideration of the labor negotiation services to be provided under this Agreement , the City
agre e s to pay Contractor retainer fees in the amount of $4 ,370 per month for two bargaining unit
negotiations for a period of twelve (12) months. The monthly hours are then capped based on
the reduced hourly rate of $355 for (Rick Bolanos or D01ma Williamson); or $265 (for Heather
Coffman or Kelly Tuffo). For example , the hours for two units would cover an average of 12.3
hours of service per month if your negotiator was a Rick or Donna (148 hours annually); or 16 .5
hours of service per month if your negotiator was Heather or Kelly (198 hours annually). Any
time over the annual cap would be billed at the standard hourly rates.
Attorney time in excess of the capped hours and time devoted to post-mediation impasse
proceedings , such as factfinding or interest arbitration, will be billed on a time-and-materials
basis at the standard hourly rates listed below.
Richard Bolanos ............. $370
Donna Williamson .......... $370
Heather Coffman ............ $280
Kelly Tuffo ................... $280