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18-040 LERN Learning Resources Network, Consulting Services to complete a Program Review and Marketing Plan for the Recreation and Community Services DepartmentFIRST AMENDMENT TO AGREEMENT 18-040 BETWEEN THE CITY OF CUPERTINO AND LERN, LEARNING RESOURCES NETWORK FOR CONSULTING SERVICES TO COMPLETE A PROGRAM REVIEW AND MARKETING PLAN FOR THE RECREATION AND COMMUNITY SERVICES DEPARTMENT This First Amendment to Agreement 18-040 between the City of Cupertino and LERN, Learning Resources Network, for reference dated 8/31 /2018 , is by and between the CITY OF CUPERTINO , a municipal corporation (hereinafter "City") and LERN, Leaming Resources Network, a Corporation ("Consultant") whose address is P.O . Box 9, River Falls, WI 54022, and is made with reference to the following: RECITALS: A. On 4 /26/2018, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for Consulting Services to complete a Program Review and Marketing P lan for the Recreation and Community Services Depa11ment. The agreement will expire on 8/31 /2018. B . The Agreement is refetTed to as the "Agreement" unless otherwise indicated. C. City and Consultant desire to modify the Agreement on the terms and conditions set forth herein . NOW, THEREFORE, it is mutually agreed by and between and undersigned pat1ies as follows: 1. TIME OF PERFORMANCE Paragraph 3 .1 of the Agreement is modified to read as fo ll ows: This Agreement begins on the Effective Date and ends on March 31 , 2019 ("Contract Time"), unless tenninated earlier as provided herein . Contractor's Services shall begin on April 26 , 2018 and shall be completed by March 31, 2019. 2 . The following Exhibits to the Agreement, are amended and replaced to read as shown in the attachments to this Amendment: a. Exhibit A & Exhibit B with updated dates. 3 . Except as expressly modified herein, all other te1ms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the pa11ies hereto have caused this modification of Agreement to be executed. CONSULTANT By YJ1a--i"K6~ Title Senior Vic e Pres ident RECOMMENDED FOR APPROVAL . \,. '-...:.._ ? City Attorney By ___________ _ Title ___________ _ ~.BL .rdi: City Clerk 9'·· 'I ·· / f' EXPENDITURE DISTRIBUTION PO #2018-478 100-61-630 700-702 Original $20,500.00 Amendment #1: 0 Total: $20,500.00 EXHIBIT A SCOPE OF WORK PROGRAM REVIEW AND MARKETING PLAN -CITY OF CUPERTINO. CA The following represents the scope of work for the contract between the Learning Resources Network, LERN ("Contractor") and the City of Cupertino ("City"). 1. Objectives: Complete a two day program review that: • Analyze program make up to others in our constituency. • Benchmark tracking to measure performance. • Provide recommendations and key actions needed to implement to reduce costs and boost revenue and registration. • Describe specific steps to improve programming, marketing, sales and operations. 2. Marketing Plan: Complete a comprehensive and long term plan that: • Describe how the City's and Department's missi'on and vision tie to the plan • Describe demographics of the city • Describe internal marketing responsibilities by division • Set a minimum of four measurable marketing objectives, tied to program review. Goals shall be reviewed with staff by department prior to selecting four to focus on. • Using existing consultants report, incorporate branding, colors, etc. in the marketing plan • Make appropriate recommendations around software, program brochures, communication and social media • Complete a SWOT or similar analysis that highlights current and future opportunities in the department; Describe the department's competitive positioning • Describe and propose target markets for the programs such as SO+ empty nester, transplant into the community with/without children, transplant millennials, cultural groups, etc. Target Messaging based on department values; breakout of external customers • Describe a buying cycle for the department • Marketing mix and recommended paths for communication • Make pricing recommendations • From the program review, what programs to eliminate and what to focus on. • Describe performance measures to know marketing efforts are successful • Complete a comprehensive review of the department program guide, including program descriptions, pricing, times programs are offered, etc. • Review and make recommendations around distribution of the program brochure, carrier routes, etc. 3. Meetings and presentations EXHIBIT B SCHEDULE OF PERFORMANCE PROGRAM REVIEW AND MARKETING PLAN -CITY OF CUPERTINO, CA Marketing Plan Project Phases Phase 1: Data, Information & Materials. Recreation and Community Services (RCS) delivers to LERN requested but available RCS data, information and materials, as well as data, information and materials RCS has collected for the RCS Marketing Plan. COMPLETION DATE: JANUARY 18, 2019 Phase 2: LERN Analysis. LERN analyzes the RCS data, information and materials and prepares for an onsite LERN Program Review. COMPLETION DATE: FEBRUARY 25, 2019 Phase 3: Program Review. Over two days LERN administers a LERN Program Review highlighting RCS' positive accomplishments and recommendations for improvement. On the second day LERN's project manager would report out to the RCS Leadership Team. COMPLETION DATE: FEBRUARY 27 AND FEBRUARY 28, 2019 Phase 4: Marketing Plan. Using the LERN Program Review recommendations and the data, information and materials provided by RCS for the RCS Marketing Plan, LERN would build a RCS Marketing Plan. COMPLETION DATE: MARCH 5, 2019 Phase 5: Marketing Plan Presentations. Present the Marketing Plan to the RCS Leadership Team and the City of Cupertino Parks & Recreation Commission. COMPLETION DATE: MARCH 6, 2019 (LEADERSHIP TEAM); MARCH 7, 2019 (COMMISSION) ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 02/13/2018 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(ies) 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 CO NTACT B rooke Steiner NAME : C&W In surance W8N,l'0 Ext\: (785)537-1600 I r..et Nol: (785)537-1657 555 Poyntz Avenue , Suite 205 E-MAIL bsteiner@charlsonwilson.com ADDRESS : P.O . Box 1989 INSURER(S) AFFORDING COVER AGE NAIC # Manhattan KS 66505-1989 INSURER A : Hartford Fi re In sura nce Company 19682 IN SURE D INSURER B: Rated by Multipl e Companies 00914 Learning Resources Network INSURER C: Ch ubb In surance Companies Po Box 9 INSURER D : INSURER E: River Falls WI 54022 INSURER F : COVERAGES CERTIFICATE NUMBER : Master 2017-2018 REVISION NUMBER : TH IS IS TO CERTIF Y THAT THE POLIC IE S OF INSURANCE LISTED BELOW HAV E BEEN ISSU ED TO THE IN SURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED . NOTW ITHSTANDING ANY REQUIREMENT, TER M OR COND ITI ON OF ANY CONTRACT OR OT HE R DOCUM ENT WITH RESPECT TO WHIC H THIS CERTIF ICATE MAY BE ISSUED OR MAY PERTAIN , THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJ ECT TO ALL THE TER MS, EXCLUSIONS AND CON DITI ONS OF SUCH PO LI CIE S. LI MI TS SHOWN MAY HAV E BEEN REDUCED BY PAID CLAIM S. INSR ·~· POLICY EFF POLIC Y EXP LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER (MM/DDIYYYY) (MM /DD/YYYY ) LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 ,--~ CLAIMS-MADE [8] OCCU R u,,,v,AGE ~YE KcN, cD 300,000 PREMISES Ea occu rrence \ $ ,-- MED EXP (Any one person) $ 10 ,000 ,--y 37SBAAI0316 12/16/2017 12 /16/20 18 1,000,000 A PERSONAL & ADV INJURY $ ,-- GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 ~ D PRO-[8] LOG PRODUCTS -COMP/OP AGG $ 2,000,000 POLICY JECT OTHER: Hired Auto s 1,000,000 AUTOMOB ILE LIABILITY ,--fE~~~~~~~ti'INGLE LIMIT $ ANY AUTO BODILY INJURY (Per person ) $ ,-- OWNED -SC HEDULED BOD ILY IN JURY (Per accident) $ -AUTOS ONLY ,--AUTOS HIRED NON-OWNED PROPERTY DAMAGE s AUTOS ONLY AUTOS ONLY /Per accident\ -,-- s X UMBRELLA LIAB ~ OCCUR EACH OCCURRENCE $ 1,000 ,000 -37SBAAI 0316 12/16/20 17 12/16/2018 1,0 00,000 A EXC ESS LIAB CLAIMS-M ADE AGGREGATE $ DED I XI RETENTION s 0 $ WORKERS COMPENSATION XI PER I I OTH- AND EMPLOYERS' LIABILITY STATUTE ER YIN 1,000,000 B ANY PROPRIETOR/PARTNER/EXECUTIVE 0 NIA 37WECGL8009 12/16/20 17 12 /16/2 018 E.L. EACH ACCIDENT $ OFFICER/ME MBER EXCLUDED? 1,000 ,000 (Mandatory in NH) E.L. DISEASE· EA EMPLOYEE s If yes, describe under DESCRIPTI ON O F OPERATIONS below E.L. DISEASE· POLICY LI MIT $ 1,000 ,000 C Professional Li abi lity 3866681 04/26/2018 04/26/2019 $2,000 ,000 DESCR IPTION OF OPERATIONS I LOCATIONS I VEH ICLES (ACORD 101 , Additional Remarks Schedul e, may be attached if more space Is req uired ) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Cupertino Attn : Recreation and Community Services ACCORDANCE WITH THE POLICY PROVISIONS . 10300 Torre Ave AUTHORIZED REPRESENTATIVE Cupertino CA 95014 ~~ ~ I © 1988-2015 ACORD CORPORATION . All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 3 7 SBA AI0316 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON-ORGANIZATION PATTY PAULINO, SECRETARY II MIAMI DADE COLLEGE -KENDAL L CAMPUS SCHOOL OF COMMUNITY EDUCATION 11011 SW 10TH ST . MIAMI, FL 33176 FRANK M. FALCETTA GEORGIA PERIMETER COLLEGE CENTER FOR CONTINUING & CORPORATE EDUCATION 652 NORTH INDIAN CREEK DRIVE CLARKSTON, GA 30021 TRUCKEE MEADOWS COMMUNITY COLLEGE 5270 NEIL ROAD RENO, NV 89502 SMG & GIMTCA 1 INTERNATIONAL DRIVE PO BOX 248 SAVANNAH, GA 31402-0248 RE: LOC 001 BLVD 001 PIKES PEAK COMMUNITY COLLEGE 5675 SOUTH ACADEMY BLVD COLORADO SPRINGS, CO 80906 LOC 001 BLDG 001 PIMA COUNTY COMMUNITY COLLEGE DISTRICT 4905D EAST BROADWAY BOULEVARD TUCSON, AZ 85709 LOC 002, BLDG 001 THE CITY OF CUPERTINO, ITS CITY COUNCIL, BOARDS AND COMMISSIONS, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, SERVANTS AND VOLUNTEERS FormlH12001185TSEQ.N0.001 PrintedinU.S.A. Page 001 (CONTINUED ON NEXT PAGE) Process Date: 02/09/18 Expiration Date: 12/16/18 POLICY NUMBER: 37 SBA AI0316 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON-ORGANIZATION 103 00 TORRE AVE CUPERTINO, CA 95014 ATTN : RECREATION AND COMMUNITY SERVICES FormlH12001185TSEQ.N0.001 PrintedinU.S.A. Page 002 (CONTINUED ON NEXT PAGE) Process Date: 02/09/18 Expiration Date: 12/16/ 18 CITY OF a PROFESSIONAL/CONSULTING SERVICES AGREEMENT CUPERTINO 1. PARTIES This Agreement is made and entered into as of April 26 , 2018 ("Effective Date") by and between the City of Cupertino , a municipal corporation ("City"), and _L_E_RN _____ _ Learning Resources Network, P .O. Box 9, River Falls , WI 54022 ("Contractor"), a Corporation for Consulting Services to complete a Program Review and Marketing Plan for the Recreation and Community Services Department 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 August 31 , 2018 ("Contract Time"), unless terminated earlier as provided herein . Contractor 's Services shall begin on April 26 , 2 018 and shall be completed by Augu st 31 , 2 018 . - 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 $20 500 ("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. City Project/Prog ram Recreatio n and Co mmuni ty Se rv ices Ma rke tin g Pl a n Professional/Consulting Co ntracts /Rev. Nov I 6 , 20 17 Page l of9 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. City Project/Program Recreation and Community Services Marketing Plan Professional/Consulting Co ntracts /Rev. Nov 16, 2017 Page 2 of9 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. 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 in corporated 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. Contro l 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 City Project/Program Recreation and Community Services Marketing Plan Professional/Co nsulting Contracts /Rev. Nov 16, 201 7 Page 3 of9 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 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 se rvice mark or other proprietary or intellectual property right s of an y thi rd 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. City Project/P rogram Recreation and Community Servic es Marketin g Plan Professional/Co nsulting Contracts /Re v. Nov 16, 20 17 Page 4 of9 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. 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 assignsJeff Milkes, Director, Recreation and Community 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. City Project/Program Recreation and Community Services Marketing Plan Professional/Consulting Contracts /Rev. Nov 16, 2017 Page 5 of9 Contractor Project Manager. Subj ect to City approval , Contractor assigns Greg Marsella, Senior Vice President, LERN 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 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 of ten 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. City Project/Program Recreation and Community Services Market in g Pl an Professional/Con sulting Co ntracts !Rev. No v 16, 20 17 Page 6 of9 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 comp lete 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. 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. City Project/Program Recreation and Community Services Marketing Plan Professional/Consulting Co ntracts /Rev. Nov 16, 201 7 Page 7 of9 26. NOTICES All notices , requests and approvals must be sent in writing to the persons below, w hich 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: JeffMilk es, Director, Recreation and Community Services Email : Jeffm @cupertino.org 27. VALIDITY OF CONTRACT To Contractor: LERN ------------- P.O. Box 9, Ri ve r Falls , WI 54022 Attention: Greg Marsello, Senior Vice President Email : marsello @ lern.org 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 fmm by the City Attorney's Office. 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. City Project/Program Recreation and Communi ty Serv ices Marketing Plan Professional/Consulting Contracts /Re v. Nov 16, 201 7 Page 8 of9 IN WITNESS WHEREOF, the patties have ca used the Agreement to be executed. CONTRACTOR LERN Name Greg Marsella Title Senior yp Date 3/12/18 Tax I.D . No.: 4_8_-0_90_8_56_9 __ _ CITY OF CUPERTINO A Municipal Corporation Date ? ··-2-:;i.-/g -=-----....OVED AS T FORM: . u-·-o V '.ur.r;,. l fii /fr1µy .:J/?!f s 'ROLPH STEVENSON HOM ~ ~/ / Cupertino City Attorney ATTEST: (~M~,'_ 1-7.rCity Clerk City Project/Program Recreation and Community Services Marketing Plan l<..c.S D Profess ional/Consulting Contracts /Rev. Nov 16. 2017 Pa ge 9 of9 EXHIBIT A SCOPE OF WORK PROGRAM REVIEW AND MARKETING PLAN -CITY OF CUPERTINO, CA The following represents the scope of work for the contract between the Learning Resources Network, LERN ("Contractor") and the City of Cupertino ("City"). 1. Objectives: Complete a two day program review that: • Analyze program make up to others in our constituency. • Benchmark tracking to measure performance. • Provide recommendations and key actions needed to implement to reduce costs and boost revenue and registration. • Describe specific steps to improve programming, marketing, sales and operations. 2. Marketing Plan: Complete a comprehensive and long term plan that: • Describe how the City's and Department's mission and vision tie to the plan • Describe demographics of the city • Describe internal marketing responsibilities by division • Set a minimum of four measurable marketing objectives, tied to program review. Goals shall be reviewed with staff by department prior to selecting four to focus on. • Using existing consultants report, incorporate branding, colors, etc. in the marketing plan • Make appropriate recommendations around software, program brochures, communication and social media • Complete a SWOT or similar analysis that highlights current and future opportunities in the department; Describe the department's competitive positioning • Describe and propose target markets for the programs such as SO+ empty nester, transplant into the community with/without children, transplant millennials, cultural groups, etc. Target Messaging based on department values; breakout of external customers • Describe a buying cycle for the department • Marketing mix and recommended paths for communication • Make pricing recommendations • From the program review, what programs to eliminate and what to focus on. • Describe performance measures to know marketing efforts are successful • Complete a comprehensive review of the department program guide, including program descriptions, pricing, times programs are offered, etc. • Review and make recommendations around distribution of the program brochure, carrier routes, etc. 3. Meetings and presentations • Meeting with the department leadership team to describe process and needs from staff (electronic) • Meeting with the department (In Person) Leadership team to describe action items, goals, conclusions • Presentation to Parks & Recreation Commission (In Person) Timeline: TBD but completed no later than August 31, 2018. Preferred target date of completion is May 30, 2018. Deliverable: Marketing Plan in electronic format EXHIBIT B SCHEDULE OF PERFORMANCE PROGRAM REVIEW AND MARKETING PLAN -CITY OF CUPERTINO, CA Marketing Plan Project Phases Phase 1: Data, Information & Materials. Recreation and Community Services (RCS) delivers to LERN requested but available RCS data, information and materials, as well as data, information and materials RCS has collected for the RCS Marketing Plan. COMPLETION DATE: APRIL 27, 2018 Phase 2: LERN Analysis. LERN analyzes the RCS data, information and materials and prepares for an onsite LERN Program Review. COMPLETION DATE: APRIL 30, 2018 Phase 3: Program Review. Over two days LERN administers a LERN Program Review highlighting RCS' positive accomplishments and recommendations for improvement. On the second day LERN's project manager would report out to the RCS Leadership Team. COMPLETION DATE: MAY 2nct and 3rct, 2018 Phase 4: Marketing Plan. Using the LERN Program Review recommendations and the data, information and materials provided by RCS for the RCS Marketing Plan, LERN would build a RCS Marketing Plan. COMPLETION DATE: MAY 6, 2018 Phase 5: Marketing Plan Presentations. Present the Marketing Plan to the RCS Leadership Team and the City of Cupertino Parks & Recreation Commission. COMPLETION DATE: August 31, 2018 EXHIBIT C COMPENSATION PROGRAM REVIEW AND MARKETING PLAN -CITY OF CUPERTINO, CA Compensation will be a flat fee of $20,500 that includes all project work, travel and any and all expenses to complete the scope of work EXHIBITD Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure p1ior to connnencement of Seivices and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED I. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000· per occurrence (ISO Fom1 CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occmTence limit. a . It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contiibutory," will not seek contiibution from City's insurance/self-insurance, and shall be at least as broad as ISO Fonn CG 20 01 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and prope11y damage. 3. Workers' Compensation: As required by the State of California, with Statuto1y Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease . D Not required. Consultant has provided written verification of no employees . 4. Professional Liability for professional acts, errors and omissions , as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c . If coverage is canceled or non-renewed, and not replaced with another claims-made policy fom1 with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Exh. D-In s uran ce R equirem ents f or D es ig n Profess ionals & Con sultants Contra cts Form Updat ed F eb. 201 8 1 Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and vo lunteers ("Additional Insureds") are to be covered as additional insureds on Consultant's CGL policy. General Liability coverage can be provided in the fom1 of an endorsement to Consultant's insurance (at least as broad as ISO Fom1 CG 20 10 (11 / 85) or both CG 20 10 and CG 20 37 fonns, if later editions are used). Primary Coverage Coverage afforded to City/ Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained b y City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums . Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers ' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work perfonned by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an AM. Best Rating of A -VII, or better. Verification of Coverage Consultant must furnish acceptable insmance certificates and mandatory endorsements ( or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to conunencement of the Contract. City retains the right to demand verification of compliance at any time duringthe Contract tenn. Subconsultants Consultant shall require and ve1ify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant 's insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the hi gher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the 1i ght to modify these insurance requirements/coverage based on the nature of the risk , prior expe1ience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. Exh . D-Insurance Requirements for Design Profess ionals & Co nsultants Con tra cts Form Updated Feb. 2018 2 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /DD/YYYY) ~ 02/13/2018 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 NO T CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER , AND THE CERTIFICAT E HOLDER. IMPORTANT: If th e ce rtific ate holder is an ADDITIONAL INSURED , th e policy(i es ) mu st have ADDITIONAL INSURED prov isions or be endorsed . If SUBROGATION IS WAIVED , subj ect to the term s and co nd iti ons of th e pol icy, cert ain poli ci es may requi re an en dorse ment. A statemen t on th is ce rtifi ca te does not confer rights to the certi fi cate holde r in lieu of such e ndorsement(s). PRODUCER CONTAC T Brooke Steiner NAME : C&W Insurance flJ8NJ0 Extl : (785)537-1600 I rtit Nol (785)537-1657 555 Poyntz Avenue, Suite 205 E-MA IL bsteiner@charl sonwilson.com ADDRESS : P.O . Box 1989 INSURER(S) A FFORD ING COVERAGE NA IC # Manhattan KS 66505-1989 INSURER A : Hartford Fire Insurance Company 19682 IN SURE D INSUR ER B: Rated by Multiple Companies 00914 Learning Resources Network INSUR ER C: Chubb Insurance Companies Po Box 9 INSURER D : INSURER E : River Falls WI 54022 INSURER F: COVERAGES CERTIFICATE NUMBER : Master2017-2018 REVISION NU MBER : TH IS IS TO CERTIFY THAT THE POLIC IES OF INSURANCE LI STED BEL OW HAV E BEEN ISSUED TO TH E INSURED NAM ED ABO VE FOR THE POLICY PERIOD INDICATED . NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THI S C ERT IFICATE MAY BE ISSUED OR MAY PERTAIN, TH E INSURANCE AFF ORD ED BY TH E PO LI CI ES DESCRIB ED HEREIN IS SUBJECT TO AL L THE TERMS , EXC LUS IONS AND CONDITIONS OF SUCH POLIC IES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PA ID CLAIMS . INSR MuUL ~Ut,t POLI CY EFF POLICY EXP LT R TYPE OF INSURANCE INSD V>N D PO LI CY NUMBER (MM /DD/YYYY) (MM/DD/YYYY) LI MITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE s 1,000,000 -~ CLAIMS-MADE [8] OCCUR DAMAGto TU RENTED 300,000 PREMISES /Ea occurrence) s - MED EXP (Any one person ) s 10,000 -A y 37SBAAI0 3 16 12/16/2017 12/16/2018 PERSONAL & A DV IN JU RY $ 1,000,000 >-- GEN'L AGGR EGATE LIMIT APPLIES PER: GEN ER AL AGGREGATE s 2 ,000 ,000 ~ POLICY D .m?i: C8l LOC PRODUCTS • COMP/O P AGG 5 2,000,000 OTHER: Hired Auto s 1,000,000 AUTOMOB ILE LI ABILITY COMBINE D SINGL E LIMIT s /Ea accident\ -ANY AUTO BODILY INJURY (Per person) s -OWNED -SCHEDULED A UTOS ONLY A UTOS BODILY INJURY (Per accident) s -HIRED -NON-OW NED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY (Per accident) s --s X UMBREL LA LIAS ~ OCCUR EAC H OCCURRENCE s 1,000 ,000 -3 7SBAAI0316 12/16/2 017 12/16/2018 1,000,000 A EXCESS LI AB CLAIMS-MADE AGGR EGATE s DED / XI RETENTION s 0 s WORK ERS COMPENSATION X I ~ffTuTE I I OTH· A ND EMP L OY ERS' LIABILITY ER Y/N ANY PROPRI ETOR/PARTNER/EXECUTI V E ~ 37WECG L8009 12/16/2017 12/16/2018 E.L. EACH ACCID ENT s 1,000,000 B OFFICER/MEMBER EXC LUDED? N/A (Mandatory in NH) E.L. DISEASE· EA EMPLOYEE s 1,000 ,000 If yes, describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LI MI T s C Professio nal Liability 386668 1 04/26/2018 04/26/2019 $2 ,000 ,000 DESCRIPTION OF OPERATIONS / LOCATIONS/ V EHIC LES (ACORD 101 , Additional Remarks Schedule, may be attached if more space is req uired) CERTIFICATE HOLDER CANCELLATION SHOUL D A NY OF THE AB OVE DE SCRI BE D PO LI CIE S BE CANCE LL ED BEF OR E THE EXPIRATION DATE THE REO F, NO TI CE WILL BE DE LI VER ED IN City of Cupertino Attn: Recreati on and Community Services ACCOR DANCE WITH TH E PO LI CY PROV ISIO NS. 10300 Torre Ave A UTHORIZED REPRESENTATIVE Cupertino CA 95014 ~L--~ I © 19 88-2 015 A CORD C O RP O RATI O N . All r i g hts r eserved. A C O RD 25 (2 016/03) The A CO R D n a m e an d log o a r e r egistere d marks o f AC ORD POLICY NUMBER: 37 SBA AI0316 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON -ORGANIZATION PATTY PAULINO , SECRETARY II MIAMI DADE COLLEGE -KENDALL CAMPUS SCHOOL OF COMMUNITY EDUCATION 11011 SW 10TH ST. MIAMI , FL 33176 FRANK M. FALCETTA GEORGIA PERIMETER COLLEGE CENTER FOR CONTINUING & CORPORATE EDUCATION 652 NORTH INDIAN CREEK DRIVE CLARKSTON, GA 30021 TRUCKEE MEADOWS COMMUNITY COLLEGE 5270 NEIL ROAD RENO, NV 89502 SMG & GIMTCA 1 INTERNATIONAL DRIVE PO BOX 248 SAVANNAH , GA 31402 -0248 RE: LOC 001 BLVD 001 PIKES PEAK COMMUNITY COLLEGE 5675 SOUTH ACADEMY BLVD COLORADO SPRINGS , CO 80906 LOC 001 BLDG 001 PIMA COUNTY COMMUNITY COLLEGE DISTRICT 4905D EAST BROADWAY BOULEVARD TUCSON , AZ 85709 LOC 002 , BLDG 001 THE CITY OF CUPERTINO , ITS CITY COUNCIL , BOARDS AND COMM! SS IONS , OFF! CERS, OFF! CIALS, EMPLOYEES, AGENTS, SERVANTS AND VOLUNTEERS Form IH 12 00 11 85 T SEQ. NO. 001 Printed in U.S.A. Page 001 (CONTINUED ON NEXT PAGE) Process Date : 02/09/18 Expiration Date: 12/16/18 POLICY NUMBER: 37 SBA AI0316 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON -ORGANIZATION 10300 TORRE AVE CUPERTINO, CA 95014 ATTN : RECREATION AND COMMUNITY SERVICES Form IH 12 00 11 85 T SEQ. NO. 001 Printed in U.S.A. Page 002 (CONTINUED ON NEXT PAGE) Process Date: 02/09/18 Expiration Date: 12/16/18