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22-034 Boucher Law for Chief Negotiator Services
Boucher Law for Chief Negotiator Services Page 1 of 9 Professional/Consulting Contracts /Version: October 2021 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Boucher Law (“Contractor”), for Chief Negotiator Services, and is effective on the last date signed below (“Effective Date”). 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. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on July 31, 2022 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by July 31, 2022. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 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 $47,000.00 (“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 Boucher Law for Chief Negotiator Services Page 2 of 9 Professional/Consulting Contracts /Version: October 2021 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. 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, if required by the Cupertino Municipal Code. 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 Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. 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. Boucher Law for Chief Negotiator Services Page 3 of 9 Professional/Consulting Contracts /Version: October 2021 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 upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of the 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 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 (4) years from the date of City’s final payment. Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records Boucher Law for Chief Negotiator Services Page 4 of 9 Professional/Consulting Contracts /Version: October 2021 Act, California Government Code section 6250 et seq. Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 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 co ntrol 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 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 indir ectly 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. 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 Boucher Law for Chief Negotiator Services Page 5 of 9 Professional/Consulting Contracts /Version: October 2021 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. 11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these r equirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6. This Section 11 shall survive termination of the Agreement. 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. 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. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. Boucher Law for Chief Negotiator Services Page 6 of 9 Professional/Consulting Contracts /Version: October 2021 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 Title 2 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 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 Christopher Boucher 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 Boucher Law for Chief Negotiator Services Page 7 of 9 Professional/Consulting Contracts /Version: October 2021 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 ever y 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 any term, clause, or provision of the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling. 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 Boucher Law for Chief Negotiator Services Page 8 of 9 Professional/Consulting Contracts /Version: October 2021 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 Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention: Kristina Alfaro Email: KristinaA@cupertino.org To Contractor: Boucher Law 2081 Center Street Berkeley, CA 94704 Attention: Christopher Boucher Email: christopher@boucher.law 27. 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. CITY OF CUPERTINO CONTRACTOR A Municipal Corporation By By Name Name Title Title Date Date Christopher Boucher President Mar 18, 2022 Director of Admin Services Kristina Alfaro Mar 18, 2022 Boucher Law for Chief Negotiator Services Page 9 of 9 Professional/Consulting Contracts /Version: October 2021 APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Christopher D. Jensen Mar 18, 2022 Page 8 Berkeley | Glendale www.Boucher.Law 3. SCOPE OF SERVICES AND SCHEDULE PROJECT APPROACH AND TIMELINE Before negotiations commence, we will meet with the City to learn more about the history of the bargaining units, the issues that have arisen during the pendency of the labor agreement, and the City’s present and future needs and interests, including any new challenges presented by COVID- 19.2 We will then work with the City to determine what proposals to make, to obtain the authority from the City Council, and to obtain authority on operational issues from the appropriate management personnel. We also will work with the City to determine the costing of the City’s proposals, as well as those obtained from the unions. Separately, we also recommend conducting a survey to help ascertain the City’s relevant market position when it comes to wages, benefits, and total compensation for bargaining purposes. As market position and the agency’s ability to pay are key factors in our assessment of the City’s position, we have found that the survey information becomes an important piece of evidence in the event the negotiations end up in factfinding. Our team is available to assist the City on this endeavor if requested to do so. In terms of a timetable, below please find an estimate of major milestones and deliverables: Est. Timeframe Progress March 2022 Commence kickoff with City management to convene negotiations planning. March 2022 Complete survey document and develop overall negotiations strategy for bargaining; convene “meet and greet” with City’s bargaining unit representatives. March – June 2022 Conduct labor negotiations; execute tentative agreements and draft successor MOU for parties’ review and ratification. We will proactively schedule bargaining sessions on a weekly basis during the negotiation process, and should additional bargaining sessions need to be held beyond the expiration of the current MOU, we also recommend setting ground rules from the onset of negotiations that the existing terms and conditions will continue in place. The issue of retroactive salary adjustments may also arise, which we will be prepared to recommend the best approach with the City at that time. A MODERN “INTEREST-BASED” BARGAINING APPROACH Specifically, when it comes to our style of negotiations, we employ what we call a modern “interest-based” bargaining approach. Especially where labor collaboration is needed for success, we utilize analytics and data in an open and transparent manner to seek buy in and agreement from the agency’s labor partners. As part of this collaborative process, instead of exchanging proposals from the onset, we begin negotiations with educational sessions involving City leadership, in which we share about the current state of the City, financial status, present and 2 Given Christopher’s current representation of the City of Cupertino with respect to labor and employment law matters, we anticipate that the need to get “up to speed” would be minimal, as we have advised the City on most labor matters over the past several years. Exhibits A and B Page 9 Berkeley | Glendale www.Boucher.Law future challenges, and a realistic outlook on the community and business development opportunities which are on the horizon. When employing this approach, we find that it not only satisfies the union’s usual requests for information, but by proactively addressing the “elephant in the room” in an honest, open and transparent manner, we also foster trust, and this style anchors the negotiation process on the premise of data and openness. At times when emotions are high, we rely on the facts and analytics to provide insights, which will guide the parties through the emotional aspects which are inherent in the labor negotiations process. We conduct the negotiations in a collaborative, respectful, and professional manner. We carefully draft proposals and counter-proposals to include clear language. We document all tentative agreements for the parties to sign. We maintain communications with the client concerning the status of the negotiations. We attempt to maintain a positive relationship with the labor organization throughout the process. Our team will further coordinate the negotiations internally and keep each other apprised of the status of the negotiations and proposals. While this unique negotiation approach has not yet been codified in the form of a recognizable terminology, we have successfully employed this approach on behalf of a number of public agency clients, and we have found this process to be particularly effective in considering the City’s desire for a collaborative and respectful manner. LABOR RELATIONS – LEGAL SERVICES As one of California’s respected labor and employment law firms, we have experience representing public agencies in labor negotiations, disciplinary and grievance arbitrations, proceedings before the Public Employment Relations Board (PERB). We have expertise in all areas of employment law, including the Meyers-Milias-Brown Act (“MMBA”) and other public employment labor relations statutes, employment discrimination laws, disability discrimination and accommodation laws, family and medical leave laws, First Amendment and due process Constitutional obligations, and the Fair Labor Standards Act (FLSA). We have extensive experience regarding compliance with the various California public sector labor relations statutes. In addition, our firm’s Founding Attorney, Christopher K. Boucher, possesses nearly two decades of experience in California public sector labor relations, and he regularly advise our firm’s clients about their obligations to meet and confer with unions before implementing managerial or operational changes that affect the wages, hours or terms and conditions of employment of represented employees. We are also frequently called upon to assist our clients with interpretation and administration of their labor agreements and responses to grievances. In addition, Christopher has experience in seeking emergency injunctions in light of labor activities to prevent imminent threats to public health and safety. Currently, Christopher serves as labor and employment counsel to nearly two dozen public agencies including the cities of Carson, Cupertino, Fairfield, Half Moon Bay, Los Altos, Manteca, Napa, Richmond, San Anselmo, San Bruno, San Leandro, South Gate, Sunnyvale, Tracy and Vallejo; counties, including: El Dorado and Nevada; joint powers agencies and special districts, including: Alameda Health System, Coalition for Controlling Insurance Cost in California Schools (CICCS), Cosumnes Community Services District, CPS-HR, Montara Water & Sanitary District, North Marin Water District, San Mateo County Transit District, and Sewer Authority Mid-Coastside; nonprofit Page 10 Berkeley | Glendale www.Boucher.Law organizations, including: Alameda Health System Foundation, Asian Americans for Community Involvement (AACI), Asian Art Museum, and Child Start; and other public entities, including: the University of California, Berkeley and the Superior Court of California, County of San Francisco. 4. FEE SCHEDULE For this project, we propose a blended rate of $190 per hour for our consultant staff 3 and $265 per hour for our attorney staff.4 Travel time and waiting time shall be charged to City based on travel from our Berkeley office. Advanced retainer fees are not required, and services will be billed on an hourly basis. The above rates, effective January 1, 2022, are subject to change upon thirty (30) days advance written notice or by agreement as part of this procurement process. An additional surcharge of $25.00 per hour shall apply for complex matters, including case preparation, representation and attendance at litigation or administrative proceedings (including factfinding and PERB), court trials, arbitrations, administrative hearings, discovery hearings, media inquiries and responses, and testifying at trials and hearings related to the scope of services provided under this Agreement. In addition, all reimbursable expenses are billed to clients at cost and there is no mark-up. Reimbursable expenses include all costs and expenses reasonably incurred by our firm to render said professional services, including, but not limited to, mileage expenses at the rate allowed by the Internal Revenue Service; bridge tolls; parking; process servers' fees, fees fixed by law or assessed by courts or other agencies, court reporters' fees, deposition costs, messenger and other delivery fees, postage, photocopying, and investigation expenses, consultants' fees, expert witness fees and other similar items. In-house copying and printing will be charged at $0.15 per page for black and white copies and $0.50 per page for color copies. 5. REFERENCES We invite you to contact the following clients for whom our team has worked with to provide labor negotiation services over the past five years: CLIENT/PROJECT(S) CONTACT(S) Child Start (SEIU, Local 1021) 439 Devlin Road Napa, CA 94558 Year: 2019 Debbie McGrath, Business Services Director (707) 252-8931 dmcgrath@childstartinc.org 3 For tasks such as background research and salary surveys, we anticipate that other consultants from our firm may assist as needed, and the consultant rate is proposed as a blended rate for all consultant services. 4 As a token of our appreciation for the continued opportunity of serving the City of Cupertino, this fee schedule reflects a discount from our standard public entity rates, which are $225/hour for our consultant staff and $340/hour for our attorney staff. Exhibit C Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022 Consultant shall procure prior to commencement of Services 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 1. 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 Form 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 occurrence 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 -contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (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 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 property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. 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 claim, $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 form 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. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self -insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insu rance 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 performed 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 A.M. Best Rating of A -VII, or better. Verification of Coverage Consultant must furnish acceptable insurance 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 commencement of the Contrac t. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Consultant shall require and verify 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 higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNED AUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ 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 CONTRACT OR 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 POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: 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 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 02/04/2022 BARNEY FONG Shield One Insurance Services (510)962-2780 (510)372-0425 433 Estudillo Ave #103 SHIELDONEINS@COMCAST.NETSan Leandro, CA 94577 Phone: (510) 962-2780 Fax: (510) 372-0425 CHUBB (ACE PROP&CAS INS COMPANY)20699 BOUCHER LAW PC PROGRESSIVE (UNITED FINANCIAL CAS CO)11770 EMPLOYERS PREFERRED INSURANCE CO 31283(NCCI) 2081 CENTER STREET UNITED STATES LIABILITY INS COMPANY 25895 BERKELEY CA 94704 01/01/2022AX 2,000,000D95187444 X X X 1,000,000 5,000 4,000,000 X 4,000,000 01/01/2023 1,000,000 B X 04291124-0 01/01/2022 07/01/2022 X X X EIG 4662047 01 X C N 1,000,000X01/01/2022 01/01/2023 1,000,000 1,000,000 D COMMERCIAL UMBRELLA CUP1567664 01/11/2022 Each Occurrence01/11/2022 $1,000,000 General Aggregate $1,000,000 ATTORNEY AT LAW / VARIOUS LOCATIONS / 2019 HYUNDAI KONA ELECTRIC (LAST 4 OF VIN 9915) ADDITIONAL INSURED : The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers. CITY OF CUPERTINO 10300 TORRES AVENUE CUPERTINO, CA 95014 DocuSign Envelope ID: 7492E36B-9646-4100-8519-E636890A69B9 2/4/2022 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 4-84) This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) This endorsement, effective Policy No. Endorsement No.Issued to Premium By: Carrier Code (Ed. 4-84) Authorized Representative Countersigned at on at 12:01 AM standard time, forms a part of Of the WC 04 03 06 © 1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved. Schedule Person or Organization Job Description WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be _____% of the California workers' compensation premium otherwise due on such remuneration. With respect to all employees subject to the workers' compensation laws of the state of California, any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2 This policy is subject to a minimum charge of $250 for the issuance of waivers of subrogation 01/01/2022 EIG 4662047 01 CHRISTOPHER BOUCHER 00920 EMPLOYERS PREFERRED INS. CO. Boucher Law for Chief Negotiator Services Final Audit Report 2022-03-18 Created:2022-03-17 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAhNl_bZc7bg4ts1Qtg2qCdPjoOh8MYo_J "Boucher Law for Chief Negotiator Services" History Document created by City of Cupertino (webmaster@cupertino.org) 2022-03-17 - 11:29:40 PM GMT- IP address: 35.229.54.2 Document emailed to Mariela Vargas (marielar@cupertino.org) for approval 2022-03-17 - 11:32:11 PM GMT Email viewed by Mariela Vargas (marielar@cupertino.org) 2022-03-17 - 11:34:28 PM GMT- IP address: 104.47.73.254 Document approved by Mariela Vargas (marielar@cupertino.org) Approval Date: 2022-03-17 - 11:35:08 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2022-03-17 - 11:35:13 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2022-03-18 - 0:06:55 AM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Christopher Boucher (christopher@boucher.law) for signature 2022-03-18 - 0:07:00 AM GMT Email viewed by Christopher Boucher (christopher@boucher.law) 2022-03-18 - 3:07:56 PM GMT- IP address: 74.125.209.38 Document e-signed by Christopher Boucher (christopher@boucher.law) Signature Date: 2022-03-18 - 3:22:21 PM GMT - Time Source: server- IP address: 159.65.97.75 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2022-03-18 - 3:22:27 PM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2022-03-18 - 3:25:00 PM GMT- IP address: 104.47.73.126 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2022-03-18 - 4:27:10 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Kristina Alfaro (kristinaa@cupertino.org) for signature 2022-03-18 - 4:27:16 PM GMT Email viewed by Kristina Alfaro (kristinaa@cupertino.org) 2022-03-18 - 5:47:17 PM GMT- IP address: 104.28.124.67 Document e-signed by Kristina Alfaro (kristinaa@cupertino.org) Signature Date: 2022-03-18 - 5:47:49 PM GMT - Time Source: server- IP address: 208.95.236.60 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2022-03-18 - 5:47:54 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2022-03-18 - 5:49:13 PM GMT- IP address: 104.47.74.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2022-03-18 - 5:49:21 PM GMT - Time Source: server- IP address: 69.110.137.176 Agreement completed. 2022-03-18 - 5:49:21 PM GMT