SERVICE PROVIDER AGREEMENT
This SERVICE PROVIDER AGREEMENT (“Agreement”) is entered into this ___ day of ____, 2022 (“Effective Date ”), by and between the CITY OF ALAMEDA, a municipal corporation (“the City”), and SEED Collaborative, a LLC, whose address is 8467 S Van Ness Avenue, Inglewood, CA 90305 (“ Provider”), in reference to the following facts and circumstances:
RECITALS
A. The City is a municipal corporation duly organized and validl y existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. The City is in need of the following services: consulting services and development of City- wide Diversity, Equity, Inclusion, and Belonging Plan. The Plan will serve as a guide to achieve equitable structures, policies and practices and advance a more equitable inclusive and diverse City. The City reached out to all cities in the NorCal Human Resources Director group to request information on groups currently performing this work for other cities. The City compiled a list from the responses received and reached out to determine who wo uld be the best fit. The City conducted final interviews with two firms and at the conclusion of the interview process selected SEED Collaborative.
C. Provider is specially trained, experienced and competent to p erform the special services which will be required by this Agreement and has successfully co mpleted this work for other agencies.
D. The City and Provider desire to enter into an agreement for s uch services, provided in Exhibit A. upon the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the forgoing, which are inc orporated herein by reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Provider agree as follows:
1. TERM:
The term of this Agreement shall commence on the Effective Date and shall terminate on the 30 day of June of 2024, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Provider agrees to do all necessary work at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all necessary work included in Exhibit A as requested.
3. COMPENSATION TO PROVIDER:
a. By the 15 th day of each month, Provider shall submit to the City an invoice for the total amount of work done the p revious month. Pricing and acco unting of charges are to be according to the fee schedule as set forth in Exhibit B and incorporated herein by this reference. b. City shall provide compensation to Provider as set for th in Exhibit B, in an amount not to exceed $275,000.
4. TIME IS OF THE ESSENCE:
Provider and City agree that time is of the essence regarding t he performance of this Agreement.
5. STANDARD OF CARE:
Provider agrees to perform all services hereunder in a manner c ommensurate with the prevailing standards of like professionals or service providers, as applicable, in the San Francisco Bay Area and agrees that all services shall be performed by qua lified and experienced personnel who are not employed by the City.
6. INDEPENDENT PARTIES:
Provider hereby declares that Provider is engaged as an independent business and Provider agrees to perform the services as an independent contractor. The manner and means of conducting the services and tasks are under the control of Provider except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Provider’s se rvices. None of the benefits provided by the City to its employees, including but not limite d to unemployment insurance, workers’ compensation plans, vacation and sick leave, are available from the City to Provider, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes n ormally associated with an em ployer-employee relationship from any compensation due to Provi der. Payments of the above it ems, if required, are the responsibility of Provider.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Provider assumes any and all re sponsibility for verifying the i dentity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Provider shall indemnify, defend, and hold the City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Provider.
8. NON-DISCRIMINATION:
Consistent with the City’s polic y and state and federal law that harassment and discrimination are unacceptable conduct, Provider and its employees, contractors, and agents shall not harass or discriminate against any job applicant, City employee, or any other person on the basis of any kind of any statutorily (federal, state or local) protected class, including but not limited to: race, religious creed, color, national origin, ancestry, di sability (both mental and physical)
including HIV and AIDS, medical condition (e.g. cancer), genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation, military and veteran status or legitimate union activities. Provider agrees that any violation of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
a. To the fullest extent permitted by law, Provider shall indemn ify, defend (with counsel acceptable to the City) and hold harmless the City, its City Council, boards, commissions, officials, employees, agents and volunteers (“Indemnitees”) fro m and against any and all loss, damages, liability, obligations, claims, suits, judgments, costs and expenses whatsoever, including reasonable attorney’s fees and costs of litigation (“Claims”), arising from or in any manner connected to Provider’s performance of its obligations under th i s A g r e e m e n t o r o u t o f t h e operations conducted by Provider. If any of the Indemnitees are found by a trier of fact to have been negligent, Provide shall have the right to seek reimbursement from City in proportion to that amount of negligence attributed to Indemnitees Provider shall no t have any obligations to indemnify Indemnitees if the loss or damage is found to have re sulted solely from the negligence or the willful misconduct of the City. The defense and indemnifi cation obligations of this Agreement are undertaken in addition to, and shall not in any w ay be limited by, the insurance obligations contained in this Agreement.
b. As to Claims for professional liability only, Provider’s obli gation to defend Indemnitees (as set forth above) is limited as provided in California Civil Code Section 2782.8. c. Provider’s obligation to indemn ify, defend and hold harmless Indemnities shall expressly survive the expiration or early termination of this Agreement.
10. INSURANCE:
a. On or before the commencement of the terms of this Agreement, Provider shall furnish the City’s Risk Manager with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with Sections
10.b. (1) through (5) Such certificates, which do not limit Provider’s indemnification, shall also contain substantially the following statement:
“Should any of the above insuran ce covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the City of Alameda. Attention: Risk Manager.” Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company licensed to offer insurance business in the State of California with a current A.M. Best’s rating of no less than A:VII or Standard & Poor’s Rating (if rated) of at least BBB unless otherwise acceptable to the City. Provider shall deliver updated insurance certificates to the City at the address described in Section 17.f. prior to the exp iration of the existing insurance certificate for the duration of the term of Agreement. Endorsements naming the City, its City Coun cil, boards, commissions,
officials, employees, agents, and volunteers as additional insur ed shall be submitted with the insurance certificates.
_____________
Provider Initials
b. COVERAGE REQUIREMENTS:
Provider shall maintain insurance coverage and limits at least as broad as:
(1) Workers’ Compensation:
Statutory coverage as required by the State of California. (2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $1,000,000 each occurrence
$2,000,000 aggregate
If submitted, combined single limit policy with per occurrence limits in the amounts of $2,000,000 and aggregate limits in the amounts of $4 ,000,000 will be considered equivalent to the required minimum limits shown abov e. Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required. (3) Automotive:
Comprehensive automobile liability coverage (any auto) in the following minimum limits:
Bodily injury: $1,000,000 each occurrence
Property Damage: $1,000,000 each occurrence
or
Combined Single Limit: $2,000,000 each occurrence
Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required. (4) Professional Liability:
Professional liability insurance which includes coverage appropriate for the professional acts, errors and o missions of Provider’s profession a n d w o r k hereunder, including, but not limited to, technology professional liability errors and omissions if the services being p rovided are technology-based, in the following minimum limits:
$2,000,000 each occurrence
Technology professional liability errors and omissions shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of Provider. If not covered under Provider’s liability policy, such “property” coverage of the City may be endorsed onto Provider’s Cyber Liability Policy as covered property as follows: cyber liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City that will be in the care, custody, or control of Provider.
As to commercial general liability and automobile liability ins urance, such insurance will provide that it constitutes primary insurance with respect to c laims insured by such policy, and, except with respect to limits, that insurance applies separately to each insured against whom claim is made or suit is brought. Such insurance is not additional to or contributing with any other insurance carried by or for the benefit of the City.
c. SUBROGATION WAIVER:
Provider hereby agrees to waive rights of subrogation that any insurer of Provider may acquire from Provider by virtue of the payment of any loss. Provider ag rees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogat ion in favor of the City for all work performed by Provider, its employees, agents and subcontractors. d. FAILURE TO SECURE:
If Provider at any time during the term hereof should fail to secure or maintain the foregoing insurance, the City shall be permitted to obtain such insurance in Provider’s name or as an agent of Provider and shall be compensated by Provider for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.
e. ADDITIONAL INSUREDS:
The City, its City Council, boards, commissions, officials, employees, agents, and volunteers shall be named as additional insured(s) under all insurance coverages, except workers’ compensation and professional liability insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
Additional Insured coverage under Provider’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance. Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured(s).
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by the City are not represented as being sufficient to protect Provider. Provider is advised to consult Provider’s insurance broker to determine adequate coverage for Provider. The coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of the coverage carried by or available to Provider; whichever is greater.
11. CONFLICT OF INTEREST:
Provider warrants that it is not a conflict of interest for Pro vider to perform the services required by this Agreement. Provider may be required to fill o ut a conflict of interest form if the services provided under this Agreement require Provider to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.
12. PROHIBITION AGAINST TRANSFERS:
a. Provider shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or i ndirectly, by operation of law o r otherwise, without prior written consent of the City Manager. Provider shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desire d transfer. The City Manager or their designee may consent or reject such request in their sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money against the City under this Agreement may be assigned by Provider to a bank, trust company or other financial institution without prior written consent. b. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock, membership interest, partnership interest, or the equivalent, which shall result in changing the control of Provider, shall be construed as an assignment of this Agreement.
Control means fifty percent or more of the voting power of Provider.
13. APPROVAL OF SUB-PROVIDERS:
a. Only those persons and/or businesses whose names and resumés a re attached to this Agreement shall be used in the performance of this Agreement. However, if after the start of this Agreement, Provider wishes to use sub-providers, at no additional costs to the City, then Provider shall submit a written request for consent to add sub-providers including the names of the sub- providers and the reasons for the request to the City Manager at least five (5) days in advance. The City Manager may consent or reject such requests in their sole and absolute discretion. b. Each sub-provider shall be re quired to furnish proof of worke rs’ compensation insurance and shall also be required to carry general, automobi le and professional liability insurance (as applicable) in reasonable conformity to the insurance carried by Provider.
c. In addition, any tasks or services performed by sub-providers shall be subject to each provision of this Agreement. Provider shall include the following language in their agreement with any sub-provider: “Sub-providers hired by Provider agree to be bound to Provider and the City in the same manner and to the same extent as Provider is bound to the City.” d. The requirements in this Sec tion 13 shall not apply to persons who are merely providing materials, supplies, data or information that Provider then analyzes and incorporates into its work product.
14. PERMITS AND LICENSES:
Provider, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City business license that may be required in connection with the performance of the services and tasks hereunder.
15. REPORTS:
a. Each and every report, draft, work product, map, record and o ther document produced, prepared or caused to be prepared by Provider pursuant to or in connection with this Agreement shall be the exclusive property of the City.
b. No report, information or other data given to or prepared or assembled by Provider pursuant to this Agreement shall be made available to any indiv idual or organization by Provider without prior approval of the City Manager or their designee. c. Provider shall, at such time and in such form as City Manager or their designee may require, furnish reports concerning the status of services and tasks required under this Agreement.
16. RECORDS:
a. Provider shall maintain complete and accurate records with re spect to the services, tasks, work, documents and data in sufficient detail to permit an evaluation of Provider’s performance under the Agreement, as well as maintain books and records related to sales, costs, expenses, receipts and other such information required by the C ity that relate to the performance of the services and tasks under this Agreement (collectively the “Records”). b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Provider shall provide free access to the Records to the representatives of the City or its designees during regular business hours upon reasonable prior notice. The City has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary, and to allow insp ection of all proceedings and activities related to this Agreement. Such Records, together with supporting documents, shall be kept separate from other documents and records and shall be mai ntained by Provider for a period of three (3) years after receipt of final payment.
c. If supplemental examination or audit of the Records is necessa ry due to concerns raised by the City’s preliminary examination or audit of record s, and the City’s supplemental examination or audit of the records discloses a failure to adhe re to appropriate internal financial c o n tr o ls , o r o th e r b r ea c h o f th is Ag r ee me n t o r f ailu r e to a c t in good faith, then Provider shall
reimburse the City for all reasona ble costs and expenses associ ated with the supplemental examination or audit.
17. NOTICES:
a. All notices shall be in writing and delivered: (i) by hand; or (ii) sent by registered, express, or certified mail, with return receipt requested or wi th delivery confirmation requested from the U.S. postal service; or (iii) sent by overnight or same day courier service at the party’s respective address listed in this Section.
b. Each notice shall be deemed to have been received on the earl ier to occur of: (x) actual delivery or the date on which delivery is refused; or (y) three (3) days after notice is deposited in the U.S. mail or with a courier service in the man ner described above (Sundays and City holidays excepted).
c. Either party may, at any time, change its notice address (othe r than to a post office box address) by giving the other party three (3) days prior written notice of the new address. d. All notices, demands, requests , or approvals from Provider to the City shall be addressed to the City at:
City of Alameda
Human Resources Department
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: Nancy Bronstein, Human Resources Director
[email protected]
e. All notices, demands, requests , or approvals from the City to Provider shall be addressed to Provider at:
SEED Collaborative
8467 S Van Ness Avenue
Inglewood, CA 90305
Attn: Paul C. Hudson
[email protected]
18. SAFETY:
a. Provider will be solely and completely responsible for condit ions of all vehicles owned or operated by Provider, i ncluding the safety of all pers ons and property during performance of the services and tasks under this Agreement. Th is requirement will apply continuously and not be limited to normal working hours. In addition, Provider will comply with all safety provisions in conformance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent state law, and all other applicable federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Agreement. Where any of these are in conflict, the more stringent requirements will be followed. Provider’s failure
to thoroughly familiarize itself with the aforementioned safety provisions will not relieve it from compliance with the obligations and penalties set forth herein. b. Provider will immediately notif y the City within 24 hours of any incident of death, serious personal injury or substantial property damage that occ urs in connection with the performance of this Agreement. Provider will promptly submit t o the City a written report of all incidents that occur in connecti on with this Agreement. This r eport must include the following information: (i) name and address of injured or deceased person (s); (ii) name and address of Provider’s employee(s) involved in the incident; (iii) name and address of Provider’s liability insurance carrier; (iv) a detailed description of the incident; and (v) a police report.
19. TERMINATION:
a. In the event Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Provider shall be deemed in default in the performance of this Agreement. If such default is not cured within two (2) b usiness days after receipt by Provider from the City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the City may thereafter immediately terminate the Agreement forthwith by giving to Provider written notice thereof. b. The foregoing notwithstanding, the City shall have the option , at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days’ prior written notice to Provider as provided herein.
c. Upon termination of this Agreement either for cause or for con venience, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effectiv e date of termination. The oblig ation of the parties under this Section 19.c. shall survive the expiration or early termination of this Agreement.
20. ATTORNEYS’ FEES:
In the event of the bringing of any action or suit by a party hereto against the other party by reason of any breach of any covenants, conditions, obligation orprovision arising out of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses of the action or suit, including reasonable attorney’s fees, experts’ fees, all court costs and other costs of action incurred by the preva iling party in connection with the prosecution or defense of such action and enforcing or establis hing its rights hereunder (whether or not such action is prosecuted to a judgment). For the purposes of this Agreement, reasonable fees of attorneys of the Alameda City Attorney’s office shall be based on the fees regularly charged by private attorneys with the equivalent number of years of exp erience in the subject matter area of the law for which the services were rendered who practice in Alameda County in law firms with approximately the same number of attorneys as employed by the Alameda City Attorney’s Office.
21. HEALTH AND SAFETY REQUIREMENTS.
Provider acknowledges that the City shall have the right to impose , at the City’s sole discretion, requirements that it deems are necessary to protect the health and safety of the City employees, residents, and visitors. Provider agrees to comply with all such requirements, including, but not limited to, mandatory vaccinations, the use of personal protective equipment
(e.g. masks), physical distancing, and health screenings. Provi der also agrees to make available to the City, at the City’s request, records to demonstrate Provider’s compliance with this Section.
22. COMPLIANCE WITH ALL APPLICABLE LAWS:
During the term of this Agreement, Provider shall keep fully in formed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Alameda which affect the manner in which the services or tasks are to be performed by Provider, as well as all such orders and decrees of bodies or tribunals having any j urisdiction or authority over the same. Provider shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by the City.
23. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of California without regard to any choice of law rules which may d irect the application of laws of another jurisdiction. The Agreeme nt and obligations of the par ties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisd iction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Alameda, State of California.
24. WAIVER:
A waiver by the City of any breach of any term, covenant, or co ndition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
25. INTEGRATED CONTRACT:
Subject to the language of Sec tion 30, the Recitals and exhibits are a material part of this Agreement and are expressly incorporated herein. This Agreement represents the full and complete understanding of every kind or nature whatsoever betwe en the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or n ature are merged herein. No verbal agreement or implied cove nant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both the City and Provider.
26. CAPTIONS:
The captions 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.
27. COUNTERPARTS:
This Agreement may be executed in any number of counterparts (i ncluding by fax, PDF, DocuSign, or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
28. SIGNATORY:
By signing this Agreement, signatory warrants and represents th at they executed this Agreement in their authorized capacity and that by their signature on this Agreement, they or the entity upon behalf of which they acted, executed this Agreement.
29. CONTROLLING AGREEMENT:
In the event of a conflict between the terms and conditions of this Agreement (as amended, supplemented, restated or otherw ise modified from time to time) and any other terms and conditions wherever contained, including, without limitation, terms and conditions included within exhibits, the terms and conditions of this Agreement shall control and be primary. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed on its behalf as of the Effective Date.
SEED COLLABORATIVE, LLC CITY OF ALAMEDA
a municipal corporation
Tara Taylor Eric J. Levitt
Chief Operating Officer City Manager
RECOMMENDED FOR APPROVAL
Paul C. Hudson
Senior Consultant & Co-Founder
Nancy Bronstein
Human Resources Director
APPROVED AS TO FORM:
Alan M. Cohen
Assistant City Attorney
City of Alameda ͻ California
Certification of Compliance
With the City of Alameda’s Vaccination Requirement
The City of Alameda (“City”) requires all individuals who perform work for the City to be fully vaccinatedi against COVID-19. All service providers and contractors for the City must sign the following statement certifying compliance with this requirement.
By signing below, I certify that all of our personnel who are performing work for the City are fully vaccinated against COVID-19. I also acknowledge that the City reserves the right to review any relevant records to demonstrate our compliance with this requirement.
I declare under penalty of perjury that the foregoing is true and correct.
SEED Collaborative, LLC Date:______________________
__________________________________
By: Paul C. Hudson
Its Senior Consultant & Co-Founder
i For the purposes of this Certification of Compliance, an individual is considered to be fully vaccinated if two weeks have passed since their second dose in a 2-dose series (such as the Pfizer or Moderna vaccines) or if two weeks have passed since receiving their single-dose vaccine (such as Johnson & Johnson’s Janssen vaccine).
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