MASTER CONSULTANT AGREEMENT (MCA# 2020.1)
This Master Consultant Agreement ("Agreement") is made and entered on November 5,2022, by and between the City of East Palo Alto, a municipal corporation ("City"), and Good City Company, a California Corporation, hereinafter referred to as "Consultant", who agree as follows:
1. Services. The Consultant shall provide professional consulting services to the City on an as-needed basis pursuant to the Scope of Work set forth in Exhibit A, and the individual Approved Service Orders issued in accordance with the terms and conditions of this Master Consultant Agreement. The Consultant shall not perform any services until the City Manager or City Manager's designee has executed the service order for such work ("Approved Service Order").
2. Exhibits. The Master Consultant Agreement consists of this Agreement, all Approved Service Orders (defined in A-2 below) and the following exhibits, including attachments thereto, are incorporated herein by reference:
Exhibit A entitled: "General Services."
Exhibit A-1 entitled: "Scope of Work."
Exhibit A-2 entitled: "Service Order Form."
Exhibit B entitled: "Compensation."
Exhibit B-1 entitled: "Rate Schedule (if needed)."
Exhibit C entitled: "Insurance Requirements."
Exhibit D entitled: "Policy Against Discrimination, Harassment and Retaliation"
Payment. City shall pay Consultant for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled "Compensation." The payments specified in Exhibit B shall be the only payments to be made to Consultant for services rendered pursuant to this Agreement.
Term. The term of this Agreement shall commence on July 21, 2020 and shall continue in full force and effect until July 20, 2023. The terms may be extended as the agreement includes two (2) 6-month extensions, which may be approved at the discretion of the City Manager.
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5. Facilities and Equipment. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
6. Indemnification. Consultant shall indemnify, defend (with independent counsel approved by the City, and hold harmless the City, its officers, officials, directors, employees, agents, volunteers and affiliates and each of them from any and all claims, demands, causes of action, damages, costs, expenses, actual attorney's fees, Consultant's fees, expert fees, losses or liability, in law or in equity, of every kind and nature whatsoever arising out of or in connection with Consultant's operations, or any subconsultant's operations, to be performed under this Agreement, for the fullest extent permitted by law, with the exception of the sole active negligence or willful misconduct of the City.
The provisions of this section shall survive the expiration or termination of this Agreement and are not limited by any provisions relating to insurance in this Agreement.
7. Insurance Requirements. Consultant agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled "Insurance Requirements for Consultant." Failure to maintain required insurance at all times shall constitute a default and material breach.
8. Accident Reports. Consultant shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
9. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant's family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of East Palo Alto Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant's family, business, real property or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City.
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10. Independent Consultant. Consultant is an independent consultant.
Neither Consultant nor any of Consultant's officers, employees, agents or subconsultants, if any, is an employee of City by virtue of this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes services pursuant to this Agreement.
11. Licenses, Permits, Etc. Consultant represents and warrants to City that all Consultant services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Consultant has all the permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession.
12. Business License. Consultant, and its subconsultants, has obtained or agrees to apply prior to performing any services under this Agreement to City's Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement. The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Consultant until such business license(s) has been obtained.
13. Standard of Performance. Consultant shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by a member of Consultant's profession currently practicing in California.
Consultant is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation applicable federal, state, and local laws and regulations, and all other contingencies or considerations.
Consultant's responsibilities under this section shall not be delegated. Consultant shall be responsible to City for acts, errors, or omissions of Consultant's subconsultants.
Consultant is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work and shall prepare plans, reports, Master Consultant Agreement Page 3 of 9
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and/or other work products in such a way that additional costs will not be incurred or, beyond a project budget approved or amended by the City Manager or City Manager's designee.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Consultant is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Consultant of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Consultant.
14. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause by circumstances beyond either party's reasonable control, such as war, riots, strikes, lockouts, work slow down or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Consultant is unable to meet the completion date or schedule of services, Consultant shall inform the City Representative of the additional time required to perform the work and the City Representative may adjust the schedule.
15. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
16. Personnel. Consultant agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Consultant pursuant to this Agreement shall be the full and complete compensation to which Consultant and Consultant's officers, employees, agents, and subconsultants are entitled for performance of any work under this Agreement. Neither Consultant nor Consultant's officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Consultant. The City shall not be required to pay any workers' compensation insurance on behalf of Consultant.
Consultant shall pay, when and as due, any and all taxes incurred as a result of Master Consultant Agreement Page 4 of 9
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Consultant's compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Prevailing Wages for Public Works Projects. For public works projects, Consultant shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Consultant shall also comply with provisions of Labor Code section 1720 as applicable. Consultant shall maintain certified payroll records evidencing such payment of prevailing wages as required by law.
18. Consultant Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or City Manager's designee, Consultant shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
19. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Consultant.
Upon receipt of a notice of termination, Consultant shall perform no further work except as specified in the notice. Before the date of termination, Consultant shall deliver to City all work product, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Consultant for services performed in accordance with this Agreement before the date of termination. If this contract provides for payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Consultant for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Consultant for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
20. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Consultant resulting from services rendered pursuant to this Agreement, shall become the property of City. Consultant agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights Master Consultant Agreement Page 5 of 9
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in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Consultant makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
21. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Consultant in the performance of Consultant's services hereunder.
Assignment and Subcontracting. Consultant shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or City Manager's designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without said consent shall be void and of no effect.
If subcontracting of work is permitted, Consultant shall pay its subconsultant within ten (10) days of receipt of payment by City for work performed by a subconsultant and billed by the Consultant. Use of the term subconsultant in any other provision of this contract shall not be construed to imply authorization for Consultant to use subconsultants for performance of any service under this Agreement.
The City is an intended beneficiary of any work performed by Consultant's subconsultant for purposes of establishing a duty of care between the subconsultant and City.
Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
24. Non-Discrimination/Fair Employment Practices. Consultant shall comply with all applicable federal, state and local laws, rules and regulations in regard to nondiscrimination and non-harassment in employment because of race, color, ancestry, national origin, religion, sex, marital status, age, sexual orientation, medical condition or physical handicap. Consultant agrees to abide by the City's Policy Against Discrimination, Harassment and Retaliation as set out in attached Exhibit D.
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25. Official Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Jaime M. Fontes
City Manager
2415 University Avenue
East Palo Alto, CA 94303
If to Consultant: Aaron Aknin
Principal
Good City Company
1351 Laurel Street
San Carlos, CA 94070
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
26. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
28. Law Governing. This Agreement shall in all respects be governed by the law of the State of California without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of San Mateo County in the State of California or in the United States District Court, Northern District of California, San Francisco/Oakland Division, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
29. Waiver. Waiver by either party of any default, breach or condition Master Consultant Agreement Page 7 of 9
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precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
30. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
31. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neutral, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
32. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
33. Compliance with Laws. Consultant will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
34. Confidentiality. Consultant shall treat all records and work product prepared or maintained by Consultant in the performance of this Agreement as confidential and shall not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City records on information to any third party, other than its own employees, agents or subconsultants who have a need for the City records or information for the performance of services under this Agreement.
A violation by Consultant of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Consultant agrees and acknowledges that this confidentiality provision does not limit the City's disclosure as required by law, pursuant to a subpoena, the California Public Records Act, or Order of the Court.
35. News and Information Release. Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
36. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
37. Authority. The person signing this Agreement for Consultant hereby Master Consultant Agreement Page 8 of 9
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represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Consultant.
IN WITNESS WHEREOF, the parties have executed this Agreement by their respective duly authorized representatives as follows:
GOOD CITY COMPANY, CITY OF EAST PALO ALTO,
a California Corporation a municipal corporation
By:_
Aaron Aknin
Principal
10 / 29 / 20
DATE:
DATE 11/5/2020
2020 - 4263
East Palo Alto Business License No.
ATEST MAS
Walfred Solorzano, City Clerk
APPROVED AS TO CONTENT:
Amy Chen
Community & Economic Development
Director
APPROVED AS TO FORM:
City Attorney
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EXHIBIT A
GENERAL SERVICES
General Services.
Consultant shall provide the services as set forth in Exhibit A-1, attached hereto and incorporated herein by this reference, in the following general consulting service categories:
Designated Contract Planner/Project Manager
Service Order.
\ll work performed under the Master Consultant Agreement shall be authorized b | specific Service Order (see Exhibit A-2 for form of Service Order). Eac Authorized Service Order shall detail the following:
• A description of the project for which Consultant shall perform the services;
• the nature of the specific services to be performed by the Consultant; • the format and schedule for deliverables;
• the schedule of performance; and
• the schedule for compensation.
Any unauthorized services performed by Consultant shall be at no cost to the City.
3. Commencement of Work.
Consultant shall begin work under the Service Order only after receipt of an Authorized Services Order bearing the approval signature of the City Manager or City Manager's designee approving the Service Order form. Each Authorized Service Order issued under this Agreement by the City shall be incorporated into this Master Consultant Agreement.
4. Representatives.
Consultant shall coordinate with the following City representative on the performance of each Authorized Service Order:
City Representative: Consultant's Representative:
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Exhibit A (Rev. 7-22-19)
Amy Chen Aaron Aknin
Director Principal
Community & Economic Development Good City Company
1960 Tate Street 1351 Laurel Street
East Palo Alto, CA 94303 San Carlos, CA 94070
(650) 853-3193 (415) 845-8344
[email protected] [email protected]
All routine administrative communications between the parties will be between the above named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Consultant Representative and City's Representative.
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Exhibit A (Rev. 7-22-19)
EXHIBIT A - 1
SCOPE OF WORK
Contract Planning
At the request of the City, and as directed by the City, Consultant shall provide senior or principal-level project management assistance on major development projects and activities in the Ravenswood Business District Specific Plan Area.
Services shall include, but are not limited to, the following activities:
1. Application intake and reporting;
2. Consultation with other City departments as needed;
3. Preliminary project and application review;
4. Managing sub-consultants (including scope and cost estimates) for Developer Reimbursement Agreements;
5. Processing invoices and collecting deposits incurred against Developer Reimbursement Agreements;
6. Formal application review and evaluation for completeness;
7. Analysis of zoning, General Plan, Specific Plans, and Area Plans;
8. Site visits and applicant meetings;
9. Preparation of staff reports for review by advisory bodies, Planning Commission, and City Council as required;
10. Engagement and management of technical consultants for specific tasks or reports;
11. Interfacing with sub-consultants hired through Master Consulting processing for project-specific work;
12. Interfacing with Raimi & Associates and other consultants regarding RBD Specific Plan updates (as relevant to project);
13. Presentations and/or assistance to City staff with project presentations to the Planning Commission, City Council, or other City hearing bodies as needed;
14. Conduct of scoping, outreach, or public information meetings with City staff; and,
15. Perform related duties and responsibilities as required.
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Exhibit A (Rev. 7-22-19)
EXHIBIT A-2
SERVICES ORDER FORM
The Consultant and the City shall implement this Approved Service Order (also referred to as "ASO" in accordance with the Master Consultant Agreement dated - The Consultant shall provide the services and deliverables set forth in this ASO to the satisfaction of the City.
ASO No.:
Consultant's Name:
Project Name:
Project Location:
City Project Manager:
Department:
Phone & Email:
Consultant Project Manager:
Address:
Phone & Email:
Available Funds in Master Consultant
Agreement:
Total Compensation for this Approved
Service Order:
New Fund Balance in Master
Consultant Agreement:
Task No.:
Services:
Deliverables:
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Exhibit A (Rev. 7-22-19)
[Completion Time:
Task No.:
Services:
Deliverables:
Completion Time:
Task No.:
Services:
Deliverables:
Completion Time:
Department Approval: | Date:
Consultant Approval: Date:
City Manager Approval: Date:
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Exhibit A (Rev. 7-22-19)
EXHIBIT B
COMPENSATION
1. Compensation.
City agrees to pay Consultant, at the rate(s) and for expenses specified below, for those services set forth in Exhibit A of this Agreement. The maximum total compensation the City shall pay the Consultant for all Approved Service Orders issued under this Master Consultant Agreement shall not exceed Five Hundred Thousand dollars ($500,000), as set forth in Resolution No. 124-2020.
Consultant agrees and acknowledges that said amount is a contract limit and that the City shall pay Consultant for services rendered on an as-needed basis pursuant to the Scope of Work set forth in Exhibit A, and the individual Approved Service Orders issued in accordance with the terms and conditions of this Master Consultant Agreement.
2. Appropriate Billable Hourly Rates for Services and Additional Services.
Consultant shall perform the services based on the rate schedule set forth in Exhibit B-1.
The Billable Hourly Rates identify all the job classifications which will perform billable services pursuant to this Agreement and the fee for each job classification.
Performance of work by personnel in job classifications not listed on the fee schedule will result in nonpayment for such services.
3. Consultant's Reimbursable Expenses.
Reimbursable Expenses shall be limited to actual reasonable expenditures of Consultant for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Consultant.
A. receipt of Consultants shallie, aded painerast be madeli Master Consultant Agreement Page 1 of 5
Exhibit B (Rev. _
to the satisfaction of City.
All invoices submitted by Consultant shall contain the following information:
Description of services billed under this invoice
Date of Invoice Issuance
Sequential Invoice Number
4. City's Purchase Order Number (if issued)
Social Security Number or Taxpayer Identification Number
6. Amount of this Invoice (Itemize all Reimbursable Expenses") Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses.
Billings that do not conform to the format outlined above shall be returned to Consultant for correction. City shall not be responsible for delays in payment to Consultant resulting from Consultant's failure to comply with the invoice format described above.
5. Accounting Records of Consultant.
Consultant shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Consultant's direct salary costs for all Services and Additional Services performed under this Agreement and records of Consultant's Reimbursable Expenses, in accordance with generally accepted accounting practices.
Consultant shall keep such records available for audit, inspection and copying by representatives of the City's Finance Department or other government agencies during regular business hours upon twenty four (24) hours notice.
The obligations of Consultant under this section shall survive this Agreement.
6. Taxes.
Consultant shall pay, when and as due, any and all taxes incurred as a result of Consultant's compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request. Consultant hereby agrees to indemnify and defend City for any claims, losses, costs, fees, liabilities, damages or injuries suffered by City arising out of Consultant's breach of this section pursuant to the Indemnification provisions of this Agreement.
7. Taxpayer Identification Number.
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Exhibit B (Rev._
Consultant shall provide City with an IRS Form W-9, Request for Taxpayer Identification Number and Certification, containing an original signature and any other State or local tax identification number requested by City.
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Exhibit B (Rev._
EXHIBIT B-1
RATE SCHEDULE
• Director/Principal: $225/hour
• Principal Planner/Project Manager: $195/hour
• Senior Planner/Project Manager: $160/hour
• Associate Planner/Project Manager: $125/hour
• Assistant Planner/Project Manager: $100/hour
• Planning Technician $80/hour
• Administrative Assistant $60/hour
* Subconsultant Contracts Direct Billing + 10% oversight fee (if contracted directly through Good City).
Pricing shall remain the same through the first year of the contract. Contractor shall negotiate any proposed price escalation for each subsequent year after the initial year by submitting in writing any proposed increase to City for consideration at least sixty (60) days prior to the first of the year. Escalation percentage accepted by the City will remain the same for the entirety of the subsequent year.
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Exhibit B (Rev._
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Exhibit B (Rev.)
EXHIBIT C
INSURANCE REQUIREMENTS
I. TYPES OF INSURANCE
A. Commercial General Liability Insurance: Consultant's General Liability insurance shall include contractual liability coverage. Consultant shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Property Damage Liability Insurance (Commercial General Liability Insurance) on an occurrence basis as shall protect it while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as claims for property damage which may arise from the Consultant's operations under this Agreement, whether such operations be by Consultant or by any sub-Consultant or by anyone directly or indirectly employed by either of them. The amounts of such insurance shall be not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000), in aggregate or Three Million Dollars ($3,000,000) combined single limit bodily injury and property damage for each occurrence. Consultant shall provide the City with certificates of insurance and copies of additional insured and primary coverage endorsements evidencing the insurance coverage required by this Agreement.
B. Automobile Liability Insurance: Consultant shall take out and maintain during the life of this Agreement such Automobile Liability Insurance in an amount of not less than One Million Dollars ($1,000,000) for each occurrence combined single limit or not less than One Million Dollars ($1,000,000) for any one (1) person, and One Million Dollars ($1,000,000) for any one (1) accident, and Three Hundred Thousand Dollars, ($300,000) property damage. Consultant shall provide the City with certificates of insurance and copies of additional insured and primary coverage endorsements evidencing the insurance coverage required by this Agreement.
C. Worker's Compensation and Employer's Liability Insurance: Consultant shall have in effect during the entire life of this Agreement Worker's Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, Consultant makes the following certification, required by Section 18161 of the California Labor Code: "I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of the Code, and I will comply with such provisions before commencing the performance of the work of this Agreement".
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Exhibit C (Rev.
D. Professional Liability Insurance: Consultant shall take out and maintain during the life of this Agreement a policy of professional liability insurance, protecting it against claims arising out of the acts, errors, or omissions of Consultant pursuant to this Agreement, in the amount of not less than One Million Dollars ($1,000,000) per claim. Said professional liability insurance is to be kept in force for not less than one (1) year after completion of services described herein.
Il. ADDITIONAL REQUIREMENTS
A. Broader Insurance Coverage: In the event that Consultant maintains broader coverage and/or higher limits than the City's minimum requirements, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Consultant. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. 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 the City before the City's own insurance shall be called upon to protect it as a named insured.
B. Additional Insured Status: The City of East Palo Alto, its subsidiary agencies, directors, officers, employees, agents, independent consultants and volunteers shall be named as additional insureds on any such policies of comprehensive general and automobile liability insurance.
C. Primary and Non-Contributory Coverage: Except for professional liability and worker's compensation insurance, the policies shall also contain a provision that the insurance afforded to the City, its subsidiary agencies, and their directors, officers, employees, agents, independent consultants and volunteers based on additional insured status shall be primary and non- contributory insurance to the full limits of liability of the policy, and that if the City, its subsidiary agencies and their directors, officers, employees, agents, independent consultants and volunteers have other insurance against a loss covered by a policy, such other insurance shall be excess insurance only.
D. Verification of Coverage: Consultant shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause). All certificates and endorsements are to be received and approved by the City Attorney's Office at least five days before Consultant commences work to be performed pursuant to the agreement.
E. Notice of Cancellation: Consultant shall provide thirty (30) days' notice, in writing, to the City, at 2415 University Avenue, East Palo Alto, CA 94303, of any pending change or cancellation of the policy.
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Exhibit C (Rev._
F. Deductibles or Self-Insured Retentions: Prior to the execution of this Agreement, any deductibles or self-insured retentions must be declared to and approved by City.
G. Breach: In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, City, at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.
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Exhibit C (Rev._
EXHIBIT D
CITY OF EAST PALO ALTO'S POLICY AGAINST
DISCRIMINATION, HARASSMENT AND RETALIATION
EFFECTIVE DATE: 12/21/2004
REVISED DATE: 1/12/07
ADOPTED BY CITY COUNCIL: 12/21/2004
I. PURPOSES
The purposes of this policy are to emphasize the City's commitment to keeping its workplace free of harassment, discrimination and retaliation, to define and provide examples of the conduct that is prohibited, to summarize the respective responsibilities for preventing, reporting, investigating, and responding to violations and to give clear warning of the serious consequences that violators will face.
A copy of this policy shall be provided to all persons who are subject to it, and shall be posted on City bulletin boards in all City facilities.
Il. POLICY
All of the following are prohibited by this Policy:
• Discrimination or harassment in any aspect of City employment based on any legally protected characteristic or status, including sex, gender, sexual orientation, race, color, national origin, language, ancestry, religion, age, marital status, domestic partner, physical disability, mental disability, or medical condition.
• Retaliation for opposing, filing a complaint about, or participating in an investigation of, any such harassment or discrimination. • Aiding, abetting, inciting, compelling, or coercing or any such discrimination, harassment or retaliation, or attempting to do so.
The City will take all reasonable steps necessary to prevent such misconduct from occurring, and to remedy and punish any occurrence. Any City employee, Council member, member of any advisory body, including any Commissioner, Committee member, or Board member found having engaged in any such misconduct will be subject to disciplinary action up to and including termination or censure or removal and will be deemed to have acted outside the course and scope of his or her employment.
This policy applies to all City employees, volunteers, interns, vendors, and consultants as well as to all applicants for City positions.
Master Consultant Agreement Page 1 of 4
Exhibit D
The policy shall not be interpreted or applied in any manner that would be inconsistent with any applicable State or Federal law or regulation, or increase the legal liability of the City.
III. DESCRIPTION AND EXAMPLES OF PROHIBITED HARASSMENT
Harassment on the basis of sex is unlawful, and is prohibited by this policy. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:
• An individual's submission to such conduct is made explicitly or implicitly, a term or condition of that individual's employment; or,
• An individual's submission to or rejection of such conducts is used as the basis for an employment decision affecting that individual; or, • The conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, abusive, or offensive work environment.
Sexual harassment need not be motivated by sexual desire or gratification, and may include nonsexual conduct motivated by the violator's hostility towards the victim's gender, or towards the victim's nonconformity to gender stereotypes. Sexual harassment includes not only conduct motivated by gender, but also by pregnancy, childbirth, or a related condition. A harasser may be either male or female, and the victim may either be the same sex or the opposite sex. Even a person who is not the intended target of harassment may be harassed by it if he or she witnesses it.
Sexual harassment may be verbal, visual, or physical. For example:
• Verbal harassment may consist of derogatory, threatening, or intimidating comments, epithets, slurs or jokes; references to gender, physical appearance, attire, sexual prowess, marital status, or pregnancy; or sexual advances, propositions, or demands.
• Visual harassment may consist of displaying or circulating derogatory or offensive posters, cartoons, drawings, photographs, pin-ups, computer images, or electronic media transmissions.
• Physical harassment may consist of assault, battery, or unwelcome, unnecessary and offensive touching (kissing, hugging, patting, rubbing, pinching, brushing against), stating, leering, gesturing, whistling or making noises, impeding or blocking movement, or physical interfering with normal work or movement.
Consultant and Professional Services Agreement Page 2 of 4 Exhibit D
In addition to prohibiting harassment based on sex or gender, this policy also prohibits harassment based on sexual orientation, or upon any other legal protected characteristic or status, such as race, religion, creed, color, national origin, language, ancestry, physical disability, mental disability, medical condition, marital status, domestic partner, or age.
Harassment on the basis of such factors is subject to the principles applicable to sexual harassment, as stated above.
IV. REPORTING DISCRIMINATION, HARASSMENT OR RETALIATION Any City employee, volunteer, intern, vendor, consultant, or applicant who becomes aware of any discrimination, harassment or retaliation prohibited by this policy shall report it immediately to their immediate supervisor, or higher ranking supervisor, or the Assistant City Manager. Under no circumstances shall such a report be required or expected to be made to the person who engaged in the misconduct that is subject to this report.
The responsibility to report conduct prohibited by this policy arises even if the conduct is directed toward someone else and even if the person toward whom it is directed does not want it reported.
Reports may be made orally or in writing, free of requirements as to form.
Because reports of conduct prohibited by this policy will be treated as serious charges, the making of a deliberately false report, or a report made with reckless disregard for its truth or falsity, may subject the maker to disciplinary action.
V. INVESTIGATION AND RESOLUTION
The City of East Palo Alto will investigate all reported violations of this policy. All employees, volunteers, interns, vendors and consultants, members of the City Council, or members of a City advisory body shall cooperate with any such investigation.
Any supervisor, manager department head, member of the City Council, or member of a City advisory body who receives a report of, or who becomes aware of, conduct prohibited by this policy shall promptly report it to the Personnel Officer. Upon receiving the report, the Personnel Officer shall direct any report that accuses a City Council member or appointee to the City Council for investigation and resolution. The City Council shall delegate the responsibility to conduct a prompt, full, and fair investigation to the qualified private investigator.
Upon receiving a report regarding a non-City Council member or appointee, the Personnel Officer shall conduct a prompt, full, and fair investigation, or delegate Consultant and Professional Services Agreement Page 3 of 4 Exhibit D
that responsibility to a qualified City employee or private investigator. The person performing the investigation shall:
• Interview the complainant, the accused, and any other person the investigator believe to have knowledge relevant to the charges; • Gather and review any documentary, electronic, or physical evidence relevant to the charges;
• Consult with legal counsel as needed;
• Determine whether the charges can or cannot be substantiated; and • Develop recommendations for appropriate remedial and/or disciplinary action, if any.
VI. OUTSIDE ADMINISTRATIVE AGENCIES
In addition to the remedies described in this Policy, the U.S. Equal Employment Commission and the California Department of Fair Employment and Housing provide administrative complaint and investigation processes as to harassment, discrimination or retaliation on the basis of a protected status. The toll free telephone number for such office is listed below:
California Department of Fair Employment and Housing 1.800.233.3212 U.S. Equal Employment Opportunity Commission 1.800.669.4000 Consultant and Professional Services Agreement Page 4 of 4 Exhibit D