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HomeMy WebLinkAbout26-127 Kevin C. Duggan for Facilitation of City Manager Performance Evaluation ProcessFacilitation of City Manager Performance Evaluation Process 1 of 5 Services Agreement ($5,000) / April 2024 SERVICES AGREEMENT ($5,000 OR LESS) 1. Parties. This Agreement (“Agreement”) is made by and between the City of Cupertino, a municipal corporation (“City”) and Kevin C. Duggan (“Contractor”), an Individual/Sole Proprietor, and is effective on the last date signed below (“Effective Date”). 2. Services. Contractor agrees to provide the programs, classes or activities (“Services”) set forth in detail in the Scope of Services, attached and incorporated here 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. This Agreement begins on the Effective Date and ends on December 31, 2026 (“Contract Time”), unless terminated earlier as provided herein. Contractor must deliver the Services in accordance with the Schedule of Performance included or attached to Exhibit A. 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. The City’s designated supervisor for this Agreement may extend the Contract Time by up to six (6) months through a written amendment to this Agreement, provided such extension does not include additional contract funds. 4. Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based upon actual costs but that will be capped so as not to exceed $5,000.00 (“Contract Price”), based upon the Scope of Services and the budget and rates included in Exhibit A. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. Upon City approval of written invoices, Contractor will be paid as follows: (check one; cross out others): ☐ A lump sum amount of $________which shall not exceed the Contract Price. ☒ At the rate of $200.00 per hour for a total not to exceed the Contract Price. ☐ Based on the payment schedule included or attached to Exhibit A which shall not exceed the Contract Price. 5. Independent Contractor. 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, workers compensation or other benefits from the City. Contractor must have the skills and qualifications to perform the Services in a competent and professional manner, and must be licensed, registered, and/or certified and have a City Business License. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 6. Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment Facilitation of City Manager Performance Evaluation Process 2 of 5 Services Agreement ($5,000) / April 2024 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. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement is determined by a court of competent jurisdiction, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City, and actual attorney’s fees incurred by City in connection with the above. 7. Assignment. This Agreement is not assignable. Contractor may not substitute another or transfer any rights or obligations under this Agreement without prior written approval of City. Only those persons whose names are included in Exhibit A may perform the Services. 8. Indemnification. To the fullest extent allowed by law and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to litigation and dispute resolution proceedings), of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; Contractor must pay any costs City may incur in enforcing this provision and must accept a tender of defense upon receiving notice from City. 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. 9. Insurance. Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit B, 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. Facilitation of City Manager Performance Evaluation Process 3 of 5 Services Agreement ($5,000) / April 2024 10. Compliance with Laws. Contractor shall comply with all laws and regulations applicable to this Agreement, included without limitation the following laws: 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. 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, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or Contractor's 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. Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of the California Code of Regulations. Contractor agrees to abide by the City’s rules governing gifts to public officials and employees. 11. Abandonment. City may abandon or postpone the Project at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment. 12. Termination. City may terminate this Agreement for cause or without cause at any time. City reserves the right to terminate the Agreement and the remainder of the Services offered by Consultant without notice based upon Contractor’s cancellation of a Service (i.e., program, class or activity) without giving advance notice or obtaining written approval from City. 13. Governing Law. This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact. 14. Entire Agreement. This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement or understanding, either oral or written, between the Parties. Any changes to 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 Facilitation of City Manager Performance Evaluation Process 4 of 5 Services Agreement ($5,000) / April 2024 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. Each provision and clause required by law for this Agreement is deemed to be inserted and will be inferred herein. 15. Services Coordinator. The Parties designate the following persons as Services Coordinators for this Agreement. Contractor’s designation and any substitution are subject to City approval. For City: For Contractor: Kirsten Squarcia Kevin Duggan Deputy City Manager Owner KirstenS@cupertino.org kcduggan@katesbridge.com 16. Contract Interpretation. There are no intended third party beneficiaries of this Agreement. Neither acceptance of the Services nor payment therefor shall constitute a waiver of any contract provision. City’s waiver of a breach shall not constitute waiver of another provision or breach. The headings in this Agreement are for convenience only. The Indemnification and Governing Law sections expressly survive this Agreement. 17. Severability. If a term or provision of the Agreement or its application to a particular situation is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. 18. Notices. All notices, demands, requests, and approvals must be sent to the persons below in writing, and will be considered effective on the date of personal delivery, upon confirmation of delivery by a reputable overnight delivery service, on the fifth calendar day after deposit thereof 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: Kirsten Squarcia Email: KirstenS@cupertino.org To Contractor: Kevin C. Duggan 1309 Brookdale Avenue, Mountain View, CA 94040 Attention: Kevin Duggan Email: kcduggan@katesbridge.com 19. Execution. Contractor’s signatory warrants that he or she is authorized to execute the Agreement and to legally bind 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. SIGNATURES CONTINUE ON THE FOLLOWING PAGE Facilitation of City Manager Performance Evaluation Process 5 of 5 Services Agreement ($5,000) / April 2024 IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the Effective Date written above. CITY OF CUPERTINO A Municipal Corporation KEVIN C. DUGGAN By: By: Name: Name: Title: Date: Title: Date: APPROVED AS TO FORM: By: MICHAEL K. WOO Senior Assistant City Attorney ATTEST: By: LAUREN SAPUDAR City Clerk Date: KC Duggan KC Duggan Consultant 08/04/2026 Kirsten Squarcia Deputy City Manager 08/04/2026 08/04/2026 EXHIBIT A – SCOPE OF SERVICES, SCHEDULE OF PERFORMANCE, COST SUMMARY Facilitation of City Manager Performance Evaluation Process SCOPE OF SERVICES Consultant, Kevin C. Duggan, will facilitate a comprehensive, structured approach for conducting the performance evaluation of the City Manager. The process will establish clear evaluation criteria, gather City Council feedback, facilitate constructive dialogue between the City Council and City Manager, and ensure that the evaluation process serves as a valuable tool for both performance assessment and professional development Key Success Factors for This Process • Clear communication regarding the purpose, process and outcome of the evaluation • Active participation from all councilmembers • Honest & constructive Feedback • Focus on both performance assessment and the City Manager’s growth and development • Mutual agreement and follow through on agreed upon goals and action items • Maintaining confidentiality throughout the process Process • Confirmation of the process & schedule by the Mayor and City Manager • City Manager preparation of self-assessment/background report • Distribution of the self-assessment/background report and evaluation form to City Council • Completion of evaluation form by councilmembers • Individual interviews of councilmembers by consultant • Preparation of draft evaluation by consultant and distribution to City Council • City Council closed session to review/finalize draft evaluation with consultant • City Council closed session to review final evaluation with City Manager (consultant present) • Consultant de-brief with Mayor & City Manager (if desired) Consultant Activities/Work Products • Meeting with Mayor and City Manager to review proposed process and desired outcomes • Development of detailed process and schedule based on Mayor/City Manager input • Modification of proposed process/schedule based on additional input • Development/modification of an assessment tool to be completed by councilmembers • Distribution of the City Manager’s self-assessment/briefing report and assessment tool to the city council • Meeting one-on-one with councilmembers to review their input via the assessment tool and overall thoughts and impressions regarding the city manager’s performance EXHIBIT A – SCOPE OF SERVICES, SCHEDULE OF PERFORMANCE, COST SUMMARY • Compiling the input from councilmember and developing a draft narrative evaluation • Meet in closed session with the City Council to review the draft evaluation • Preparation of the final evaluation and distributing the document to the City Council and City Manager • Participation in a 2nd closed session where the City Council and City Manager will review and discuss the final evaluation document • Participating in a debrief meeting with the Mayor & City Manager (if requested) SCHEDULE OF PERFORMANCE Consultant will perform the services outlined in the Scope of Services according to the Schedule of Performance below: August 2026 Confirmation of Process & Schedule by Mayor and City Manager Completion of City Manager self-assessment/background report Evaluation form and self-assessment distributed to City Council Completion of evaluation form by councilmembers Late August – Early September 2026 Consultant 1 on 1 meetings with councilmembers September 2026 Draft evaluation forwarded to City Council Closed session to review draft evaluation Closed session to review evaluation with City Manager October 2026 Debrief of the process with Mayor and City Manager COST SUMMARY Consultant will perform the services outlined in the Scope of Services and Schedule of Performance at the hourly rate of $200/Hour for a total not to exceed amount of $5,000. Insurance Requirements for Services Agreement ($5,000 or less) 1 Version: May 2025 Contractor shall procure 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. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (“CGL”): Coverage shall be at least as broad as Insurance Services Office (“ISO”) Form CG 00 01, with limits no less than $2,000,000 per occurrence and $2,000,000 general aggregate. The policy shall include a per project or per location general aggregate endorsement as broad as CG 25 03 or CG 24 04. If a per project/location endorsement is not available, the limit of the general aggregate shall be doubled. a. It shall be a requirement under this agreement 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 Contractor's policy shall allow and be endorsed "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO CG 20 01. c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess liability insurance, provided each policy follows form of the underlying policy and 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. The City’s own insurance or self-insurance shall not be called upon. 2. Automobile Liability: Coverage shall be provided using ISO Form Number CA 00 01 (or equivalent) covering any auto (Code 1), or, if Contractor has no owned autos, then hired autos (Code 8) and non- owned autos (Code 9), with limits no less than $1,000,000 each accident for bodily injury and property damage. Not required. Consultant shall be fully remote and not use automobiles to provide the service. In the event Consultant uses an automobile or automobiles in the operation of its business to provide services under this Agreement, the Consultant shall, prior to such use, provide the City with evidence of Business Automobile Liability insurance coverage in the amount required under this Section 2 for owned, non-owned and hired autos (any auto-Symbol 1), or if Consultant does not own autos (hired autos-Symbol 8 and non-owned autos-Symbol 9). Evidence shall be provided with a Certificate of Insurance, along with an additional insured endorsement in favor of the City, primary and non-contributory coverage and endorsement, and waiver of subrogation coverage and endorsement under the policy prior to the use of any automobile. Consultant has provided written confirmation that it does not own any autos. Consultant shall provide coverage for hired autos-Symbol 8 and non-owned autos-Symbol 9. Primary and Non- Contributory coverage and Waiver of Subrogation coverage is waived under the Automobile Liability hired and non-owned only coverage. In the event Consultant uses an owned automobile or automobiles in the operation of its business to provide services under this Agreement, the Consultant shall, prior to such use, provide the City with evidence of Business Automobile Liability EXHIBIT B Insurance Requirements Services Agreement ($5,000 or less) Insurance Requirements for Services Agreement ($5,000 or less) 2 Version: May 2025 insurance coverage in the amount required under this Section 2 for owned, non-owned and hired autos (any auto-Symbol 1). In lieu of Business Automobile Liability, Consultant shall maintain throughout the term of this Agreement and provide the City with evidence (including the policy Declarations Page) of personal automobile insurance coverage in accordance with the laws of the State of California. As available under the policy, evidence shall be provided with the Certificate of Insurance, along with an additional insured endorsement in favor of the City, primary and non-contributory coverage and endorsement, and waiver of subrogation coverage and endorsement. City approval of coverage is required prior to commencement of services. 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 each accident/disease. Not required. Contractor has provided written verification it has no employees. 4. Professional Liability. Insurance which includes coverage for professional acts, errors and omissions, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Claims Made Policies (applicable only to professional liability) If any of the required policies provide coverage on a claims-made basis: 1. The Retroactive Date must be shown and must be before the Effective Date of the Contract. 2. Insurance must be maintained for at least five (5) years after completion of the Services. 3. 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 Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services. If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and higher insurance limits maintained by Contractor. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, and volunteers (“Additional Insureds”) are to be covered as additional insureds on the CGL and automobile liability policies with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts, or equipment furnished. CGL coverage shall be provided in the form of an endorsement at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used. Primary and Non-Contributory Coverage Except Workers’ Compensation coverage, the Contractor’s insurance coverage shall aloe and be endorsed “primary and non-contributory” at least as broad as the most recent edition of ISO CG 20 01 as respects the City, its City council, officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City and additional insureds shall be excess of Contractor’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall provide and be endorsed 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. If a carrier will not provide the required notice of cancellation or policy modification, the Consultant shall provide written notice to the City of a cancellation or policy modification no later than 30 days in advance or 10 days in advance if due to non-payment of premiums. 4 4 Insurance Requirements for Services Agreement ($5,000 or less) 3 Version: May 2025 Waiver of Subrogation Contractor grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Self-Insured Retentions City may approve self-insured retentions and require proof of Contractor’s ability to pay losses and related investigations, claim administration and defense expenses within the retention. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. Acceptability of Insurers Insurance shall be placed with insurers admitted in the State of California and with an AM Best rating of A- VII or higher. Verification of Coverage Contractor shall furnish the City with acceptable original 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 to City prior to commencing the Services. City retains the right to demand verification of compliance at any time during the Contract. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. Adequacy of Coverage Insurance coverage shall not limit Contractor’s duties to indemnify, defend and hold City harmless. City reserves the right to modify these requirements based on the nature of the risk, prior experience, insurer, coverage or other special circumstances. Facilitation of City Manager Performance Evaluation Process Final Audit Report 2026-08-04 Created:2026-08-03 By:Webmaster Admin (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAFjCGnrYLoF3Io5mgXmHugkRs6B8bMQsN "Facilitation of City Manager Performance Evaluation Process" H istory Document created by Webmaster Admin (webmaster@cupertino.org) 2026-08-03 - 8:33:11 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (AraceliA@cupertino.gov) for approval 2026-08-03 - 8:46:14 PM GMT Email viewed by Araceli Alejandre (AraceliA@cupertino.gov) 2026-08-03 - 8:46:24 PM GMT- IP address: 44.214.137.216 Document approved by Araceli Alejandre (AraceliA@cupertino.gov) Approval Date: 2026-08-03 - 9:35:52 PM GMT - Time Source: server- IP address: 71.202.76.156 Document emailed to kcduggan@katesbridge.com for signature 2026-08-03 - 9:35:55 PM GMT Email viewed by kcduggan@katesbridge.com 2026-08-03 - 10:03:25 PM GMT- IP address: 146.75.146.1 Signer kcduggan@katesbridge.com entered name at signing as KC Duggan 2026-08-04 - 4:37:58 PM GMT- IP address: 98.152.109.162 Document e-signed by KC Duggan (kcduggan@katesbridge.com) Signature Date: 2026-08-04 - 4:38:00 PM GMT - Time Source: server- IP address: 98.152.109.162 - Signature Appearance Selected: TYPE Document emailed to Michael Woo (michaelw@cupertino.gov) for signature 2026-08-04 - 4:38:04 PM GMT Email viewed by Michael Woo (michaelw@cupertino.gov) 2026-08-04 - 4:38:12 PM GMT- IP address: 34.230.79.43 Document e-signed by Michael Woo (michaelw@cupertino.gov) Signature Date: 2026-08-04 - 7:01:44 PM GMT - Time Source: server- IP address: 64.165.34.3 - Signature Appearance Selected: IMAGE Document emailed to Kirsten Squarcia (kirstens@cupertino.gov) for signature 2026-08-04 - 7:01:48 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.gov) 2026-08-04 - 7:01:59 PM GMT- IP address: 52.87.45.106 Document e-signed by Kirsten Squarcia (kirstens@cupertino.gov) Signature Date: 2026-08-04 - 8:20:53 PM GMT - Time Source: server- IP address: 64.165.34.3 - Signature Appearance Selected: IMAGE Document emailed to Lauren Sapudar (laurens@cupertino.gov) for signature 2026-08-04 - 8:20:57 PM GMT Email viewed by Lauren Sapudar (laurens@cupertino.gov) 2026-08-04 - 8:21:04 PM GMT- IP address: 3.87.152.221 Document e-signed by Lauren Sapudar (laurens@cupertino.gov) Signature Date: 2026-08-04 - 9:18:59 PM GMT - Time Source: server- IP address: 64.165.34.3 - Signature Appearance Selected: IMAGE Agreement completed. 2026-08-04 - 9:18:59 PM GMT