02 - Attachment C1 - Sample Consultant Agreement.pdf

CONSULTING – PROFESSIONAL SERVICES AGREEMENT

THIS AGREEMENT, dated this DDxxh day of MONTH, 202X, is made and entered into by and between the Boulder Valley School District RE-2, (“District”), and LEGAL NAME, (“Contractor”), for the performance of professional services to: Boulder Valley School District, per the Statement of Work attached hereto as Exhibit A (hereafter the “Services”).

W I T N E S S E T H In consideration of the mutual promises and covenants herein set forth, the District and the Contractor (“Parties”) agree as follows:

1. Services. The Contractor shall perform the Services as outlined in this Agreement, in Request for Proposal RFP 23-xx NAME Exhibit A

, and in the Contractor’s Statement of Work, attached and incorporated herein as Exhibit B. In the event of any inconsistency in the terms of this Agreement and the incorporated document(s), the priority of interpretation and the order of precedence shall be: first, this Agreement, RFP 23-xx NAME, and next, Contractor response to RFP 23-xx NAME Exhibit B.

2. Contract Price. The Contractor shall perform the Services pursuant to the fee schedule set forth in Exhibit A for the contract price of not to exceed SPELL AMOUNT ($xxxxx). An addendum or change order with a scope of service for each additional District requirement will be sent to the District to obtain appropriate approvals and incorporated into the agreement.

The District will pay the Contractor the contracted price or rate for services performed and accepted and/or goods delivered and accepted pursuant to the terms of this Agreement. Payments pursuant to this agreement shall be made as earned, in whole or in part, from available funds encumbered for the purchase of the described services and/or goods.

2.1. Unless otherwise expressly stated, reimbursables shall be included in the total contract price. Reimbursables include, but are not limited to: all office supplies, cell phones, parking fees, meals, lodging, rents, mileage, travel expenses, supplies, mailing charges, communications, reporting, analysis, delivery charges and all other items consumed/utilized/required by Contractor’s staff, including subcontractors and suppliers.

2.2. All labor, licenses, materials, supplies, equipment, and all other items necessary to complete the Services required to be furnished by the Contractor (the “Materials”) shall be part of and not in addition to the contract price. The Contractor shall be responsible and liable for any damage or destruction to any Materials resulting from any cause other than the deliberate or negligent acts of the District for which it could be held liable under the Colorado Governmental Immunity Act.

2.3. The District reserves the right to modify the payment schedule in the event the Services are not proceeding to completion in the manner proposed such that the payments coincide with the percentage of total Services performed during any payment period.

3. Fund Availability. Financial obligations of the District payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. In the event funds are not appropriated, budgeted or otherwise made available, the Agreement shall be terminated on the last day of the period for which funds were appropriated or monies made available for such purposes. This provision shall not be construed to limit any other right of termination available to the District.

Pursuant to Section 22-44-115, C.R.S., any obligation of a contract which requires expenditures contrary to subsection (1) of Section 22-44-115, C.R.S., shall be null and void and no school district monies shall be paid thereon.

4. Term. The Contractor shall commence the Services on MONTH DD, YYYY, or the date this agreement is fully executed, whichever is later, and complete the Services by MONTH DD, YYYY.

The Contractor understands and agrees that the District shall not be liable for payment of work or services nor for costs or expenses incurred by the Contractor prior to the proper execution and District approval of this Agreement.

5. Termination.

5.1. This Agreement may be terminated by the District upon not less than five days’ written notice should the Contractor fail substantially to perform in accordance with the terms of this Agreement through no fault of the District and may be terminated by the District with ten days’ notice without cause. The Contractor shall not terminate this Agreement, without the written consent of the District, other than for nonpayment as provided below. In the event of termination of this Agreement not due to the fault of the Contractor, the Contractor shall be paid for Services performed to the date of termination, including reimbursable expenses then due. In the event of termination, the Contractor shall deliver to the District all reports, data, and similar Materials relating to the Services prepared by or in the possession of the Contractor.

5.2. If the Services are suspended or abandoned in whole or in part for more than two months, the Contractor shall be compensated for all Services performed prior to receipt of written notice from the District of such suspension or abandonment, together with all reimbursable expenses then due. At its sole discretion, the District may terminate this Agreement by giving written notice to the Contractor if the Services are abandoned or suspended for more than two months.

5.3. If the District fails to make payment when due, the Contractor may, upon ten days’ written notice to the District, suspend performance of Services. Unless payment is received by the Contractor within ten days of the date of the notice, the suspension shall take effect without further notice.

6. Notice. Any notice required under this Agreement shall be in writing and shall be effective upon personal delivery or three days after mailing when deposited in the United States first-class mail, postage prepaid, with charges prepaid to the other part at the following addresses, or upon confirmed transmission by email. Either party may, from time to time, designate in writing a new or substitute representative or address:

For the Contractor:

Company Name

For the District:

Boulder Valley School District

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Address Address City, State, Zip Attn:

Email: xxxxx

Procurement Department 6500 Arapahoe Road Boulder, CO 80303 Attn: Paul Squillace

(720) 561-5394 Email: Paul.Squillace@bvsd.org

7. Independent Contractor. All Services performed by the Contractor shall be as an independent contractor and not as an employee of the District. Neither party shall be construed, in any way, as a partner or joint venturer with the other party.

8. Standards. All services shall be performed by the Contractor in a diligent, safe, professional, impartial and workmanlike manner and the Contractor shall use its best skill and judgment pursuant to the highest standards of the profession for such Services in furthering the District’s best interests. In the event of a breach by the Contractor of the terms of this Agreement, the District may terminate this Agreement, and may pursue any remedies available in law or in equity.

9. Confidentiality. Contractor agrees that any data accessed or given by the District in order to perform its obligations under the Contract (i.e. Student personally identifiable information, demographic data, financial data, etc., collectively referred to herein as “Confidential Data”), whether provided through electronic transfer or on physical drives, remains the sole property of the District.

Contractor shall maintain the Confidential Data in the strictest confidence consistent with, and shall comply with, applicable law, including the Colorado Student Transparency and Security Act (in particular § 22-16-108 through 110, C.R.S.), Children’s Online Privacy Protection Rule, and the Federal Education Rights and Privacy Act. Any discovery of Confidential Data by Contractor in the ordinary course of business shall remain confidential and shall similarly be maintained in a manner consistent with all Colorado and federal laws. Confidential Data shall not be passed, transported, or otherwise moved outside the District networks, Contractor’s secure data transmission site, or off District property without written approval from the District’s Chief Technology Officer.

Confidential Data stored on District equipment shall not be duplicated or transferred to a different media without the District’s express written consent. Changes to Contractor’s practices, privacy policy, or end user license agreement that conflict with existing Colorado or federal laws and material breaches that involve the misuse or unauthorized release of Confidential Data may result in immediate termination of the Contract. Contractor agrees to provide immediate notice to District of any breach/loss/release of Confidential Data. If the Parties also sign a Data Protection Addendum (DPA), then that document shall control over any conflict with this language. Contractor agrees that disclosure of confidential information may be cause for legal action. Defense of any such action shall be the sole responsibility of the Contractor. In the event Contractor is found to have breached this provision, Contractor shall be responsible for the School District’s associated legal fees.

10. Premises Access Certifications. The Contractor shall not knowingly employ on Boulder Valley School District premises, for the duration of the term of this Agreement, including any renewal period, any persons convicted of any felony or misdemeanor crime of unlawful behavior involving children, unlawful sexual conduct, child abuse, domestic violence or a crime of violence.

11. Contractor’s Representations.

11.1. The Contractor shall perform all of the Services in a professional manner.

11.2. The Contractor understands the nature, location, and scope of the Services, the character of the equipment and facilities needed preliminary to and during the performance of the Services, and the general and local conditions and all other matters that can in any way affect the Services and is not relying on any representations or promises by the District except as set forth in this Agreement.

11.3. The Contractor shall cooperate with other contractors, if any, and employees of the District in performing the Services.

11.4. The Contractor agrees to notify the District of any additional information the Contractor may need, or for any clarification of data.

11.5. The Contractor shall provide the level of service (number of people, their experience and estimated hours) required by and committed for the services throughout the term of the Agreement and any extensions. The Contractor shall notify the District, in writing, of its desire to replace personnel dedicated to this Agreement. The District reserves the right to approve replacement of personnel. Upon request by the District, the Contractor shall provide documented evidence and references that the replacement personnel possess the necessary training, experience and skills to competently perform the obligations of this Agreement. The Contractor shall disclose to the District any potential conflicts of interest for the proposed replacement personnel.

11.6. The Contractor shall assume all responsibility for performance of all Services in this Agreement, whether or not the Contractor uses subcontractors. Any consequences resulting from non-performance under the terms of this Agreement are the sole responsibility and liability of the Contractor. The Contractor shall be the sole point of contact with the District with regard to all matters covered by this Agreement. The District shall not initiate or maintain contact with any subcontractor unless such contact becomes necessary to mitigate the District’s damage in the event the Contractor is in default or breach of any term or obligation of this Agreement.

11.7. The Contractor shall not initiate any press and/or media contact nor respond to press/media requests regarding this Agreement and/or any related matters concerning the District without the prior written approval of the District.

12. Contractor’s Warranties and Guarantee.

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12.1. The Contractor warrants that the Services shall be conducted in a good and workmanlike manner and shall be suitable and fit for the purposes for which they are intended.

12.2. The Contractor warrants and represents that it has full authority under applicable law to execute and deliver this Agreement and to perform all of the obligations under this Agreement.

12.3. The Contractor represents that it shall perform the Services in a safe and diligent manner.

12.4. The Contractor warrants that any materials utilized shall be adequate and appropriate for the use contemplated by the required Services.

12.5. As a condition of this Agreement, the Contractor shall maintain in effect all times during the term of this Agreement, a valid and appropriate license and/or registration, if and as required by law. The Contractor shall ensure that each of its employees, subcontractors, or similar personnel who are subject to licensing and/or registration maintain in effect at all times while performing work on the Services, a valid and appropriate license and/or registration, if and as required by law.

12.6. The Contractor agrees to comply with all requirements of any facility use policies, regulations and guidelines as provided by the District.

12.7. The Contractor assures that all individuals providing services pursuant to this Agreement shall complete all pre-employment screening requirements in accordance with the District’s policies and practices, including criminal background checks and fingerprinting prior to accessing our buildings or having any contact with children.

13. Ownership of Data/Use of Work Products. Any reports, studies, data, other documents or materials prepared by the Contractor in the performance of its obligations and Services under this Agreement shall be the exclusive property of the District and all such materials shall be delivered to the District by the Contractor upon completion, termination, or cancellation of this Agreement. The Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of the Contractor’s obligations and Services under this Agreement without the prior written consent of the District. The ownership rights described shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. The Contractor’s work product shall be delivered to the District in the time frame contemplated by this Agreement, shall become the property of the District, and may be used by the District for any purpose connected with the Services or other District applications. This agreement does not convey any exclusive rights or interest in the Contractor or associated intellectual property to the District.

14. Certification Statement Regarding Employment of Workers without Authorization. Prohibition Against Use of Workers without Authorization. The Contractor certifies that it shall comply with the provisions of C.R.S. § 8-17.5-101 et seq. The Contractor shall not knowingly employ or contract with a worker without authorization to perform work under this Agreement; or enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with a worker without authorization to perform work under this Agreement.

The Contractor represents, warrants, and agrees that:

(1) it has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the federal E-Verify or the Colorado Department of Labor and Employment Program;

(2) it is prohibited from using either the E-Verify Program or the Department Program procedures to undertake preemployment screening of job applicants while the public contract for services is being performed;

(3) if it obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with a worker without authorization, the Contractor shall be required to:

(a) Notify the subcontractor and the School District within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with a worker without authorization; and

(b) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to C.R.S. §

8-17.5-102(2)(b)(III)(A) the subcontractor does not stop employing or contracting with the worker without authorization;

except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with a worker without authorization;

(4) it is required to comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Department is undertaking pursuant to C.R.S. § 18-17.5-102(5).

15. Insurance of Contractor. The Contractor shall procure and maintain, at their own expense, until the contract performance is accepted by the District, insurance as hereinafter specified. All such insurance shall be subject to the approval of the District for adequacy of protection, and shall include a provision preventing cancellation without ten days prior notice to the District in writing. All such insurance policies shall be delivered to the District upon request or within five (5) calendar days after the Contractor signs this Agreement. The insurance required is as follows:

15.1. Liability. Contractor's General Liability insurance issued to the Contractor and protecting them from all claims for destruction of or damage to property, arising out of or in connection with any operations under this Agreement, whether such operations be by the Contractor or by a subcontractor under them or anyone directly or indirectly employed by the Contractor or by any subcontractor. The District shall be named as an additional insured for the duration of the Agreement, including any extensions.

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15.1.1. General Liability insurance issued to "Boulder Valley School District RE-2 in Boulder and Gilpin Counties and State of Colorado, its directors and members of its Board of Education, its officers, its agents, and its employees acting in the scope and course of their employment", and protecting them from all claims for personal injury, including death, and all claims for destruction of or damage to property, arising out of or in connection with any operations under this Agreement, whether such operations be by the Contractor or by a subcontractor under them or by anyone directly or indirectly employed by the Contractor or by a subcontractor under them.

15.1.2. All such insurance shall be written with Comprehensive bodily injury, property damage, personal injury, and broad form property damage liability insurance, including owned, non-owned, leased or hired automobiles, including contractual liability, products liability, completed operations liability, and owners and Contractors protective liability, if any (to be maintained for a minimum period of three years after final completion of the work). Such coverage shall provide a limit of $1,000,000 combined single limit bodily injury and property damage for each occurrence subject to an aggregate limit of $2,000,000, a limit of liability of not less than $1,000,000 per occurrence for all damages arising out of injury to or destruction of property during the policy period. A policy that provides $1,000,000 of coverage via a primary policy plus an umbrella or following form excess policy in the amount of $1,000,000 will be satisfactory.

15.1.3. Automobile liability insurance issued to the Contractor protecting the Contractor and the District from all claims for personal injury, including death, and all claims for destruction of or damage to property, arising out of or in connection with any operations under this Agreement, whether such operations be by the Contractor or by a subcontractor under them or by anyone directly or indirectly employed by the Contractor or a subcontractor under them with a limit of liability of not less than $1,000,000 per occurrence.

15.2. Worker’s Compensation. The Contractor shall maintain at their own expense, until completion of this Agreement and acceptance thereof by the District, Workers' Compensation Insurance, including occupational disease provisions, covering the obligations of the Contractor in accordance with the provisions of the laws of the State of Colorado. The Contractor shall furnish the District with a certificate giving evidence that such Contractor is covered by the Workers' Compensation Insurance herein required, each certificate specifically stating that such insurance includes occupational disease provisions.

15.3. Additional Provisions. Unless otherwise modified by the District in writing in advance, the insurance of the Contractor described in this Section 16 shall be maintained with a carrier having an AM BEST “A” Rating and the terms of coverage shall be as evidenced by certificates to be furnished to the District. Such certificates shall provide that thirty days’ written notice will be given to the District should the policies be non-renewed, have a reduction in coverage or policy limits as described above, exhaustion of policy limits, or cancellation for any reason.

The certificate of insurance will indicate any limitation of coverage in the Contractor’s insurance policy such as claims made, defense within limits and aggregates, etc. Acceptance of a certificate with less than the required amounts and coverage shall not be deemed a waiver of those requirements.

The Contractor shall require all of its subcontractors to maintain Workers’ Compensation Insurance, Comprehensive General Liability Insurance, and Comprehensive Automobile Liability Insurance with the same limits and conditions as insurance maintained by the Contractor herein.

15.4. Waiver. Notwithstanding the preceding, the District may waive or modify the requirements of Section 15 “Insurance of Contractor. Such waiver or modification shall not be effective unless made in writing executed by an appropriate officer or authorized employee of the District.

16. Indemnity. To the extent allowed by law, the Contractor agrees to indemnify and hold the District harmless from and against any and all claims and damages, including attorney’s fees, brought by a third party against the District or its board members, elected officials and employees arising from the negligence or misconduct of the Contractor.

17. Governing Law/Forum Selection. This Agreement is made in and will be governed by the laws of the state of Colorado. Any legal action by either party to enforce and alleged breach or default shall be brought in the Boulder County, Colorado District Court.

18. Government Regulations. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, C.R.S. §24- 10-101 et seq., other applicable law, as applicable now or hereafter amended. The Contractor shall comply with all laws, statutes, ordinances, standards, rules, and regulations of all federal, state, municipal, and special district governmental authorities that are or may become applicable to any of the Services or Materials covered under this Agreement. Compliance shall also include, without limitation, applicable District policies and public meetings and records requirements.

19. Limitation of Actions. Unless a longer period is provided by law, any legal action brought by the District against the Contractor to recover damages shall be brought within two years after the claim for relief arises and is discovered by the District; provided, however, if written notice of a potential claim is given to the Contractor within such two-year period, then an action may be brought within four years after the claim for relief arises and is discovered by the District. “Discovered” as used herein means detection and knowledge by the District of the defect in the improvement or Services which ultimately causes the injury or damage (when such defect is of a substantial or significant nature) and the cause of such defect.

20. Claims. The Contractor shall pay, satisfy, and discharge all taxes, claims, charges, or other impositions of any nature or kind imposed on the Contractor out of or in connection with the Services or materials performed or provided hereunder and shall hold harmless and indemnify the District.

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21. Infringement Claims. The Contractor shall defend all suits or claims for infringement of any alleged patent rights, copyright, or trade secrets arising under this Agreement and shall indemnify the District from loss and shall pay any resulting judgments or fees, including, but not limited to, royalties, license fees, and attorneys’ fees.

22. Non-assignment. The Contractor shall not assign or subcontract any of its rights or obligations hereunder without the express written consent of the District.

23. Severability. To the extent that this Agreement may be executed and performance of the obligations of the parties may be accomplished within the intent of the Agreement, the terms of this Agreement are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof.

24. Waiver. The waiver of any breach of a term, provision, or requirement of this Agreement shall not be construed or deemed as waiver of any subsequent breach of such term, provision, or requirement, or of any other term, provision, or requirement.

25. Survival of Certain Contract Terms. The parties understand and agree that if any term of this Agreement is found to be unenforceable, all other terms and conditions of this Agreement and the exhibits and/or attachments which may require continued performance, compliance, or effect beyond the termination date of the Agreement- shall survive such and shall remain enforceable.

26. Entire Agreement. This Agreement, together with the documents incorporated by reference, constitutes the entire Agreement of the parties, including all terms, conditions, provisions. This Agreement may only be modified or amended by further agreement executed by the parties hereto.

IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written and shall extend to and bind the parties, their successors, assigns, and personal representatives.

CONTRACTOR: DISTRICT:

BOULDER VALLEY SCHOOL DISTRICT RE-2

6500 Arapahoe, PO Box 9011, Boulder, CO 80303 Legal Name and Address

Signature of Authorized Officer

Kathy Gebhardt, President, Board of Education Rob Anderson EdD, Superintendent NAME, TITLE (Principal or Cabinet) Note :Delete Names not needed

Printed Name of Signatory

Laura Shafer, Board Secretary (Delete if not needed)

Kathleen Sullivan, Legal Review

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Exhibit A RFP 23-xx

See the following ___________pages.

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Exhibit B Contractor response to RFP 23-xx

See the following ___________pages.