Sample_Professional_Services_Agreement_-.pdf

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SUSD PROFESSIONAL

SERVICES AGREEMENT

This Professional Services Agreement (“Agreement”), is entered into this day of , 20 , (“Effective Date”), by and between the Stockton Unified School District, herein called "DISTRICT," and , herein called "CONSULTANT." The Stockton Unified School District and Consultant are individually referred to as “Party” and are collectively referred to as the “Parties.”

WHEREAS, the DISTRICT has a need for [enter brief description of services needed] (“Services” or “Work”) with respect to the work described herein;

WHEREAS, CONSULTANT warrants that it is fully licensed and qualified to perform such Services, and is specially trained, experienced, an expert and competent to perform such services; and

WHEREAS, [Government Code section 53060 or Public Contract Code section 20111] authorizes DISTRICT to contract with CONSULTANT for the Services described herein.

NOW, THEREFORE, IT IS AGREED by the parties hereto as follows:

1. Scope of Work. CONSULTANT shall provide the Services to District, as generally described above and as more specifically stated in Attachment “A”. The work will be performed under the direction of [SUSD Administrator Name/Title] for the District. The terms of this Agreement shall be controlling in the event any of the terms hereof shall be in conflict with any of the terms in Exhibit “A”. As a materials inducement to the District entering into this Agreement, Consultant represents and warrants that it possesses the experience, qualifications, personnel, and resources necessary to perform the Services. Consultant further covenants that it shall perform the Services in a competent, timely, and professional manner, consistent with the degree of care, skill, and diligence ordinarily exercised by experienced and qualified professionals performing similar services under similar conditions.

2. Time for Performance of Services. CONSULTANT shall be commence services upon execution of this Agreement or upon written authorization from the District’s authorized representative, as applicable. Consultants shall diligently perform all Services and complete all work in accordance with the schedule, milestones, or deadlines established by the District or otherwise mutually agreed upon by the parties. The parties acknowledge that the duration of the Services may vary depending upon the nature and scope of the Services, changes in the scope of work, the availability of information or approvals, or other circumstances beyond the Consultant's reasonable control. Any schedule, milestone, or deadline established for the Services may be modified only by mutual written agreement of the parties.

3. Term. The term of this Agreement shall be from _______________ through _____________.

4. Payment for Services. Consultant shall furnish to the District the above-described Services for a total cost not to exceed [AMOUNT] DOLLARS and 00/100 ($xx.00) per Attachment “A” hereby attached. Payments will be processed on a monthly basis upon satisfactory completion of the delivery and receipt of an approved invoice within thirty (30) days of receipt of invoice.

5. Records. CONSULTANT shall retain records and supporting documentation related to this Agreement for a minimum of five (5) years after final payment and shall make such records available upon request by the District.

6. Changes in Scope of Service. No change in the character or extent of the Work to be performed by Consultant shall be made except through a signed written amendment to this Agreement. The amendment shall set forth the proposed changes in work, adjustment of

9-time, and adjustment of the sum to be paid by District to Consultant, if any. Any amendment must be approved by the Governing Board of the District.

7. Non-Assignment of Agreement. Inasmuch as this Agreement is intended to secure the specialized services of the Consultant, Consultant may not assign, transfer, delegate or sublet any interest herein without the prior written consent of District and any such assignment, transfer, delegation, or sublease without the District’s prior written consent shall be considered null and void.

8. Insurance. As required by law, Consultant acknowledges their obligation to obtain appropriate insurance coverage in accordance with the requirements listed below for the benefit of the district and Consultant’s employees, if any.

a. Consultant shall carry Workers' Compensation and Employers Liability in accordance with the laws of the State of California.

b. Consultants shall carry Comprehensive General Insurance with limits of not less than One Million Dollars ($1,000,000) and Auto Liability Insurance with limits of not less than One Million Dollars ($1,000,000) combined single limit respectively, bodily injury and property damage liability per occurrence.

c. Professional Liability Insurance, including contractual liability, with limits of $1,000,000, per claim. Such insurance shall be maintained during the term of this Agreement and renewed for a period of at least five (5) years thereafter and/or at rates consistent with the time of execution of this Agreement adjusted for inflation. In the event that Consultant subcontracts any portion of Consultant’s duties, Consultant shall require any such subcontractor to purchase and maintain insurance coverage as provided in this subparagraph. Failure to maintain professional liability insurance is a material breach of this Agreement and grounds for immediate termination.

Each policy of insurance required in Item 9b above shall by separate endorsement name District and its officers, agents and employees as additional named insureds; shall state that, with respect to the operations of Consultant hereunder, such policy is primary and any insurance carried by District is excess and non-contributory with such primary insurance; shall state that not less than thirty (30) days’ written notice shall be given to District prior to cancellation; and, shall waive all rights of subrogation.

9. Indemnification. To the furthest extent permitted by law, Consultant, at Consultant’s own expense, shall defend, indemnify, and hold harmless District, and its Board of Trustees, agents, representatives, officers, contractors, employees, trustees, and volunteers (“District Indemnitees”), from any and all claims, damages, losses, and expenses, arising from, pertaining to, or relating to, the negligence, recklessness, errors, or omissions, or willful misconduct of Consultant or its agents. The District shall have the right to accept or reject any legal representation that Consultant proposes to defend the District Indemnitees.

10. Insurance and Indemnification as Material Provisions. The parties expressly agree that the indemnification and insurance clauses in this Agreement are an integral part of the performance exchanged in this Agreement. The compensation stated in this Agreement includes compensation for the risks transferred to CONSULTANT by the indemnification and insurance clauses.

11. Documents, Information, and Materials Ownership. All documents, information and materials of any and every type including intellectual property, prepared or produced by the CONSULTANT pursuant to this Agreement shall be the property of the DISTRICT. Such documents shall include but not be limited to data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by the CONSULTANT in performing work under this Agreement, whether completed or in process. The CONSULTANT shall assume no responsibility for the unintended use by others of any such documents, information, or materials on project(s) which

10-are not related to the scope of services described under this Agreement.

12. Termination of Agreement Without Cause. DISTRICT may terminate this Agreement at any time by giving the CONSULTANT twenty (20) days written notice of such termination.

Termination shall have no effect upon the rights and obligations of the parties arising out of any transaction occurring prior to the effective date of such termination. Other than payments for services satisfactorily rendered prior to the effective date of said termination, CONSULTANT shall be entitled to no further compensation or payment of any type from the

DISTRICT.

13. Termination of Agreement for Cause. If CONSULTANT fails to perform CONSULTANT'S duties to the satisfaction of the DISTRICT, or if CONSULTANT fails to fulfill in a timely and professional manner CONSULTANT'S obligations under this Agreement or if CONSULTANT violates any of the terms or provisions of this Agreement, or if CONSULTANT, CONSULTANT'S agents or employees fail to exercise good behavior, either during or outside of working hours, that is of such a nature as to bring discredit upon the DISTRICT, then DISTRICT shall have the right to terminate this Agreement effective immediately upon the DISTRICT giving written notice thereof to the CONSULTANT. Termination shall have no effect upon the rights and obligations of the parties arising out of any transaction occurring prior to the effective date of such termination. CONSULTANT shall be paid for all work satisfactorily completed prior to the effective date of such termination. If DISTRICT'S termination of the Agreement for cause is defective for any reason, including but not limited to DISTRICT'S reliance on erroneous facts concerning CONSULTANT'S performance, or any defect in notice thereof, this Agreement shall automatically terminate without cause on the twentieth day following the DISTRICT'S written notice of termination for cause to the CONSULTANT, and the District's maximum liability shall not exceed the amount payable to Consultant as set forth in this Agreement.

14. Compliance with Law/Confidentiality. Consultant shall comply with all Federal, State, and local laws and ordinances applicable to the performance of the work of this Agreement. Any required statutory provision is deemed incorporated by this reference.

15. Covenant Against Contingent Fees. Consultant warrants that he has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and that he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percent, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making this Agreement. For breach or violation of this warranty, District shall have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.

16. Disputes & Claims.

a. Notice of Potential Claim. The CONSULTANT shall not be entitled to the payment of any additional compensation for any act, or failure to act, by the DISTRICT, or for the happening of any event, thing, occurrence, or other cause, unless CONSULTANT has provided the DISTRICT with timely written Notice of Potential Claim as hereinafter specified. The written Notice of Potential Claim shall set forth the reasons for which the CONSULTANT believes additional compensation will or may be due, the nature of the cost involved, and, insofar as possible, the amount of the potential claim. The said notice as above required must have been given to the DISTRICT prior to the time that the CONSULTANT shall have performed the work giving rise to the potential claim for additional compensation, if based on an act or failure to act by the DISTRICT, or in all other cases within 15 days after the happening of the event, thing, occurrence, or other cause, giving rise to the potential claim. It is the intention of this paragraph that differences between the parties relating to this Agreement be brought to the attention of the DISTRICT at the earliest possible time in order that such matters may be settled, if possible, or other

11-appropriate action promptly taken. The CONSULTANT hereby agrees that it shall have no right to additional compensation for any claim that may be based on any such act, failure to act, event, thing, or occurrence for which no written Notice of Potential Claim as herein required was filed with the Director of Public Works.

b. Processing of Actual Claim. In addition to the above requirements for Notice of Potential Claim, a detailed, Notice of Actual Claim must be submitted in writing to the DISTRICT on or before the date of final payment under this Agreement. All such claims shall be governed by the procedures set forth in section 20104.2 and 20104.4 of the Public Contract Code, except that the word "claim" as used in said sections shall be construed as referring to any claim relating to this Agreement. The CONSULTANT shall not be entitled to any additional compensation unless CONSULTANT has (1) provided the DISTRICT with a timely written Notice of Actual Claim and (2) followed the procedures set forth in Public Contract Code section 20104.2 and 20104.4.

c. Claim is No Excuse. Neither the filing of a Notice of Potential Claim or of a Notice of Actual Claim, nor the pendency of a dispute or claim, nor its consideration by the DISTRICT, shall excuse the CONSULTANT from full and timely performance in accordance with the terms of this Agreement.

17. CONSULTANT is an Independent Consultant. It is expressly understood that in the performance of the services herein provided, CONSULTANT shall be, and is, an independent CONSULTANT, and is not an agent or employee of DISTRICT. CONSULTANT has and shall retain the right to exercise full control over the employment, direction, compensation, and discharge of all persons assisting CONSULTANT in the performance of the services rendered hereunder. CONSULTANT shall be solely responsible for all matters relating to the payment of his employees, including compliance with Social Security, withholding, and all other regulations governing such matters. The parties agree that (1) Consultant shall be responsible for the control and direction of its own employees and personnel in the performance of the Services under this Agreement; (2) the Consultant’s personnel shall only perform work that is outside the usual course of the District’s business; and (3) Consultant’s personnel shall be engaged in business independent of the District. Consultant shall defend and indemnify the District against any claim by any worker that it is actually an employee of the District.

18. Entire Agreement and Modification. This Agreement constitutes the entire understanding of the parties hereto. CONSULTANT shall be entitled to no other compensation and/or benefits than those specified herein. No changes, amendments or alterations shall be effective unless in writing and signed by both parties. CONSULTANT specifically acknowledges that in entering into and executing this Agreement, CONSULTANT relies solely upon the provisions contained in this Agreement and no others.

19. Enforceability. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.

20. Warranty of CONSULTANT. CONSULTANT warrants that CONSULTANT and each of the personnel employed or otherwise retained by CONSULTANT for work under this Agreement are properly certified and licensed under the laws and regulations of the State of California to provide the special services herein agreed to.

21. Sub-consultants.

a. CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the DISTRICT.

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b. Any subcontract entered into by CONSULTANT relating to this Agreement shall contain all the provisions contained in this Agreement.

c. Any substitution of sub-consultants must be approved in writing by the DISTRICT in advance of assigning work to a substitute sub-consultant.

22. Applicable Law and Venue. This Contract has been executed and delivered in the State of California and the validity, enforceability and interpretation of any of the clauses of this Contract shall be determined and governed by the laws of the State of California. All duties and obligations of the parties created hereunder are performable in San Joaquin County and such county shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Contract.

23. Notices. Any notice required to be given pursuant to the terms and provisions hereof shall be in writing and shall be sent by first class mail as follows:

To the DISTRICT at: STOCKTON UNIFIED SCHOOL DISTRICT

2141 Robindale Ave Stockton, CA 95205 Phone: (209) 933-7095 Email: purchasingstaffdl@stocktonusd.net Attention: Sheikia Wilson, Director of Purchasing Services

To the CONSULTANT at: [enter Consultant contact name]

[enter Consultant address]

24. Findings Confidential. No reports, maps, information, documents, or any other materials given to or prepared by CONSULTANT under this Contract which DISTRICT requests in writing to be kept confidential, shall be made available to any individual or organization by CONSULTANT without the prior written approval of DISTTRICT.

25. Quality Control and Quality Assurance The CONSULTANT shall provide a description of their Quality Control procedure. The process shall be implemented for all facets of work and a QC-QA statement and signature shall be placed on all submittals to the DISTRICT.

26. Fingerprinting Requirements Consultant agrees to provide the District with written certification that Consultant has complied with the fingerprinting and criminal background investigation requirements of the California Education Code with respect to all Consultant's employees who may have contact with District students in the course of providing said services, and that the California Department of Justice has determined that none of those employees has been convicted of a felony, as defined in Education Code sections 45122.1 through 45125.5.

27. Antidiscrimination It is the policy of the District that in connection with all work performed under Agreements, there be no discrimination against any prospective or active employee engaged in the work because of race, color, ancestry, national origin, religious, creed, sex, age or marital status. The Consultant agrees to comply with applicable federal and California laws, including but not limited to, the California Fair Employment and Housing Act, beginning with Government Code section 12900. In addition, the Consultant agrees to require like compliance by any subcontractors employed on the work by such Consultant.

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In accordance with Government code section 12990, the Consultant shall give written notice of its anti-discrimination obligations to any labor organization with which Consultant has a collective bargaining or other agreement. The Consultant shall also require any subcontractor it hires to provide written notice of its anti-discrimination obligations to any labor organizations with which the subcontractor has a collective bargaining or other agreement.

28. Force Majeure. In the event either party is unable to perform its obligations under the terms of this Contract because of acts of God, strikes, pandemics, or other such events reasonably beyond the parties’ control, such non-performing party shall not be liable for damages resulting from such failure to perform; provided, however, that such non-performing party must notify the other party of its inability to perform due to a force majeure event and must resume performance as soon as is reasonably practicable thereafter.

IN WITNESS THEREOF, DISTRICT and CONSULTANT have executed this Agreement on the day and year first hereinabove set forth.

STOCKTON UNIFIED SCHOOL DISTRICT CONSULTANT

Signature Signature

Michele Huntoon Ed.D.

Associate Superintendent, Business & Operations Name (Print)

Date Date

BOARD APPROVAL DATE: ITEM NO. ____________