SHARP_-Template_Contract_Form_Professional_Services_Agreement_-_2.1.2024.pdf

1784\10\2911203.1

PROFESSIONAL SERVICES AGREEMENT

Initial Information

Date of Agreement: ______________________, 2024

Name of Patnership, LLC information:

Name Point of Contact Name

Address

Telephone number Email

Consultant/vendor:

Name dba:

Point of Contact Name

Address

Telephone number email

Project Name:

Type of Service(s):

Dates of contract:

Effective Date: ____________________________

Termination Date:__________________________

Signatures p.10

Insurance Requirements attached as Exhibit A

Scope of Services attached as Exhibit B

Payment Schedule attached as Exhibit C

THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is entered into as of date set forth above in the Initial Information, by and between SHARP and Consultant identified in the Initial Information above.

RECITALS

A. SHARP needs the Services described in Exhibit B - State of Work to be performed in connection with the Project described above in the Initial Information.

B. Consultant has indicated that it has the experience and competence necessary to perform the Services.

C. SHARP wishes to engage Consultant, and Consultant wishes to be engaged by SHARP, to perform the Services.

D. To facilitate communication, the parties to this Agreement have designate the representatives set forth in the Initial Information above, with responsibility for the routine administration of each party’s obligations under this Agreement.

NOW, THEREFORE, SHARP and Consultant agree as follows:

ARTICLE 1.

SCOPE OF SERVICES

1.1 Scope of Services.

Consultant shall agree to perform the services outlined in the Scope of Services, as attached to this Agreement as Exhibit B (referred to as the "Scope of Services"). SHARP reserves the right to modify the Scope of Services in accordance with Section 1.2 below.

1.2 Changes in Scope of Services.

SHARP, without invalidating this Agreement, may, from time-to-time, request changes in the Scope of Services, including additions, deletions, or other revisions (referred to as “Changed Services"). Any such Changed Services shall be documented through a written amendment to this Agreement. Upon the mutual agreement of both SHARP and Consultant, the signed Agreement (the "Agreement Amendment") shall be integrated as part of the original agreement.

In the absence of an executed Agreement Amendment, no (1) course of conduct or dealings between the parties, nor (2) express or implied acceptance of alterations or additions to the Scope of Services, nor (3) any claim that SHARP has been unjustly enriched by any alterations or addition to the Scope of Services (whether or not there is in fact any such unjust enrichment) shall be basis for any claim by Consultant for additional compensation.

ARTICLE 2.

AGREEMENT TERM; TERMINATION

2.1 Term.

The term of this Agreement (the "Term") begins on the date first written above and remains in effect until completion of the Services, unless earlier terminated by SHARP in accordance with the provisions of this Agreement. Consultant is prohibited from commencing the performance of the Services before the execution of this Agreement by both parties. No payment will be authorized for services performed prior to the execution of this Agreement by both parties.

2.2 Termination.

(a) Termination By SHARP for Cause. Without prejudice to any other remedy to which SHARP may be entitled, SHARP reserves the right to terminate this Agreement with seven (7) days written notice to Consultant if Consultant is found to be in breach of any provision of this Agreement.

(b) Termination By SHARP for Convenience. SHARP reserves the right to terminate this Agreement at any time and without cause, for SHARP’s by providing thirty (30) days’ written notice to Consultant.

(c) Termination Actions. Upon receipt of written notice from SHARP regarding termination Consultant shall take the following actions: (i) cease operations as directed by SHARP in the notice; (ii) deliver to SHARP all documents, reports, surveys, material and specifications developed by Consultant in connection with this Agreement ("Work Product") completed up to the date of termination, and (iii) Terminate all existing subcontracts and purchase orders, except for Services directed to be performed prior to the effective date of the termination stated in the notice and refrain from entering into any further subcontract and purchase orders. In the event of such termination, and as Consultant’s sole remedy for such termination, Consultant shall be entitled to receive payment (prorated as applicable) for Services properly executed pursuant to the Agreement prior to termination. SHARP shall not be liable for any termination expenses, penalties, lost profits or any other special or consequential damages suffered by Consultant as a result of SHARP's termination of the Agreement.

ARTICLE 3.

COMPENSATION

3.1 Payment Schedule.

Consultant shall receive compensation in accordance with the schedule and terms outlined in the Payment Schedule, attached to the Agreement as Exhibit C (referred to as the "Payment Schedule"), SHARP reserves the right to modify the Payment Schedule pursuant to an Agreement Amendment as detailed in Section 1.2.

3.2 Expenses.

All expenses of Consultant are included in the amounts payable pursuant to the Payment Schedule and no expenses shall be reimbursed separately. Consultant may be reimbursed for expenses, including but not limited to travel charges, mileage, meals, supplies, electronic equipment, business accounts, or any other personal expenses, incurred in connection with the performance of the Services. All expenses submitted for cost reimbursement must include receipts, and SHARP will only cover fees in accordance with the GSA rates or the IRS rates for the area."

3.3 Payment Application.

(a) Payment Application. On the last business day of each month during the

Term, Consultant shall submit a payment application (the "Payment Application") to SHARP at the address specified in the Initial Information. Consultant's Payment Application must be accompanied by all applicable invoices and shall clearly delineate the following information: (1) the Services performed during current payment period, (2) the amount due, (3) the total amount billed to date, and (4) the remaining Agreement amount if applicable. Consultant acknowledges that a delay in payment may occur as a result of Payment Applications that do not clearly contain the aforementioned information.

(b) Payment by SHARP. SHARP shall review each Payment Application submitted by Consultant to determine whether the Services performed are in compliance with the provisions of this Agreement. If no charges are disputed by SHARP and Consultant is not in default under this Agreement, SHARP shall provide payment to Consultant within thirty (30) days following receipt and approval of the Payment Application. In the event any charges are disputed by SHARP, the original Payment Application shall be returned by SHARP to the Consultant for correction and resubmission within thirty (30) days following SHARP's receipt of the initial Payment Application. SHARP shall have no obligation to pay costs set forth in a Payment Application until such Payment Application has been approved by SHARP pursuant to this Section. Payment to Consultant for Services under this Agreement shall not be deemed to waive any defects, errors, or omissions in Services performed by Consultant.

ARTICLE 4.

PERFORMANCE OF THE WORK

4.1 Standard of Care.

Consultant along with its employees, subcontractors, and other individuals or entities performing portions of the Services for or on behalf of Consultant, shall perform all Services in a manner consistent with the standard of professional skill and care under California law. This standard applies to those who specialize in providing such services, under circumstance similar to that of the Services which is the subject of this Agreement (the "Standard of Care").

4.2 Supervision of the Services.

Consultant shall supervise and direct the Services in a manner consistent with the Standard of Care. Important communications shall be confirmed in writing. Consultant shall have the right to retain employees or subconsultants as necessary to support the performance of the Services. Within three (3) business days of retaining such persons, Consultant shall inform SHARP of their identity. . Consultant shall be responsible to SHARP for acts and omissions of Consultant's employees, subconsultants, and other individuals or entities performing portions of the Services for or on behalf of Consultant shall be responsible for any damages, losses, costs, expenses resulting from such acts and omissions.

4.3 Compliance With Laws.

In its performance of its obligations under this Agreement, Consultant shall comply with all laws, ordinances, codes, rules, regulations, licensing, permitting or certification requirements applicable to the conduct of Consultant's business and the provisions of Services under this Agreement. If Consultant performs Services contrary to applicable laws, ordinances, codes, rules and regulations, Consultant shall assume responsibility for such Services and shall bear the costs attributable to correction.

4.4 SHARP Ownership of Work Product.

All Work Product developed or assembled by Consultant in connection with this Agreement shall be the exclusive property of SHARP. SHARP shall own all rights, title and interest in and to the Work Product including, without limitation, all trademarks, copyrights, trade secrets, patents, and any and all other intellectual property rights. SHARP shall have the unrestricted right to use and disclose the Work Product in any manner and for any purpose related to the Project without payment of further compensation to Consultant.

SHARP shall have these rights regardless of whether this Agreement is terminated early or Consultant fully performs its services under this Agreement. SHARP shall have access to the Work Product in any form at all times during the Term. Any Work Product in the possession of Consultant upon completion or termination of this Agreement shall be promptly delivered to SHARP upon payment to Consultant for services rendered in accordance with this Agreement prior to termination or completion.

While copies of the Work Product including reproducible copies may be retained by Consultant warrants that the Work Product shall not be made available by to any person or entity for use without the prior approval of SHARP except in connection with the Project.

4.5 Confidentiality.

Consultant understands and agrees that, in the performance of the Services or in contemplation thereof, Consultant may have access to private or confidential information which may be owned, controlled by SHARP. Such information may contain proprietary or confidential details, and the disclosure of such information to third parties may be damaging to SHARP. Consultant agrees that all information disclosed by SHARP shall be held in confidence and shall not be divulged, disclosed or communicated in any manner without the consent of

SHARP, except as required by law. The disclosed information shall be used only in the performance of the Services.

4.6 Nondiscrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, religion, creed, national origin or ancestry, sex, gender identity, age, marital or domestic partner status, sexual orientation or disability (including HIV or AIDS status) in the performance of this Agreement. Consultant will ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, creed, national origin or ancestry, sex, gender identity, age, marital or domestic partner status, sexual orientation or disability (including HIV or AIDS status). Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; selection for training, including apprenticeship; and provision of any services or accommodations to SHARPs or the general public.

4.7 Records; Audits.

(a) Records. Consultant shall keep and maintain, in accordance with generally accepted accounting principles, full, complete, and appropriate books, records, and accounts related to the performance of the Services. These include all necessary or prudent records to evidence and substantiate in full detail Consultant's compliance with the terms and provisions of this Agreement. All such books, records, and accounts shall be open to and available for inspection, copying and auditing by SHARP, and its auditors or other authorized representatives at reasonable intervals during normal business hours. Consultant shall preserve such records for a period of not less than four (4) years after receiving the final payment from SHARP. SHARP shall notify Consultant of any records it deems insufficient. Consultant shall have fifteen (15) calendar days after receiving such notice to correct any deficiency in the records specified by SHARP or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Consultant shall begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible.

(b) Audits. SHARP or any of its duly authorized representatives, shall have the right to perform any audit of Consultant's finances and records related to its performance of the Services under this Agreement. This includes, without limitation, the financial arrangement with anyone Consultant may delegate to discharge any part of its obligations under this Agreement.

ARTICLE 5.

INSURANCE; INDEMNIFICATION

5.1 Insurance.

Consultant shall comply with the insurance requirements outlined in Exhibit A attached to this Agreement, and shall furnish SHARP with a certificate of insurance prior to commencement of the Services under this Agreement.

5.2 Indemnification.

To the fullest extent permitted by law, Consultant shall indemnify, hold harmless, and defend SHARP and its officers, directors, employees, and agents, from and against claims, liabilities, damages, losses, costs, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Services, failure to perform Services or condition of the Services, to the extent caused in whole or in part by the negligent acts or omissions of Consultant, a subconsultant, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. This obligation shall not negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section. The provisions of this Section shall survive the expiration or termination of this Agreement.

ARTICLE 6.

GENERAL PROVISIONS

6.1 Notices.

Any notice, consent, approval, demand or other communication required or permitted to be given hereunder (a "Notice") must be in writing and may be served by facsimile or by a nationally recognized overnight courier which requires written proof of delivery. Any such Notice shall be addressed to SHARP and Consultant at the addresses set forth in the Initial Information

Any Notice sent by facsimile shall be effective upon confirmation of receipt in legible form, and any Notice sent by a nationally – recognized overnight courier shall be effective on the date of delivery (or the date of refusal to accept delivery) to the party at its address specified above as set forth in the courier’s delivery receipt. Either party may, by Notice to the other from time to time in the manner herein provided, specify a different address for Notice purposes.

6.2 Severability.

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be severed from this Agreement and all other terms and provisions of this Agreement shall nevertheless remain in full force and effect.

6.3 Entire Agreement; Amendment.

This Agreement (including the Initial Information, and any exhibits, riders or schedules attached hereto) constitutes the entire agreement between the parties. There are no other agreements, understandings, representations, or warranties, oral or written, relating to the subject matter hereof between the parties. The parties to this Agreement have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (including but not limited to Civil Code Section 1654) shall not apply to the interpretation of this Agreement. In the event any provision of any Exhibit attached hereto conflicts or is inconsistent with or different from any provision of this

Agreement, the provisions of this Agreement shall prevail. This Agreement may not be amended, changed, or modified, in whole or in part, except in writing, signed by both parties.

6.4 Assignment.

Consultant shall not assign this Agreement without the written consent of SHARP, which consent SHARP may withhold in its sole discretion.

6.5 Rights of Third Parties.

Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person or entity, others than the parties hereto, any right or remedies under or by reason of this Agreement.

6.6 Remedies Cumulative.

No right, power, or remedy given to SHARP by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy. Each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to SHARP by the terms of any such instrument, or by any statute or otherwise against Consultant and any other person. Neither the failure nor any delay on the part of SHARP to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by SHARP of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.

6.7 No Partnership or Joint Venture.

(a) Independent Contractor. Nothing contained in this Agreement shall be interpreted or understood by any of the parties or by any third person as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between SHARP and Consultant or its agents, employees or subcontractor. Consultant shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required by the terms of this Agreement.

Consultant has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. Consultant is not authorized to act on behalf of SHARP with respect to any matters except those specifically set forth in this Agreement.

(b) Consultant's Employees and Agents. As an Independent Contractor, Consultant shall be solely responsible for its own acts and those of its agents and employees.

Consultant shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and shall include requirements in each agreement that subcontractor shall be solely responsible for similar matters relating to their employees. SHARP shall not have any liability or duty to any person, firm, corporation, or governmental body for any act of omission or commission, liability, or obligation of Consultant, whether arising from actions under this Agreement or otherwise. Nothing contained in this Agreement shall create or justify any claim against SHARP by any person that Consultant may have employed or with whom

Consultant may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the performance of the Services, and Consultant shall include similar requirements in any agreements entered into for the performance of the Services.

6.8 Time is of the Essence.

Time is of the Essence in the performance of all terms and conditions of this Agreement.

6.9 No Waiver.

No waiver of any provision or breach of this Agreement shall constitute a waiver of any other provision or breach of this Agreement.

6.10 Captions.

The headings or captions to the sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part thereof.

6.11 Governing Law.

This Agreement shall be governed by the laws of the state of California. It is the responsibility of Consultant to be informed of local, state and federal laws and requirements applicable to this Agreement and to perform the Services in compliance with such laws and requirements.

6.12 Counterparts.

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

[signatures on following page]

IN WITNESS WHEREOF, SHARP and Consultant have executed this Agreement as of the date first above written.

[SHARP]

By: James Shields Its: President, [SHARP]

By:

Its:

A-1

EXHIBIT A

INSURANCE REQUIREMENTS

(a) Without limiting Consultant's indemnification obligations set forth in this Agreement, Consultant shall purchase from, and maintain in place at its sole expense on a continuous basis during the performance of the Services, insurance in the forms set forth below.

This insurance will protect Consultant from claims which may arise out of or result from Consultant’s operations and completed operations under the Agreement, whether such operations are by Consultant or by a subconsultant, or anyone directly or indirectly employed by any of them. The insurance shall be provided by a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, The insurance shall be written for not less than the limits of liability specified below or required by law; whichever coverage is greater. It shall include contractual liability insurance applicable to Consultant’s obligations under Section 5.2 of the Agreement. Each policy shall contain a provision that the policy will not be canceled or allowed to expire or be materially changed or reduced until at least 30 days’ prior written notice has been given to SHARP.

(1) Worker’s Compensation Insurance. Consultant shall obtain Worker’s Compensation insurance as required by California law and Employer’s Liability with a limit not less than $1,000,000 per occurrence. Such policies shall contain a waiver of subrogation on a form acceptable to SHARP.

(2) Commercial General Liability Insurance. Consultant shall obtain Commercial General Liability insurance written on an occurrence policy form including Blanket Contractual Liability (insuring the obligations assumed by Consultant in the Agreement), Employees as Additional Insured, Completed Operations-Products Liability, Personal Injury Liability endorsement, Property Damage Liability including Broad Form Property Damage endorsement. "Claims-made" and "modified occurrence" policy forms are not acceptable. The minimum limits of liability shall be:

a. $1,000,000 Combined Single Limit per Occurrence Bodily

Injury and Property Damage.

b. $2,000,000 General Aggregate Limit.

c. $1,000,000 Products and Completed Operations Aggregate. Products and Competed Operations Insurance shall be maintained for a minimum period of three (3) years after final payment, and Consultant shall continue to furnish evidence of such coverage to SHARP on an annual basis during the aforementioned period.

(3) Comprehensive Automobile Liability Insurance. Consultant shall obtain Comprehensive Automobile Liability insurance applicable to any owned, non-owned or hired vehicle in limits not less than the following:

a. $1,000,000 per occurrence Combined Single Limit of

Bodily Injury and Property Damage Liability.

A-2

(4) Professional Liability Insurance. If Consultant is performing any professional work, the Consultant shall obtain errors and omissions insurance including full prior acts coverage, sufficient to cover any and all claims and suits arising out of all such work (or a retroactive date no later than the date on which Consultant commences such work). The insurance limits shall not be less than $1,000,000 per claim and $2,000,000 annual aggregate.

The policy shall include, without limitation, contractual liability coverage covering the obligations assumed by Consultant in the Agreement. Consultant shall maintain this coverage continuously in effect during the term of the Agreement and until all claims and suits arising out of such work are barred by the applicable statute of limitations and repose. In the event that Consultant subcontracts any portion of his professional duties, Consultant shall require any such subconsultant to purchase and maintain the insurance coverage as provide in this subsection.

(b) SHARP and such other persons and entities as may be designated by SHARP in writing, shall be named as additional insureds under the policies required by Sections (a)(2) and (a)(3) above, by way of endorsement acceptable to SHARP. The Additional Insured endorsement shall provide coverage arising out of both ongoing and completed operations. The endorsement must specify Consultant as the named insured and shall include the policy number and expiration date. The additional insured endorsement shall provide that the insurance is primary insurance with respect to the interests of such additional insureds, and that any other insurance or self-insurance maintained by or available to the additional insured shall be excess and non-contributory with the insurance provided hereunder. The coverage provided to the additional insureds must be at least as broad as that provided to Consultant and may not contain any additional exclusionary language or limitations applicable to the additional insureds. The endorsement shall provide that no act or omission of an additional insured shall affect or limit the coverage otherwise provided.

(c) Certificates of insurance acceptable to SHARP or, at SHARP’s request, copies of policies, shall be filed with SHARP prior to commencement of the Services. This includes all endorsements and waivers of subrogation referred to above and waiver, endorsements, and certificates from all subcontractors. Each certificate and endorsement must have an original signature by an authorized agent of the respective insurers. When any required insurance, due to the attainment of a normal expiration date or renewal date, shall expire, Consultant shall supply SHARP with Certificates of Insurance and amendatory riders or endorsements that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as was provided by the previous policy. In the event any renewal or replacement policy, for whatever reason obtained or required, is written by a carrier other than that with whom the coverage was previously placed, or the subsequent policy differs in any way from the previous policy, Consultant shall also furnish SHARP with a certified copy of the renewal or replacement policy unless SHARP provides Consultant with prior written consent to submit only a Certificate of Insurance for any such policy. All renewal and replacement policies shall be in form and substance satisfactory to SHARP and written by carriers acceptable to SHARP.

(d) In no event shall any failure of SHARP to receive certified copies or certificates of policies required under this Exhibit A or to demand receipt of such certified copies or certificates prior to Consultant’s commencing the Services be construed as a waiver by SHARP of Consultant’s obligations to obtain insurance pursuant to this Exhibit A. The

A-3 obligation to procure and maintain any insurance required by this Exhibit A is a separate responsibility of Consultant and independent of the duty to furnish a certified copy or certificate of such insurance policies.

(e) If Consultant fails to purchase and maintain, or require to be purchased or maintained, any insurance required under this Exhibit A, SHARP may, but shall not be obligated to, (i) upon five (5) days’ written notice to Consultant, purchase such insurance on behalf of Consultant and shall be entitled to be reimbursed by Consultant upon demand, or (ii) terminate this Agreement, and SHARP shall retain all remedies for breach of this Agreement. SHARP shall have the right to offset the cost of any such insurance, including without limitation, premiums, against any sums payable to Consultant under this Agreement. If Consultant fails to obtain insurance required by this Agreement, Consultant shall fully indemnify, defend and hold harmless SHARP and its officers, directors, employees, and agents from any and all claims for which the required insurance would have provided coverage.

(f) Any aggregate limit under Consultant’s liability insurance shall, by endorsement, apply to the Services separately.

(g) None of the requirements contained herein as to types, limits, and acceptability of insurance coverages to be maintained by Consultant are intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed by Consultant under the Agreement or at law, including without limitation, Consultant’s indemnification obligations and liability in excess of the limits and coverages required herein. Neither receipt of certificates, endorsements, or polices showing less or different coverage than required, nor any other forbearance or omission by or for SHARP, shall be deemed a waiver of, or estoppel to assert, any right or obligation regarding the insurance requirements herein. Consultant shall be solely responsible to pay any amount that lies within the deductible or self-insured retention of Consultant’s insurance policies, regardless of the amount of the deductible or self-insured retention and regardless of the cause of the loss, injury or damage.

B-1

EXHIBIT B

SCOPE OF SERVICES

A-2

EXHIBIT C

PAYMENT SCHEDULE

(4) Professional Liability Insurance. If Consultant is performing any professional work, the Consultant shall obtain errors and omissions insurance including full prior acts coverage, sufficient to cover any and all claims and suits arising out of a...