PROFESSIONAL SERVICES AGREEMENT

Transcription

1 PROFESSIONAL SERVICES AGREEMENT PURPOSE -- To provide a standard agreement for use with all Professional Service providers: 1. This Professional Services Contract must be used for all professional service agreements (legal, accounting, actuarial, medical/nursing, data processing/analysis, managerial consulting, teaching/training, technological consulting, except for interagency agreements ( memorandums of understanding or MOUs involving shared public agency services or joint projects) or special education-related services (governed by existing Master Contracts ) having an actual or potential value in excess of $. Contracts below this amount may use the Under $15,000 contract form, although this remains the preferred Contract form. 2. Only authorized employees may negotiate and sign contracts on behalf of the District. According to Board Policy, no District employee may sign a contract other than the Superintendent or the Chief Business Officer [or other Cabinet-level position]. Before the contract can be presented for signature to the Superintendent or Chief Business Officer, it must be reviewed and approved by the appropriate program-level administrator, [and the Contracts/Purchasing/Procurement Department Administrator], to ensure that all required documentation and information has been received. 3. Once preliminarily reviewed and approved by the Superintendent or Chief Business Officer, the contract must then be reviewed and approved by the Board before it is signed by the Superintendent or Chief Business Officer [or other Cabinet-level position]. No employee is authorized to modify or change any term of the Contract (verbally or in writing) after it has been signed, nor accept or direct the acceptance of services before the review and approval process is complete. 4. Vendors will be selected regardless of race, color, religion, ancestry, national origin, age, sex, marital status, disability. All Vendors must comply with the District s anti-discrimination policies. 5. The District will enter into a contract based on a determination of the Vendor s and each of its relevant employee s skills, experience, overall value, reputation, quality (complete, thoughtful, and well prepared advice and confirming documentation), and timeliness of work product, in addition to financial value and cost effectiveness. The District s selection process should almost always include reference checks (with other Districts, County Offices, and JPAs) to evaluate other parties experiences with the Vendor and, as appropriate, credit, banking, or other forms of background checks to ensure the financial and operational stability of the Vendor. Historic relationships and stability are important, but do not override the District s obligation to seek the most appropriate Vendor as applied to these criteria. 6. Competitive bidding is not legally required for legal, financial, economic, accounting, engineering, legal, or administrative contracts. In the protection of the District s interests, however, a Request for Proposal, a Request for Information, or a Request for Qualifications must be issued and duly publicized to potentially interested/qualified parties if the contract has a value or potential value in excess of $50, In order to support the District s budgetary need for accuracy and certainty, all professional service contracts are expected to be for a full and fixed amount for all defined services, or a clearly identified budget, after full and fair negotiation, further ensuring that the professional services cover a full fiscal year or identified project(s). No change in compensation will be permitted absent exceptional circumstances and Board approval. 8. In selecting a Vendor, no employee may be involved in, or influenced in any manner by, family, financial, or other interests or considerations prohibited by District policy or Government Code Sections 1090 and Failure to comply with these required processes and procedures may lead to discipline or personal financial exposure. Ed. Code Sections and If the violation involves fraudulent conduct, personal gain, or intentionally wrongful acts, the matter may be reported to law enforcement officials.

2 Professional Services Contract Process Chart Involved Party Division-Level Administrator (Director, Assistant Superintendent, Associate Superintendent) Contracts/Purchasing/Procurement Department Administrator Superintendent/Chief Business Officer Governing Board Action Identifies the need for the Professional Services. Preliminarily reviews budgetary and/or competitive bidding obligations. Conducts, authorizes, or delegates contract negotiations. Reviews proposed contract terms and ensures that required documents and information have been received from the proposed Vendor, signing draft contract to confirm that all required information has been received and attached. Helps ensure timely submission of contract package to Superintendent or Chief Business Official for review, approval, and signature. Answers any internal business needs questions. May help advise Vendor of contract approval/required modification, or other issues as needed. Coordinates review/approval of Invoices with Accounting Services, ensuring that invoices are only processed for payment after receipt of conforming and accepted goods/services. Upon receipt of signed Contract, confirms contract number, enters/updates Vendor information into system, ensures that all Contract package documents and information has been obtained, and prepares submission package for Board of Trustee review. Coordinates and processes Vendor invoices for payment with Division-Level Administrator and prepares and submits required forms/documents for issuance of check/electronic funds. Ensures business need and suitability of Contract, obtains additional information if needed, directs changes/modifications if needed, executes Contract and ensures placement of Contract on Board of Trustees agenda for review (usually consent agenda item). Reviews all contracts and approves/rejects same. Must provide advance approval for any contract other than for general supplies, materials, apparatus, equipment, and/or services. All professional services should be pre-reviewed and approved by the Board.

3 SCHOOL DISTRICT Business Department Address/Phone/Fax District Mailing Address: PROFESSIONAL SERVICES CONTRACT Contract # Vendor # This Professionals Services Contract ( Contract ) is entered into by the ( District ) and ( Vendor, an independent contractor, which is solely responsible for (i) all taxes, fees, licenses, and reporting obligations under local, state and/or federal laws, (ii) providing the required tools of its trade, and training, supervising, and independently managing its employees, and (iii) ensuring its compliance with legal and contractual obligations without explicit direction regarding the sequence or details of the Professional Services (except as may be required by governing laws or regulations). Vendor s business address is, the telephone number is, the facsimile/ address is. The Vendor is a: Corporation/LLC, Partnership/LLP, a Sole Proprietorship/dba of an Individual. [The actual legal name of the person/entity must be listed above], who is in good standing with all licensing and regulatory authorities. PROFESSIONAL SERVICES The Professional Services to be performed are as follows: [Clearly identify all Professional Services or say See Attached and physically attach the required detailed description]. INTEGRATED DOCUMENT, INCORPORATED PROVISIONS, PRE-CONTRACT DOCUMENTATION This fully integrated Contract, including any physically attached addenda or exhibits, is the sole expression of the parties understanding and agreement. In the case of a conflict, the terms of this Contract control unless a physically attached document contains an express and jointly agreed statement that the terms of addendum or exhibit control. The Vendor s pre-printed purchase orders, invoices, delivery orders, or similar types of document do not meet this requirement. The Vendor warrants as being true and accurate the following documents, which must be physically attached to the Contract and become a part hereof, before this Contract is submitted to the Board for approval: Required Documentation Received or N/A (Initial and Date) Required Documentation Received or N/A (Initial and Date) Contract signed by Vendor Employee Background Check Certification (if applicable) W-9/Federal Taxpayer ID (Received, but not Attached for Bd.) Request for Direct Payment Form (Received, but not Attached for Bd.) Professional License (if applicable) Location/Site Documents (if applicable) Business License Other (Addendums, Exhibits, etc.): Required Insurance Documentation TERM This Contract is for: A single project/task, or multiple projects/general services, which shall begin on and continue until. [Multi-year agreements are possible, but will be considered a preapproved series of one-year agreements, with a maximum time period of three years]. This Contract may be extended by mutual agreement, on identical terms, for an additional one-year period. At the end of the extension period, or if at any time one or both parties desire to modify the terms of the Contract, the Contract must be fully reviewed and evaluated under all governing District processes and laws, including potential obligation sot engage in competitive bidding or review. LOCATION Professional Services will be provided at: (District-wide or specific site, if applicable):. If the Professional Services require (i) the District s employees or students to regularly receive the Professional Services at a location not owned or leased by the District, or (ii) the District s real, personal, or technology assets will be held or stored, the Vendor shall provide evidence of the Vendor s ability to occupy and use the site

4 for the period contemplated by this Contract, with Vendor representing that the site is safe, reasonable and appropriate for delivery of Professional Services in the manner contemplated by this Contract. CONTRACT AMOUNT AND PAYMENT TERMS Vendor agrees to provide Professional Services to District [in the total sum of $, after the Professional Services are provided and the District receives a duly submitted invoice.] [on an hourly basis, which shall be on the following terms: [title or name, at $, per hour..], which shall be invoiced monthly in 1/10 th hour increments, based only on reasonable and necessary time expended by trained and experienced professionals for the Professional Services, for pre-approved tasks and time estimates for services expected to exceed [one hour, two hours, etc.] unless otherwise expressly authorized, and only for the attendance or substantive participation of one involved professional in any meeting or issue absent advance written consent by the District.] [Other negotiated terms that describe proper professional and billing practices.] The [agreed sum] [hourly rate] includes all costs and expenses associated with the Professional Services, including telephone, facsimile, word processing, mailing, and research/internet access resource costs. Exceptions to this requirement are only for special or exceptional expenses, which include. Vendor shall submit invoices for payment as follows: (Payment terms and method of submission). District will review, dispute, and/or approve submitted invoices within days, and make payment of approved invoices within days thereafter. Vendor s federal and state tax identification numbers are and. A W-9 (federal Request for Taxpayer Identification Number and Certification form) must be submitted to the District with a signed copy this Contract. [Payment will be by check, mailed to the Vendor s address, unless a Request for Direct Payment Form is submitted with a signed copy of this Contract.] RELIANCE Vendor is obligated to timely and fully request and obtain all facts, documents, and information relevant or necessary to the performance of its Professional Services, with District relying on Vendor for timely and accurate Professional Services that meet the District s needs and interests, and that ensure that the Vendor complies with all obligations under this Contract. STAFFING AND PERFORMANCE STANDARDS Vendor will perform the Professional Services, including all related duties and obligations associated with the Vendor s obligations under this Contract, with the highest degree of professionalism and in keeping with all standards applicable to licensed, experienced, and/or skilled providers of such Professional Services. Vendor shall also ensure that its employees use the latest tools, resources, professional resources, and technologies in providing the Professional Services. Individuals performing Professional Services on behalf of the District include, who the Vendor represents as having sufficient skills, experience, talents, and familiarity in all areas of the Professional Services to be provided, and shall perform all such tasks in a timely, thoughtful, and professional manner. These are the only professionals authorized to perform Professional Services absent specific authorization from the Superintendent or the Contract Liaison. The Vendor shall immediately notify District of any actual or potential change in staffing, whether due to termination, resignation, or reassignment, of assigned Vendor employees. The District reserves the right to cancel or terminate this contract upon a change in assigned staffing. CONTRACTUAL COMPLIANCE AND CONFLICTS The Vendor must at all times comply with this Contract and advance and protect the interests of the District, not the interests of any individual District employee or group of employees. If Vendor identifies a potential conflict or divergence of interests or directives between the District and any of its employees, Vendor must comply with the obligations of this Contract and provide notice to the Contract liaison of the actual or potential conflict or divergence of interests or directives. AUDIT, INSPECTIONS, AND IDENTIFICATION OF DEFICIENCIES In order to fulfill its obligation to ensure that public funds are properly being expended, that the Contract is serving the best financial and operational needs of the District, and that the terms and expectations of this Contract are being fulfilled, the Vendor shall make its records, work, work product, and employees available for review, audit, and interview as District may determine to be reasonably necessary or appropriate. The District is authorized to conduct a review and/or audit of the Vendor s services, records, documents, or work product, at any time, in order to determine whether the agreed professionals and/or the Professional Services are meeting the requirements of this Contract and any governing laws or regulations. While the Vendor is solely obligated to manage its operations and professional staff, and independently ensure compliance with the obligations under this Contract, the District reserves the right to provide Vendor with verbal or written reviews of the

5 Vendor s performance and provide Vendor with suggestions for curing any identified deficiencies or inadequacies. Vendor must independently determine what action, if any, should be taken to address the District s questions or concerns. OWNERSHIP OF RECORDS/INFORMATION All tangible and intangible work, work product, intellectual property, or other assets or documents created, prepared by, developed by or as a result of, or obtained by or through the Vendor based on compensation or Professional Services associated with this Contract are solely the property, intellectual property, and/or assets of the District, who shall be solely entitled to determine how to register, copyright, manage, or use such property or assets, with Vendor prohibited from sharing, using, or distributing for use by others, such property or assets absent the express and advance written permission of District. LICENSES, LEGAL COMPLIANCE AND BEST PRACTICE STANDARDS Vendor, and each employee who is expected to provide Professional Services to the District, shall be licensed to provide such services as required by any federal, state, or local regulatory agency, with Vendor and its employees remaining at all times in compliance with business licensing, sales, and other relevant laws and regulations. Vendor must immediately notify District of any actual or threatened licensing violation or complaint, including any investigation by any licensing or regulatory agency, whether or not such complaint relates to this Contract or the Vendor s Professional Services for the District. Vendor will also conduct all of its business operations within the best practice standards of its industry in terms of the Professional Services and business operations that may impact the District or this Contract. CANCELLATION AND TERMINATION Because the District relies upon its Professional Service Vendors to provide critical information, advice, and work product upon which it must rely in meeting its duties and obligations, if the District at any time loses confidence in the ability of the Vendor to provide the Professional Services under this Contract, the District may give notice of cancellation on 60 days written notice. Upon cancellation, the Vendor will be entitled to compensation only for the actual value of the Professional Services rendered to the District through the conclusion of the Contract. The Consultant may also give notice of cancellation of the Contract upon 60 days written notice, for any good faith reason other than compensation under this Contract, except that if District determines that the proposed cancellation date would unduly prejudice the District s interests, the District has a right to extend the cancellation date for up to an additional 60 days or the completion of one or more identified projects. The Vendor will be entitled to compensation only for the actual value of the Professional Services rendered to the District through the conclusion of the cancelled Contract. The District may also immediately terminate this Contract upon its determination that the Vendor has violated any law or regulation governing its Professional Services, whether or not the violation relates to Professional Services provided to the District, has committed fraud or knowing misrepresentations of fact to the District or any other client of the Vendor, presents an identifiable safety or health risk that has been identified to the Vendor and not immediately resolved to the District s satisfaction, or there has been a knowing and intentional breach of any of the obligations of this Contract. NOTICES AND LIAISONS Both parties employees and representatives will cooperate with one another in implementing the provisions of this Contract in a positive and proactive manner, communications regarding the rights, obligations, cancellation, or termination of this Contract shall be exchanged only between the liaisons below, with delivery of the communication effective upon actual receipt by the other party by mail, facsimile transmission or confirmed electronic mail. Liaisons do not have authority to modify this Contract, but serve as the primary representatives for ensuring compliance and/or the exchange of relevant information. DISTRICT: [Name, address, telephone, fax] VENDOR: [Name, address, telephone, fax] COMPLIANCE WITH LAW AND DISTRICT POLICIES/CONFIDENTIALITY Vendor and its employees will at all times comply with all District policies and procedures, as well as federal, state, and local laws and regulations, requirements, standards, and guidelines applicable to its operations. Vendor is likely or expected to come into contact with private or confidential information protected from disclosure by District policy, the Family Educational Rights and Privacy Act (FERPA), California workplace privacy laws or regulations, or other health, disability, or other confidentiality laws or regulations. Vendor and its employees will hold all confidential or sensitive District information in the strictest of confidence. It shall not be disclosed to anyone other than a duly authorized District representative absent the written consent from the District liaison or by a duly issued and proper Court Order or subpoena, the

6 existence of which must be immediately notified to the District. It is the Vendor s sole and separate obligation to ensure that it understands all such laws, regulations, policies, standards, and guidelines and informs its employees related to these privacy and confidentiality requirements, with both the Vendor and its employees individually obligated to comply and ensure compliance with such obligations. Vendor shall immediately advise the District of any actual or potential violation or breach of this obligations. Vendor and each of its employees will cooperate with District in addressing and resolving any regulatory or administrative investigation, as well as implementing any remedial or corrective action. SUBCONTRACTING AND ASSIGNMENT OF DUTIES Vendor will not subcontract or transfer any duty or obligation under this Contract to any other person or entity without advance written approval by District. Vendor must then require the subcontracting party to submit a written agreement to the District agreeing to be bound by all obligations in this Contract, with the Vendor ensuring that insurance, licensing, and related documentation is gathered and provided to the District before the subcontractor performs any services associated with this Contract. INSURANCE/INDEMNITY/RESPONSIBILITY FOR SERVICES Should Vendor breach the obligations of this Contract resulting in actual harm or damage to the District, Vendor shall promptly make the District whole for any loss or damage caused by such breach, including the cost or expense of replacement or supplemental Professional Services that may be reasonable or necessary to rectify any act, error, or omission of Vendor. In response to a claim by anyone other than the District (i.e., a third party claim), arising from harm actually or allegedly caused by Vendor or its employees or agents acts, errors, omissions, advice, or recommendations in the providing of Professional Services, Vendor will defend and indemnify the District and its directors, officers and employees unless the claim arises from the District s failure to follow the advice or recommendations of the Vendor or the District has knowingly failed to provide the Vendor with requested information that would have materially changed the scope or content of the Vendor s Professional Services. Vendor must purchase and at all times maintain liability insurance equal to its indemnity obligations, specifically including (1) broad form commercial general liability coverage [including advertising and personal injury coverages], (2) personal/commercial automobile liability insurance (including, as appropriate, owned, hired, and borrowed auto coverages), and (3) professional liability/errors and omissions insurance that specifically extends coverage for wrongful acts arising from the Vendor s providing of Professional Services. The limit of liability for such coverage shall be no less than $1 million per occurrence for all coverages other than the professional liability/errors and omissions coverage, which shall be no less than $2 million per Claim. The District and its directors, officers, and employees shall be named as additional insureds under each liability policy, although the District may waive the requirement to be added as an additional insured under the professional liability coverage upon adequate proof that such coverage cannot be extended to the District by the Vendor s professional liability insurer pursuant to the express terms of the insurer s underwriting guidelines. If Professional Services are expected or intended to occur at a site other than one owned or leased by the District, at which location District students or employees will be present, the Vendor must also provide evidence of real property and/or contents insurance coverage applicable to the location. Vendor shall also maintain workers compensation insurance unless the Vendor is a sole proprietor/owner. No deductible or self-insured retention shall exceed $10,000 absent written authorization from the District approving a higher deductible/selfinsured retention, which must be physically attached to this Contract, and which is based on a determination that the Vendor can financially meet such deductible/retention obligations in the case of a claim. VENDOR EMPLOYEE BACKGROUND CHECKS The District has determined that (one box must be checked): In keeping with Education Code Section (b), (c), and/or (d), there is no reasonable need for a criminal background check of Vendor s employees who are expected to provide Professional Services at a District site because (1) there will be no interaction with students, (2), there will only limited potential interaction with students and all such interaction will be under the direct supervision of a District employee, or (3) the goods or services are being provided on an emergency basis, such that the requirements of Section do not apply; or In keeping with Education Code Section (a) and/or (c), there is a basis to believe Vendor s employees, volunteers, or subcontractors may come into repeated and potentially non-directly supervised interactions with students such that these individuals must be fingerprinted and background checked. The required verification can be performed (1) by the District, with Vendor paying District $ per individual verified, or (2) by the Vendor, with a Vendor Certification provided

7 to the District before any goods or services can be provided. A falsely submitted certification, or a knowing failure to comply with this obligation during the Contract, may be reported to applicable regulatory and/or law enforcement authorities. AUTHORIZATION FOR VENDOR REFERENCE AND BACKGROUND CHECKS By signing below, whether or not this contract is ultimately approved by the District, the Vendor authorizes the District to conduct background, reference, banking, licensing, regulatory and other investigations, both before and during the pendency of this Contract, and Vendor further warrants and authorizes contacted parties to provide reasonable and accurate information to District so that it may determine, or continue to determine, that the Vendor is an appropriate party to provide Professional Services. WARRANTY Vendor warrants that the statements contained herein, and any statements that may be contained in a Response to a Request for Proposal/Information/Inquiry/ Qualification, is true, complete and accurate as of the date of the Vendor s authorized signature below. VENDOR: (Signature) (Print) Date: DISTRICT: (Signature) Superintendent/Chief Business Officer (print) Date: Division-Level Approval of Proposed Contract (Signature) Department-Level Administrator (print) Date: Board of Trustees Review:

8 SCHOOL DISTRICT Business Department Address/Phone/Fax District Mailing Address: Contract # Vendor # VENDOR CERTIFICATION I,, am the (title) of (Name of Vendor). Under the penalty of perjury, pursuant to Education Code Section , I have personally conducted or reviewed the required criminal background check(s) of all employees, volunteers, and/or subcontractors who will be providing goods and/or services to the District ( District ) on behalf of Vendor, and none of those persons have been reported by the Department of Justice ( DOJ ) as having been convicted of a serious or violent felony as specified in Penal Code Sections and/or (c). This Certificate has been signed only after all required clearances from the DOJ have been received regarding those persons named on the attached list. On behalf of the Vendor, I confirm the understanding that no other employee, volunteer, or subcontractor will provide goods or services to the District who has not received the required clearance. As further required by Education Code Section , attached hereto and incorporated herein is a list of the names of the employees, volunteers, and/or subcontractor employees who will be providing goods or services to the District and who may come in contact with pupils. I agree to keep this list current and to notify the District of any additions/deletions as they occur. The identified individuals will wear distinctive clothing and/or identification noting them as employees, volunteers, or subcontractors of Vendor. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this day of, 20, in, California. (Signature)

9 SCHOOL DISTRICT Business Department Address/Phone/Fax District Mailing Address: LIST OF EMPLOYEES/VOLUNTEERS/SUBCONTRACTOR EMPLOYEES WHO MAY COME IN CONTACT WITH STUDENTS AND HAVE BEEN FINGERPRINTED AND BACKGROUND CHECKED EDUCATION CODE SECTION NAME OF EMPLOYEE/VOLUNTEER NAME OF EMPLOYER (IF NOT VENDOR) SCHOOL SITES (IF KNOWN)