PROFESSIONAL SERVICES CONSULTING AGREEMENT THIS PROFESSIONAL SERVICES CONSULTING AGREEMENT ( Agreement ) is made and entered into on the Effective Date, as hereinafter defined, by and between ( Consultant ), and Clear Creek Independent School District ( Owner ), for provision of [General Environmental, Asbestos, and Lead] Services to the project (the Project ). NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged and the receipt of which shall be acknowledged by endorsement thereof, the parties do hereby agree as follows: 1. Services to be Performed by Consultant The terms of this Agreement incorporate by reference the provisions stated in the Proposal attached hereto as Exhibit A to this Agreement ( Proposal ). Consultant shall perform the services described in the Proposal (the Services ) according to the standards of his profession. If the Consultant, without prior written notice thereof to the Owner, performs any Services with knowledge that such Services violate any applicable law, statute, ordinance, building code, rule or regulation, or if the Consultant, in the exercise of its professional judgment, should have known or discovered such violation, the Consultant shall be responsible for the performance thereof and for the full cost of correcting the same. The Consultant shall perform all Services in accordance with the terms set forth in this Agreement and Exhibits A and B (attached hereto and incorporated herein by reference), and perform any actions reasonably inferable from this Agreement and Exhibits A and B, as a whole, as being necessary or desirable to produce the intended result contemplated herein and in Exhibits A and B. 2. Compensation In consideration of the Services performed by Consultant under this Agreement, Owner shall pay to Consultant an amount, not to exceed the total lump sum of (the Not-to-exceed Lump Sum ). In no event shall the total amount due to Consultant pursuant to this Agreement exceed the Not-toexceed Lump Sum. Amounts due to Consultant shall be invoiced by Consultant as set forth in Section 15, below, and shall be based on work performed by Consultant, as set forth in Exhibit A. Reimbursable expenses, if applicable, and provided they are approved in advanced by Owner in writing, shall be compensated at the rate and manner set forth in Exhibit A. Consultant shall submit appropriate invoices for payment by Owner of reimbursable expenses, accompanied by supporting documentation acceptable to the Owner. Any additional services (the Additional Services ), if approved in advance by Owner in writing, shall be compensated at the rate and manner set forth in Exhibit A. 3. Time of Completion Consultant shall complete the work within the time limits set forth in Exhibit A, on or before [if applicable], and in accordance with the Architect s or Contractor s project schedule. By entering into this Agreement, the Consultant confirms that the time limits for the performance of its Services under this Agreement are reasonable for the proper execution thereof. 4. Relationship of the Parties It is understood and agreed that Consultant is an independent contractor and neither Consultant nor any employees, volunteers, or agents contracted by Consultant shall be deemed for any purposes to be employees, volunteers or agents of Owner. Consultant shall assume full responsibility for the action of such employees, volunteers, or 1
agents while performing any services incident to this Agreement, and shall remain solely responsible for their supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), workers compensation, disability benefits and like requirements and obligations. 5. No Waiver of Immunity Owner does not waive or relinquish any immunity or defense on behalf of itself, its trustees, officers, employees, and agents as a result of its execution of this Agreement and performance of the functions or obligations described herein. 6. Insurance and Indemnity Consultant agrees to procure and maintain professional liability insurance in accordance with Owner s requirements, as set forth in Exhibit C, attached hereto and incorporates to this Agreement by reference. Prior to performing any Services hereunder, Consultant shall provide the Owner with certificates of insurance evidencing such policies. Consultant agrees to indemnify and hold harmless Owner, its trustees and employees against any and all losses, costs, expenses and liabilities, including but not limited to reasonable attorneys fees and court costs, to the extent they arise out of Consultant s negligent acts or omissions. Only to the extent allowed by law, Owner agrees to indemnify and hold harmless Consultant and its direct employees against any and all losses, costs, expenses and liabilities, including but not limited to reasonable attorneys fees and court costs, to the extent they arise out of Owner s negligent acts or omissions. 7. Compliance with Laws Consultant shall maintain any and all applicable license(s) and certification(s) necessary to perform any Services contemplated by this Agreement. Consultant shall observe and comply with all Federal, State, County and local laws, and Owner s Board Policies that in any manner affect the provision of Services and performance of all obligations undertaken pursuant to this Agreement. Under no circumstances shall Consultant or any of its employees, sub consultants, representatives or agents bring any illegal drugs, alcohol or tobacco products or any firearms or other dangerous weapons onto the Owner s property, whether on their person or in their vehicles. If applicable to the Services, Consultant must certify, on forms provided by the Owner, that for each employee of Consultant who (1) will have direct contact with students (substantial opportunity for verbal or physical interaction with students that is not supervised by a certified educator or other professional District employee), and (2) will have continuing duties related to the performance of the Services, the Consultant has obtained, as required by Texas Education Code Section 22.0834 and Texas Administrative Code Section 153.1101 and 153.1117: (a) National criminal history record information from a law enforcement or criminal justice agency for each employee of Proposed hired before January 1, 2008; and (b) National criminal history record information from the Texas Department of Public Safety for each employee of Proposer hired on or after January 2, 2008. Consultant will also be required to obtain from each and every subcontractor, sub consultant or independent contractor the form of certification, relating to the employees of such subcontractors, sub consultants and independent contractors. All Consultant, Sub consultant and Subcontractor forms must be submitted prior to the commencement of work by the Consultant or the applicable subcontractor/sub consultant/independent contractor, who will have direct 2
contact with students, must not have been convicted of an offense identified in Texas Education Code Section 22.085, or any higher standard established by the Owner. 8. Authorization of Agreement Each party represents and warrants to the other that execution of this Agreement has been duly authorized, and that this Agreement constitutes a valid and enforceable obligation of such party according to its terms. 9. No Waiver No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting with regard to any breach of any provision shall be construed to be a waiver of such breach. 10. Notices Any notice required or permitted to be given under this Agreement shall be in writing, and shall be deemed to have been given when delivered by hand delivery, or when deposited in the United States Post Office, by registered or certified mail, postage prepaid, return receipt requested, if mailed. Notices shall be addressed as follows: If to Consultant: If to Owner: Clear Creek Independent School District Facilities & Planning Department Attn: Paul Miller Director of Facility Services PO Box 799 League City, TX 77574-0799 Any party may designate a different address by giving the other party ten (10) days written notice in the manner provided above. 11. No Assignment No assignment of this Agreement, or any duty or obligation of performance hereunder, shall be made in whole or in part by either party without the prior written consent of the other party. 12. Amendments This Agreement may be amended or modified by, and only by, a written instrument approved by the Owner in accordance with Owner s Board Policy. 13. Termination Owner may terminate this Agreement with or without cause upon seven (7) days written notice to Consultant. Consultant shall be entitled to compensation for all approved Services provided up to the effective date of termination based on the applicable rates and Services provided for in Exhibit A. 14. Ownership of Documents - The Owner shall be deemed the sole and exclusive owner of all common law, statutory and other reserved rights in all drawings, specifications, reports, and 3
other documents and data (including, but not limited to, those in electronic form) prepared by the Consultant or any of the other providers of services for the Project (all said drawings, specifications, reports and other documents and data being referred to herein collectively as the Documents ), including copyright and other protective rights applicable to the work product of the Consultant or such other provider of the Services, or any services for the Project. The Consultant and any other provider of any services for the Project shall provide all necessary documentation to transfer ownership of the Documents to the Owner and agrees, upon request of the Owner, to join in the execution of any additional documentation deemed necessary by the Owner to vest in the Owner all the rights and privileges of a copyright holder in and of the Documents. Without limiting any of the foregoing, the Owner shall have the right to freely photograph or videograph all or any part of the Project and to use the likenesses of the Project in any way, including iconography and other building emblems, and derivative works thereof. Upon completion of the Services to be provided by Consultant hereunder, and prior to the final payment therefor, the Consultant shall deliver to the Owner, a complete set of all Documents produced by the Consultant or any other consultant or any sub consultant engaged by Consultant in the performance of its Services under this Agreement, in electronic format, satisfying the requirements of the CCISD Electronic Documents Guideline attached as Exhibit E hereto, as well as the requirements set forth in Exhibit B. 15. Invoices - In consideration of Consultant performing the Services and obligations pursuant to this Agreement, the Owner will pay the Consultant as described in Section 2, above, and Exhibit A. Additional Services, if any, shall be compensated at the rate and manner set forth in the Proposal, and shall be subject to the prior written approval of Owner. Consultant shall submit to the Owner, for its approval, a written invoice, or request for payment for each scheduled payment, accompanied by a description of the Services performed, the persons performing the same, the time devoted thereto and the billing rate (if applicable), pursuant to Exhibit A, from Consultant, as well as any additional information as required in Exhibit D (attached hereto and incorporated herein by reference), all in the format described in Exhibit D (collectively, the Invoice Requirements ). Consultant shall not submit a request for payment more frequently than once in any thirty (30) day period. Any request by the Consultant for reimbursement of expenses shall be subject to the prior written approval of Owner, and shall be supported by documentation acceptable to the Owner. All reimbursements must comply with the Clear Creek Independent School District Policy and guidelines and will be reimbursed at cost. If any aspect of the Services or expenses under a request for payment is found by the Owner to be unsatisfactory or not in compliance with the provisions of this Agreement, the Owner may make proper withholding from the request for payment with respect thereto and the Owner shall not be considered in default under this Agreement as a result thereof. The Owner will pay Consultant any undisputed amount within thirty (30) days after receipt of a properly formatted and accurate invoice for such amount, including all of the Invoice Requirements set forth above. In the event of a dispute regarding any invoiced amount, the Owner will pay any undisputed portion while the parties negotiate in good faith to resolve the remaining issues. Invoices should be sent to: Clear Creek Independent School District Facilities & Planning Department Attn: Paul Miller Director of Facility Services 2145 West NASA Boulevard Webster, TX 77598 4
16. Site Conditions - The Owner agrees to provide Consultant with all relevant information in its possession relating to the project site, as applicable, such as previous surveys, soils reports, and/or environmental reports. If unanticipated hazardous materials or biological pollutants are encountered, Consultant may demobilize its field operations pending consultation with Consultant s safety coordinator, and will resume operations upon Owner s acceptance of proposed safety measures and fee adjustments, if any. 17. Section Headings The headings of sections contained in this Agreement are for convenience only, and they shall not, expressly or by implication, limit, define, extend or construe the terms or provisions of the sections of this Agreement. 18. Governing Law This Agreement is made in Texas and shall be construed, interpreted, and governed by Texas law. The parties shall consent to the jurisdiction and venue of the courts of Galveston County, Texas, for any action under this Agreement. 19. Duplicate Originals This Agreement is executed in two (2) counterparts, each of which shall have the full force and effect of the original Agreement, and each of which shall constitute but one and the same instrument. 20. Complete Understanding This Agreement and all Exhibits, Supplements and Amendments thereto shall constitute the complete understanding of Consultant and Owner. This Agreement constitutes the sole and only agreement of the parties to it and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this Agreement. Any terms, conditions or limitations of warranty/liability contained in Consultant's Proposal are not included, and are hereby expressly excluded from this Agreement unless such terms, conditions or limitations are restated in the main body of this Agreement. The appearance of such matters in any Exhibit to this Agreement is ineffective, as the inclusion of Consultant's proposal is intended to only provide information relating to the scope, deliverables, deadlines and fees relating to Consultant's Services. 21. Effective Date The Effective Date of this Agreement shall be, the date that all necessary and authorized representatives of Owner have endorsed the same. CONSULTANT Signature Name and Title CLEAR CREEK INDEPENDENT SCHOOL DISTRICT Signature Greg Cruthirds, Director of Purchasing Attachments: Exhibit A Proposal Exhibit B - Additional Scope of Services Requirements for Specific Consultant: Exhibit C Insurance Requirements Exhibit D Invoice Format Exhibit E Electronics Document Guidelines 5
EXHIBIT A PROPOSA 1
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