This Agreement is entered into by and between the San Diego Unified School District, a public school district existing in the State of California having its principal business office located at 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as “District”) and BRG Consulting, Inc., a California corporation, located at 000 Xxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000 (hereinafter referred to as “Consultant”) and sometimes collectively referred to as the “Parties.”
WHEREAS, District desires to hire a person or entity specially trained and experienced in environmental engineering services with respect to the California Environmental Quality Act (CEQA) pursuant to completion of various projects to be assigned by District during the term of this Agreement; and
WHEREAS, California Government Code Section 4525, et seq., grants the District the authority to contract with and employ persons for the furnishing of architectural, landscape architectural, engineering, environmental, and land surveying services to District if such persons are specially trained, experienced, and competent to perform the special services requested; and
WHEREAS, Consultant is appropriately licensed in the State of California, and is otherwise qualified to render professional services to District in completion of said projects;
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed between the Parties as follows:
1. SCOPE OF WORK
1.1. Consultant will perform all professional services District requests. District shall identify requested services by issuing written notices to proceed, hereinafter referred to as “NTPs”. The NTP, once issued, is considered a part of this Agreement. Each NTP shall specify the scope of services to be performed by the Consultant, the schedule for work to be performed and the amount authorized to be expended for each portion of work. Work undertaken by the Consultant or its subconsultants without written authorization is done at the Consultant’s risk. Each NTP may be modified by written amendment.
1.2. Typical services shall include, but not be limited to, coordination of California Environmental Quality Act (CEQA) documents. This will include, but not be limited to, the preparation of Negative Declarations and Environmental Impact Reports, and may, also, involve the preparation of technical reports (e.g. traffic reports, air quality reports, etc.).
2.1. Total compensation shall not exceed One Million & 00/100 Dollars ($1,000,000) during the term of the Agreement.
2.2. District shall determine, at its sole discretion, the method of consideration for each portion of work requested. Methods of consideration will be either lump sum fixed fee, or hourly fee with a maximum approved total based on the hourly rates identified in the following paragraph. If District selects lump-sum fixed fee consideration, the scope of work, the schedule, and the proposed lump sum fixed fee shall be presented to the Consultant for review and acceptance or rejection. If the District selects time and materials not-to-exceed fee consideration, then Consultant shall prepare a proposal for services for the portion of work to be done, according to the schedule provided by the District, specifying the price for the services up to a maximum not-to-exceed amount agreed to by District and Consultant. District may elect to accept Consultant’s proposal as a lump-sum fee. At District's option, Consultant may be obligated to perform these services at the price proposed by the Consultant up to the stated maximum. Not-to-exceed fixed fee proposals shall remain in effect for three months from the date of submission. Once the District accepts such a proposal by a written NTP specifying the acceptance of the proposal for that portion of work, all work outlined within the proposal shall be completed by the Consultant within the schedule identified for no more than the not-to-exceed value stated. District will make no payments to Consultant which exceeds the amount specified in the NTP for each portion of work.
2.3. When Consultant is providing services on an hourly fee basis, Consultant shall be compensated for the performance of its obligations according to the fee schedule attached hereto as Exhibit “A” and incorporated herein by reference. Additional expenses include:
Subconsultants, photo delivery services
To be paid at cost plus 10%.
To be paid at
Printing services shall be coordinated through the District’s printing services contract and paid by District unless otherwise stated in the NTP. If not coordinated through the District printing
services contract, Consultant shall be responsible for costs incurred.
There shall be no other reimbursable costs charged to District, unless otherwise stated in the NTP. This includes, but is not limited to printing/reproduction, travel, mileage, offices, photo services, shipping/delivery services,
telephone, facsimile, postage, food, and lodging.
In-house laboratory testing, geophysical equipment, and other special equipment
Provided at cost.
2.4. When Consultant is providing services under a lump sum fixed fee consideration, the compensation schedule by phase of work shall be determined jointly by the District and the Consultant and set forth in writing in the NTP. There shall be no other reimbursable costs charged to District unless specifically authorized in the NTP. This includes, but is not limited to printing/reproduction, mileage, photo services, delivery services, telephone, facsimile postage, food, and lodging.
3.1. NTPs may be issued during the period of October 10, 2012 through October 9, 2015, with an option to extend two years at District’s election. This Agreement shall not expire until all work under NTPs issued is completed, accepted, and paid for by District. All indemnification provisions contained in the Agreement shall survive beyond the expiration of this Agreement.
4.1. Consultant may invoice District each month Consultant's services are in progress. Such invoiced amounts shall be in direct arithmetic proportion to the amount of work completed by Consultant by the date of the invoice, and as approved by District. District will require Consultant to invoice using District’s invoice format. If multiple school sites are involved, Consultant shall invoice by site. Invoices must be typed on an original 8-1/2" x 11" sheet of paper, reference the Agreement number listed in the upper right hand corner of this document, the NTP number, and the title of the project. Invoices shall include a detailed breakdown of hours spent on each project in increments of 1/2 of an hour if work is being done on an hourly basis, and each task shall have its own description and record of time spent. District may require Consultant to invoice using a web-enabled product and Consultant shall provide its own web access at no charge to the District. District shall pay for any special software, other than a standard web browser if needed.
4.2. Original receipts, plus two copies, shall accompany all reimbursable items. Any reimbursable items must be preapproved by the District in writing. The District shall verify that all required services have been performed prior to approving any payment. Payment terms shall be Net 30 Days starting from the date of District’s approval of invoice for services and materials.
4.3. Invoices shall be submitted in duplicate and mailed to the following address, unless Consultant is instructed otherwise in the NTP:
San Diego Unified School District Physical Plant Operations
0000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxx Xxxxx, XX 00000-0000
Attn: Facilities Professional Services Contracts
4.4. Invoices submitted shall, at the request of the District, be accompanied by proof of periodic payments to all Consultant's consultants. In the event the Consultant fails to pay their subconsultants in a prompt manner and the non-payment results in a delay of work to the District, the District reserves the right to pay subconsultants directly and withhold those sums from the total amount due to Consultant. Any such action taken by District does not relieve Consultant of professional liability for any work provided.
4.5. District has the right to inspect the work of Consultant at any time during the regular working hours of Consultant upon District giving reasonable (48-hour) advance notice to Consultant. District shall have the right to examine and audit all Consultant records relating to this Agreement, including, but not limited to, payment records for subconsultants, deliverables,
schematics, design documents, as-builts, checklists, guide documents, by project manager(s), all books, estimates, records, contracts, and other such documents to confirm accuracy, completeness and currency of the cost, manpower, coordination, supervision or pricing data at no additional cost to the District. The Consultant shall make available at its office at all reasonable times during business hours, within seven days’ written notice from District, the materials described in this paragraph for the examination, audit or reproduction until three (3) years after final payment under this Agreement. Notwithstanding the provisions above, Consultant shall provide any records requested by any governmental agency, available, after the time set forth above.
4.6. Consultant understands and agrees that District has the right to review project documents and work in progress and to audit financial and other records pertaining to the performance of the work under the Agreement, whether such records were prepared by Consultant, its subconsultants or anyone else associated with the work. In addition, District shall have the right to audit Consultant’s records supporting the invoices submitted including payroll records and time sheets. Accounting records must be maintained in accordance with generally accepted accounting practices. The accounting system will be organized in such a manner as to provide direct and indirect cost information.
4.7. Consultant is aware that presentation of a claim (any request or demand for money, property, or services) to the District is subject to the False Claims Act under Government Code section 12650, et seq. Violation of the False Claims Act include treble damages, $10,000 per each false claim, possible referral to the District Attorney for criminal prosecution (Penal Code section 72), and attorney’s fees and costs of the District. If the District’s audit reasonably concludes that Consultant has falsely presented a claim, and Consultant is unable to rebut same, Consultant, in addition to reimbursement to the District of those amounts, shall pay for the District’s costs, which includes, but is not limited to, auditor’s fees, consulting fees, attorney’s fees, District staff time, and reasonable costs incurred by the District. The District's right to reimbursement under this paragraph shall be in addition to any other rights reserved to the District under this Agreement as well as equity and law.
4.8. All Agreements between Consultant and subconsultants shall require the subconsultant to comply with the above requirements concerning their records.
4.9. Neither the District’s review, approval of, nor payment for, any of the services required under this Agreement shall be construed as a waiver of any rights under this Agreement, and Consultant shall remain liable to the District in accordance with this Agreement for all damages to the District caused by Consultant’s failure to perform any of the services furnished under this Agreement to the standard of care as stated in this Agreement.
5. PREVAILING WAGE REQUIREMENTS
5.1. Prevailing wage and labor compliance requirements currently apply to work performed on or around future or current district public works sites and generally do not apply to design professionals working away from the public works site. Work performed during the design and preconstruction phases of construction, including but not limited to, inspection, land surveying work, and soils and materials testing are generally considered public works subject to prevailing wage requirements. Applicability of this section is controlled by law. Consultant shall comply with this section to the extent it applies to the work Consultant
performs either directly or through its subconsultants or subcontractors. For the purposes of this section the term “Contractor” shall refer to Consultant and the terms “subcontractor” and “specialty subcontractor” of any tier, shall refer to the Consultant’s subconsultant(s). Applicable work throughout this section is work that is performed on a future or current District public works site. The project, for purposes of this section, shall mean the work authorized by NTPs under this Agreement.
5.2. State of California prevailing wage requirements apply to public works projects of one thousand dollars or more and maintenance projects of one thousand dollars or more.
5.3. Pursuant to the provisions of Articles 1 and 2 of Chapter 1, Part 7, Division II, of the Labor Code of the State of California (Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations), Title 8, California Code of Regulations, Chapter 8, Subchapter 3, commencing with Section 16000, for any “public works” (as that term is defined in the statutes), there shall be paid to each Worker of the Contractor, or any Subcontractor, of any tier, engaged in the Work, not less than the general prevailing wage rate, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the work contemplated under this Contract regardless of any contractual relationship which may be alleged to exist between the Contractor or any Subcontractor, of any tier, and such Worker. For purpose of compliance with prevailing wage law, the Contractor shall comply with provisions applicable to an awarding body. Compliance with state prevailing wage law includes without limitation: payment of at least prevailing wage as applicable; overtime and working hour requirements; apprenticeship obligations; payroll recordkeeping requirements; and other obligations as required by law.
5.3.1. Title 8 of §16000 of California Code of Regulations states, “The date the first notice inviting bids was published in a newspaper of general circulation or promulgated in a legally sufficient manner which results in a contract being awarded with or without competitive bidding. This may also be referred to as the Bid Advertisement Date.” Consultant agrees that this means the prevailing wage at the time of the Bid Advertisement or Request for Proposal/Qualifications of this contract is effective for that contract term, subject to a single or double asterisks. (See below for explanation). Any subsequent renewal, i.e., Board action or other legally sufficient manner that results in a contract being awarded with or without competitive bidding, means that the prevailing wage at the time of renewal, not time of advertisement of original contract, is effective for the term of that subsequent amendment, subject to a single or double asterisks. (See below for explanation.)
5.3.2. Title 8 of §16204, subdivision (b) of California Code of Regulations states, “Modification of Effective Date of Determination by Asterisks, Meaning of Single and Double Asterisks. Prevailing wage determinations with a single asterisk (*) after the expiration date, which are in effect on the date of advertisement for bids, remain in effect for the life of the project. Prevailing wage determinations with double asterisks (**) after the expiration date indicate that the basic hourly wage rate, overtime and holiday pay rates, and employer payments to be paid for work performed after this date have been predetermined. If work is to extend past this date, the new rate must be paid and should be
incorporated in contracts entered into now. The contractor should contact the Prevailing Wage Unit, DLSR, or the awarding body to obtain predetermined wage changes. All determinations that do not have double asterisks (**) after the expiration date remain in effect for the life of the project.” The regulations are subject to change and those changes are incorporated by reference at the time they are effective.
5.4. Copies of the prevailing rate of per diem wages applicable to this Project are on file at the District’s office, and shall be made available to any interested party on request; or may be found on the Internet at: xxxx://xxx.xxx.xx.xxx/XXXX/XXX. The Contractor shall post at appropriate conspicuous weatherproof points on the site of the Project a schedule showing the Prevailing Wage Determinations published by the Director of the California Department of Industrial Relations, which are applicable to the Project.
5.5. Contractor is responsible for ascertaining and complying with all current general prevailing wage rates for crafts and any rate changes that occur during the life of the contract; and shall ensure that the above requirements are included in all its contracts and any layer of subcontracts for activities for the Project.
5.6. Contractor shall certify to the District on each Payment Request Form, that prevailing wages were paid to eligible workers who provided labor for work covered by the payment request and that the Contractor and all Subcontractors complied with prevailing wage laws. Prior to the release of any retained funds under this Agreement, the Contractor shall submit to the District a certificate signed by the Contractor and all subcontractors performing public works activities stating that prevailing wages were paid as required by law.
5.7. Failure to comply with prevailing wage laws and/or failure to employ apprentices as required by law shall subject Contractor and/or its Subcontractors to penalties, including forfeitures and debarment under Labor Code Sections 1775; 1776; 1777.1; 1777.7 and 1813. Contractor shall be jointly and severally liable for the payment of prevailing wages and any amounts due pursuant to a final order under Labor Code section 1743.
5.8. Nothing contained herein shall be deemed to supersede any applicable laws, orders or regulations issued by competent authority governing wages, hours of Work of the employment of labor, nor to condone any violation of such laws, orders or regulations.
5.9. Payroll Records
5.9.1. As required by Labor Code section 1700 et seq, (including but not limited to Labor Code sections 1776 and 1812), and Title 8 of California Code of Regulations, the Contractor and every Subcontractor, of any tier, shall keep accurate payroll records, showing the name, address, social security number, Work classification, straight time and overtime hours Worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, Worker or other employee employed by them in connection with the Work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating that the information contained in the payroll record is true and correct and that the Contractor or Subcontractor has complied
with the requirements of Sections 1771, 1811, and 1815 for any work performed by its employees on the public works project.
5.9.2. The payroll records enumerated under Paragraph 5.9.1 shall be certified and shall be available for inspection at all reasonable hours at the principal office of the Contractor. A certified copy of employee’s payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative upon request.
5.9.3. Upon request by the District, the Division of Labor Standards Enforcement, or the Division of Apprenticeship Standards of the Department of Industrial Relations., the payroll records of the Contractor, and every Subcontractor, of any tier, shall be available for inspection at all reasonable hours at the principal office of the Contractor or furnished to DIR, within 10 days of receipt of a written request. Failure to comply shall result in applicable penalties.
5.10. Cooperation And Withholding Of Contract Payments
5.10.1. The Contractor, and every Subcontractor, of any tier, shall cooperate with the DIR, the Labor Commissioner, or DLSE in any investigation of suspected prevailing wage violations. The District shall likewise cooperate and shall withhold contract payments in accordance with any lawful order by DLSE
5.11. Hours Of Work
5.11.1. As required by Labor Code section 1700 et seq, (including but not limited to Labor Code section 1810), and Title 8 of California Code of Regulations, eight
(8) hours of labor shall constitute a legal day’s Work. Under Labor Code section 1811, the time of service of any Worker employed at any time by the Contractor or by a Subcontractor, of any tier, upon the Work or upon any part of the Work, is limited and restricted to eight (8) hours during any one calendar day and forty
(40) hours during any one calendar week, except as hereafter provided. Notwithstanding the foregoing provisions, under Labor Code section 1815, Work performed by employees of Contractor or any Subcontractor, of any tier, in excess of 8 hours per day and 40 hours during any one week, shall be permitted upon compensation for all hours Worked in excess of 8 hours per day or 40 hours per week at not less than one and one-half (1½) times the basic rate of pay. Failure to comply with any of the foregoing shall result in applicable penalties.
5.11.2. Any Work performed by Workers necessary to be performed after regular Working hours or on Sundays or other holidays shall be performed without adjustment to the Contract Price or any other additional expense to the District.
5.12.1. It is the duty of the Contractor and Subcontractors of any tier to employ registered apprentices on the public works project and to comply with all aspects of Labor Code Section 1777.5, relating to Apprentices on Public Works. (1)
Notify approved apprenticeship programs of contract award; (2) employ apprentices; (3) pay training fund contributions.
5.12.2. Under Labor Code section 1777.5(e) the Contractor and all Subcontractors, of any tier, shall notify an approved training program that can supply apprentices to the area of the Public Works Project. All apprentices employed by the Contractor to perform any of the Work shall be paid the prevailing wages identified by the DIR Only apprentices, as defined in Labor Code section 3077 who are in training under apprenticeship standards and written apprenticeship Agreements under Labor Code sections 3070, et seq. are eligible to be employed for the Work. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice Agreements under which such apprentice is training or the Standards established by the Division of Apprenticeship Standards.
5.12.3. As required by Labor Code section 1700 et seq, (including but not limited to Labor Code sections 1777.5), and Title 8 of California Code of Regulations, the Contractor and any Subcontractor, of any tier, in performing any of the Work employs Workers in any Apprenticeable Craft or Trade the Contractor and such Subcontractor shall apply to the Joint Apprenticeship Committee administering the apprenticeship standards of the craft or trade in the area of the site of the Work for a certificate approving the Contractor or such Subcontractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected; provided, however, that the approval as established by the Joint Apprenticeship Committee or Committees shall be subject to the approval of the Administrator of the Division of Apprenticeship Standards. The Joint Apprenticeship Committee or Committees, subsequent to approving the Contractor or Subcontractor, shall arrange for the dispatch of apprentices to the Contractor or such Subcontractor in order to comply with Labor Code section 1777.5. The Contractor and Subcontractors shall submit contract award information to the applicable Joint Apprenticeship Committee, which shall include an estimate of journeyman hours to be performed under the Contract, the number of apprentices to be employed, and the approximate dates the apprentices will be employed.
5.12.4. The ratio of Work performed by apprentices to journeymen, who shall be employed in the Work, may be the ratio stipulated in the apprenticeship standards under which the Joint Apprenticeship Committee operates, but in no case shall the ratio be less than one hour (1) of apprentice Work for each five (5) hours of labor performed by a journeyman, except as otherwise provided in Labor Code section 1777.5. Any ratio shall apply during any day or portion of a day when any journeyman or the higher standard stipulated by the Joint Apprenticeship Committee, is employed at the site of the Work and shall be computed on the basis of the hours Worked during the day by journeymen so employed, except for the land surveyor classification. The Contractor shall employ apprentices for the number of hours computed as above before the completion of the Work. The Contractor shall, however, endeavor, to the greatest extent possible, to employ apprentices during the same time period that the journeymen in the same craft or trade are employed at the site of the Work. Where an hourly apprenticeship ratio
is not feasible for a particular craft or trade, the Division of Apprenticeship Standards, upon application of a Joint Apprenticeship Committee, may order a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification. This Article shall not apply to Contracts of general Contractors, or to Contracts of specialty Contractors not bidding for Work through a general or prime Contractor, involving less than Thirty Thousand Dollars ($30,000).
5.12.5. The Contractor or any Subcontractor, of any tier, who performs any of the Work by employment of journeymen or apprentices in any Apprenticeable Craft or Trade and who is not contributing to a fund or funds to administer and conduct the apprenticeship program in any such craft or trade in the area of the site of the Work, to which fund or funds other Contractors in the area of the site of the Work are contributing, shall contribute to the fund or funds in each craft or trade in which it employs journeymen or apprentices in the same amount or upon the same basis and in the same manner as the other Contractors do, but where the trust fund administrators are unable to accept such funds, Contractors not signatory to the trust Agreement shall pay a like amount to the California Apprenticeship Council. The Contractors shall provide proof of such contributions when requested, including checks, check stubs, receipts, or other records required to prove that all required payments were made.
5.12.6. Failure to knowingly comply with any of the foregoing shall result in applicable penalties and in addition, upon determination by the Chief of Division of Apprenticeship Standards under Labor Code section 1777.7, the Contractor may be denied the right to bid on any public Works Contract for a period of one (1) year from the date the determination of non-compliance for the first violation and for a period of up to three years for a second or subsequent violation.
6. INDEPENDENT CONTRACTOR
6.1. Consultant is, for all purposes arising under this Agreement, an independent contractor. Nothing in this Agreement is intended nor shall be construed to create an employer-employee relationship, a joint venture relationship, or to allow District to exercise discretion or control over the professional manner in which the Consultant performs the services which are the subject matter of this Agreement; provided always, however, that the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. No officer, agent or employee of Consultant or District shall be deemed an officer, agent or employee of the other party hereto. Neither Consultant nor District, nor any officer, agent or employee thereof shall be entitled to any benefits to which employees of the other party hereto are entitled, including, but not limited to overtime, retirement benefits, workers' compensation benefits, and injury leave or other leave benefits.
7.1. If Consultant fails to perform any of Consultant’s duties to the satisfaction of the District, or if Consultant fails to fulfill in a timely and professional manner any of Consultant’s obligations under this Agreement, or if Consultant violates any of the terms or provisions of this Agreement, the District shall have the right to terminate this Agreement effective
immediately upon District giving written notice thereof to the Consultant. District shall also have the right in its sole discretion to terminate this Agreement or any NTP issued under this Agreement for its own convenience by written notice to Consultant. Notice is deemed given when sent. In the event of such termination, Consultant shall only be paid for professional services rendered up to the date of such termination, less any back charges or deducts in exchange for full written waiver and release.. The District's right to terminate under this paragraph shall be in addition to any other rights reserved to the District under this Agreement. Said termination shall not be deemed to be a breach of this Agreement and/or tortious conduct. Termination shall have no effect upon any of the rights and obligations of the Parties arising out of any transaction occurring prior to the effective date of such termination.
7.2. Architect shall obtain District’s written approval of any and all subconsultants prior to retaining subconsultants at the commencement of the project. If a subconsultant fails to perform to the satisfaction of the District, the District reserves the right to request Architect to remove and replace such subconsultant with a satisfactory replacement within a reasonable period of time upon written notice from District.
7.3. Architect shall also obtain District’s written approval of any and all Architect project managers prior to retaining Architect project managers at the commencement of the project. If an Architect project manager fails to perform to the satisfaction of the District, the District reserves the right to request Architect to remove and replace such Architect project manager with a satisfactory replacement within a reasonable period of time upon written notice from District.
8. AMENDMENT OF AGREEMENT
8.1. This Agreement cannot be modified, changed or revised, except by a written amendment executed by both Parties. Any amendment hereto shall be in writing and shall set forth the date of the public Board of Education meeting at which the Board of Education of District approved such amendment.
8.2. No waiver of any right pursuant hereto or waiver of any breach hereof shall be effective unless in writing and signed by the party waiving such right or breach. No waiver of any right or waiver of breach shall constitute a waiver of any other or similar right or breach, and no failure to enforce any right hereunder shall preclude or affect the later enforcement of such right.
9. SUCCESSORS AND ASSIGNS
9.1. All terms, conditions, and provisions hereof shall inure to and shall bind the Parties hereto, their respective heirs, administrators, executors, successors, and assigns. Neither Consultant nor District shall assign this Agreement or any monies due or to become due hereunder without the other party’s prior written consent. Any assignment without prior written approval of the non-assigning party shall be cause for termination of this Agreement at the option of the non-assigning party.
10.1. To the furthest extent permitted by California law, Consultant shall defend, indemnify, and hold free and harmless the District, its agents, representatives, officers, consultants, employees, trustees, and volunteers (“the Indemnified Parties”) from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity (“Claim”), which arise out of or are in any way connected to the work covered by this Agreement arising either directly or indirectly from, and only to the extent caused by, any negligence, recklessness, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants, or agents directly or indirectly arising out of, connected with, or resulting from the performance of the services, the project, or this Agreement, including without limitation the payment of all consequential damages, payable to third parties.
10.2. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Indemnified Parties in any Claim. Consultant shall also reimburse District for the cost of any settlement paid by District arising out of any Claim, provided that Consultant has given prior written consent to such settlement, which consent shall not be withheld unreasonably. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Indemnified Parties, provided that any indemnity claim shall be reduced by any insurance proceeds actually received by the Indemnified Parties. District shall have the right to accept or reject any legal representation that Consultant proposes to defend the Indemnified Parties on the basis that such counsel has a conflict of interest, or, in the reasonable judgment of District, that such counsel is not capable of adequately defending the Claim. In the event District reasonably disapproves of Consultant’s proposed legal representation, and Consultant fails to provide reasonably satisfactory alternative representation, District may assume the defense of the Claim. In that event, Consultant shall reimburse the Indemnified Parties for any and all legal expenses and costs, including expert witness fees and consultant fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided to the extent caused by the above agreement to indemnify.
10.3. Consultant shall not be entitled to payment for additional work required to be performed as a result of Consultant’s intentional or negligent acts, or errors or omissions. District may withhold payments from Consultant in an amount sufficient to pay for any damages caused by such deficient performance. District will not exercise this right unreasonably.
10.4. District’s financial obligations under this Agreement shall be limited to the payment of the compensation provided in this Agreement. Notwithstanding any other provision of this Agreement, in no event shall District be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including, but not limited to, lost profits or revenue, arising out of or in connection with the Agreement for the services performed in connection with this Agreement.
10.5. Any and all costs incurred by District, or for which District may become liable, caused by negligent delays of Consultant in its performance hereunder, shall be paid to District by Consultant. Without waiving any other remedies, District may deduct such costs from any payments due to Consultant.
10.6. Except as otherwise provided in the Agreement, nothing in this Agreement shall limit any equitable indemnity rights that the Parties have under California law.
11. FINGERPRINTING REQUIREMENTS
11.1. The District has determined under Education Code section 45125.1, subdivision C that in performing services pursuant to this Agreement, Consultant employees or subconsultant employees may have contact with pupils. As required under Education Code section 45125.1, subdivision (a), Consultant shall require their employees or subconsultant employees who will provide services pursuant to this Agreement to submit their fingerprints in a manner authorized by the Department of Justice (DOJ) together with a fee determined by the DOJ in order to conduct a criminal background check to determine whether such employees have been convicted of or have charges pending for a felony as defined under Education Code section 45122.1.
11.2. Consultant shall not permit any employee or subconsultant’s employee to perform services who may come in contact with pupils under this Agreement until the DOJ has determined that the employee has not been convicted of a felony or has no criminal charges pending for a felony as defined in Education Code section 45122.1. Any costs associated with regulatory compliance shall be the sole responsibility of the Consultant or its subconsultants and shall not be reimbursed by the District.
11.3. Consultant shall certify in writing to the governing board of the District to the attention of the Contracts Office, Facilities Planning and Construction, Physical Plant Operations Center, 0000 Xxxxxxx Xxxxxx, Xxxx 0, Xxx Xxxxx, XX 00000-0000, that all of its employees or subconsultant employees who may come in contact with pupils have not been convicted of or have no criminal charges pending for a felony, as defined in Education Code section 45122.1.
11.4. In the event Consultant fails to comply with all of the requirements of Education Code section 45125.1 and injury results from such failure, Consultant shall defend, indemnify, protect and hold the District and its agents, officers and employees harmless from and against any and all claims, demands, liability, judgments, awards, losses, injury, damages, expenses, charges or costs of any kind or character whether to the District or to any person or property which arise from or are connected with or are caused or claimed to be caused by Consultant’s failure to comply with the requirements contained in Education Code section 45125.1, including, but not limited to, the requirement prohibiting Consultant from using employees or subconsultant employees who may have contact with pupils who have been convicted or have charges pending for a felony as defined in Education Code section 45122.1.
11.5. Any subconsultant hired by Consultant shall be subject to and shall comply with this provision. Consultant and subconsultant shall be jointly and severally liable for any injury that results from subconsultants’ failure to comply with this provision.
12. CONFLICT OF INTEREST
12.1. Consultant shall not make or participate in making or in any way attempt to use Consultant’s position to influence a District decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. Consultant represents that Consultant has diligently conducted a search and inventory of
Consultant’s financial interests and has determined that Consultant does not, to the best of Consultant’s knowledge, have a financial interest that would conflict with Consultant’s duties under this Agreement. Consultant will not have such interest during the term of this Agreement. Consultant will immediately advise the District if Consultant learns of a financial interest of Consultant’s during the term of this Agreement.
13.1. The Consultant retains all rights to all copyrights, designs and other intellectual property embodied in the plans, record drawings, specifications, estimates, and other documents that the Consultant or its consultants prepares or causes to be prepared pursuant to this Agreement.
13.2. This Agreement creates a non-exclusive and perpetual license for District to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents, or any other works of authorship fixed in any tangible medium of expression, including, but not limited to, physical drawings, data magnetically or otherwise recorded on computer disks, or other writings prepared or caused to be prepared by Consultant pursuant to this Agreement. This Agreement is an express transfer of rights.
13.3. Original drawings, all original engineering calculations, plans, specifications, renderings, models, masters, related material, and electronic copies of same and all copies resulting from this Agreement whether or not completed or supplied to District as herein required are the property of District, whether the work for which they are made be executed or not.
13.4. District master specification files derived from MASTERSPEC are provided for use only on District projects. MASTERSPEC text is protected by copyright and use on non-District projects by non-licensed users is strictly prohibited by law.
14.1. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, subconsultants, and its agents, representatives, or employees.
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).
2. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto).
3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
4. Professional Liability insurance appropriate to the Consultant’s profession.
Minimum Limits of Insurance
Consultant shall maintain limits no less than:
1. Commercial General Liability:
$2,000,000 per occurrence for bodily injury, personal injury and property damage including products-completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location (“per project” or “per location”) or the general aggregate limit shall be twice the required occurrence limit, $4,000,000.
2. Automobile Liability: $1,000,000 per accident Combined Single Limit Coverage
shall apply to any auto (Code 1) or if Consultant has no owned autos, hired (Code 8) and non-owned (Code 9).
3. Workers Compensation: Statutory.
a. Employer’s Liability: $1,000,000 per accident for bodiliy injury or disease.
4. Professional Liability: $2,000,000 per claim and aggregate.
Deductibles and Self-Insured Retentions
All deductibles and/or self-insured retentions in excess of $50,000 must be disclosed to and approved by the District’s Risk Manager at the time evidence of insurance is provided.
Other Insurance Provisions
The Commercial General Liability and Automobile Liability policies must be endorsed to contain, the following provisions:
1. The District, trustees for the Board of Education and, employees are to be named as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Consultant or automobiles owned, leased, hired or borrowed by the Consultant.
2. For any claims related to this Agreement, the Consultants’s insurance coverage shall be primary insurance with respect to the District, trustees for the Board of Education and employees. Any insurance or self-insurance maintained by the District, trustees for the Board of Education, and employees shall be excess of the Consultant’s insurance and shall not contribute with it.
3. Consultant shall be responsible for any and all losses arising out of the performance of this Agreement, but shall not be limited to, those tendered to the insurance company. All insurance shall be provided at the sole cost and expense of the firm.
4. The Certificates of Insurance and the insurance policies required by this Agreement shall
contain a provision that should any of the above-described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. If for any reason Consultant changes, or is compelled to change insurance companies before the expiration date during the term of this Agreement, Consultant shall give District thirty (30) days written notice of the proposed change (ten  days notice if cancellation is due to nonpayment of premium) and shall thereafter, but prior to the expiration of the policy, obtain full coverage from another such company and provide the District with a certificate evidencing said new coverage prior to the effective date thereof. In the event of lapse of coverage, District reserves the right to withhold any and all further payments due Consultant from date of lapse.
5. The Worker’s Compensation policy shall be endorsed with a waiver of subrogation in favor of the District for all work performed by the Consultant, its employees, agents, subcontractors and subconsultants. This endorsement shall be provided along with the Certificate of Insurance and all required endorsements prior to the commencement of work under this Agreement. The Consultant agrees to waive subrogation which any insurer of the firm may acquire from the Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation.
6. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured.
If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverages are written on a claims-made form:
1. The “Retro Date” must be shown, and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least ten (10) years after completion of the contract of work. Consultant may renew insurance coverage annually for the 10-year period.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a “Retro Date” prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.
4. A copy of the claims reporting requirements must be submitted to the District for review.
Acceptability of Insurers
Such insurance shall be provided by an admitted California insurance companies with current Best’s Key Ratings of A-VII or better. Exception may be made for the State Compensation Insurance Fund when not specifically rated. In the event coverage is provided by non-admitted surplus lines carriers, the insurer(s) must be included in the California List of Approved Surplus Lines Insurers (LASLI list) and otherwise meet all rating requirements subject to the approval of the District’s Risk Manager.
Verification of Coverage
Consultant shall furnish the District with original certificates and separate endorsements effecting coverage required by this clause. The separate endorsements should be on forms provided by the District or on other than the District’s forms provided those endorsements conform to District’s requirements. All certificates and endorsements are to be received and approved by the District before work commences. Consultant must provide proof of payment of all required insurance policies for one calendar year, as well as a true, correct copy of its current professional liability policy upon receipt of an executed Agreement from District prior to commencement of any work under this Agreement.
15.1. Except as otherwise expressly provided for in this Agreement, all notices which the District or the Consultant may be required, or may desire, to serve on the other, shall be effective only if delivered by personal delivery or by postage prepaid, First Class Certified Return Receipt Requested, United States Mail, addressed to the District or the Consultant at their respective addresses. Such notice shall be dated and signed by the party giving such notice or by a duly authorized representative of such party.
District: San Diego Unified School District Physical Plant Operations
0000 Xxxxxxxx Xxxx, Xxxxxxxx X Xxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000; Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Contracts Administration Supervisor
Consultant: BRG Consulting, Inc.
000 Xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000; Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, President
16. ENTIRE AGREEMENT AND ACKNOWLEDGEMENTS
16.1. This Agreement constitutes the entire and only Agreement between the Parties as to the work authorized and supersedes any prior Agreement, oral or written, with respect thereto. The Parties further agree that there are no understandings, agreements, or representations not specified in this Agreement and that in entering into this Agreement, no party is relying upon any understandings, agreements, or representations not expressly set forth herein.
16.2. Each party to this Agreement, by the execution of this Agreement, acknowledges that this Agreement was jointly prepared by the Parties hereto. The Parties hereto each agree and acknowledge that they have carefully reviewed this Agreement, that they understand its terms, that they have had legal advice with respect to this Agreement and have had an adequate opportunity to consult with legal counsel prior to executing this Agreement, and that they have executed this Agreement with full knowledge of its meaning and effect, and agrees to be bound by its terms and conditions. The Parties hereto further agree that they have relied wholly upon their own judgment and knowledge and have not been influenced to any extent
whatsoever in making this Agreement by any representations or statements made by any other party or anyone acting on behalf of any other party, except as expressly contained in this Agreement. The Parties expressly agree that no rule of construction or interpretation which would operate to construe any term of the Agreement against either party shall apply. The Parties to this Agreement hereby agree that the proper venue for any lawsuit or other proceeding arising out of the terms of this Agreement or any party's rights under this Agreement shall be San Diego County, California.
16.3. This Agreement shall be construed and interpreted according to the laws of the State of California. Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected by said illegal or invalid part, term, or provision, and said invalid part, term, or provision shall be deemed not to be a part of this Agreement.
16.4. The Parties agree to execute two (2) original Agreements and understand that District Board of Education approval is required.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by their fully authorized representatives.
BRG CONSULTING, INC., a California corporation SAN DIEGO UNIFIED SCHOOL DISTRICT
By: Xxxxxx X. Xxxxx, Xx.
Strategic Sourcing and Contracts Officer Date:
LEGALITY AND FORM APPROVED
Approved in public meeting of the Board of Education of the San Diego Unified School District on
Xxxxxx X.X. Xxxxx, Assistant General Counsel
San Diego Unified School District
Xxxxxx Xxxx, Board Action Officer Board of Education
The above Consultant is a Corporation. Federal Tax I.D. #
SCHEDULE OF HOURLY BILLING RATES
Hourly Rate Start Date of Agreement –
December 31, 2013
Hourly Rate January 1, 2014 -
December 31, 2014
Hourly Rate January 1, 2015 -
December 31, 2015
Senior Project Manager
Senior Environmental Planner
Environmental Specialist II
Environmental Specialist I
Environmental Specialist/Asst. Project Manager
Associate Environmental Analyst/Planner
Environmental Analyst/Planner III
Environmental Analyst/Planner II
Environmental Analyst/Planner I
Assistant Environmental Analyst/Planner
Technical Illustrator/ CAD Operator