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Form of Commissioning Agent Agreement Expansion Program to be used when entering into agreement with a consultant for certification of construction of facilities as LEED.
Leadership in Energy and Environmental Design (LEED) is a voluntary, consensus- based, market--driven program that provides third-party verification of green buildings. This Agreement is used when hiring a consultant to perform commissioning agent services in connection with a Leeds "green" construction project. This document in its draft form contains numerous of the standard clauses commonly used in these types of agreements, however, additional terms and conditions may be added, allowing for customization of the agreement to ensure the specific terms of the parties’ agreement are addressed. This document can be used when wanting to verify a that a particular building is "green." AGREEMENT FOR COMMISSIONING SERVICES AGREEMENT made as of _________ ____, 200__, BETWEEN "Owner/Client": [insert Owner/Client name and address] Telephone: Facsimile: Owner/Client Representative and the "Consultant": [insert Consultant name and address] Telephone: Facsimile: Consultant Representative: The "Program Manager" is: [insert PM name and address] Point of Contact: [insert] Telephone: Facsimile: The "Project" is: [describe Project and location] THIS AGREEMENT FOR COMMISSIONING SERVICES ("Agreement"), effective as of the date set forth above, is between Owner/Client and Consultant, collectively referred to herein as the “Parties”, who state and agree as follows: 1. Consultant. By way of a written request for qualifications ("RFQ"), a copy of which is attached to Exhibit A, Owner/Client requested that a firm or firms with the qualifications to meet the requirements of the RFQ submit proposals to provide services described in the RFQ. After evaluating the respondents, Owner/Client selected Consultant, and Owner/Client now wishes to retain Consultant to provide services to Owner/Client in connection with the Project. Consultant shall perform its services pursuant to this Agreement under the direction and management of Program Manager and for the benefit of Owner/Client. Consultant is an independent contractor and not an agent, servant or representative of Owner/Client or Program Manager. Consultant will have no authority legally to obligate Owner/Client except as specified in this Agreement or as otherwise specified in writing by Owner/Client from time to time. The "Consultant Representative" for purposes of this Agreement is designated above. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 1 2. Scope of Services; Work Authorizations. Exhibit A attached hereto contains the RFQ which, together with the other provisions set forth in Exhibit A, outlines the full range of services that Owner/Client might request from Consultant (the "Services"). However, Owner/Client will request particular Services from Consultant only on the basis of work authorizations mutually agreed by the Parties. This Agreement is intended as a master agreement that defines the basic commercial terms under which Consultant will provide services within the general scope outlined in Exhibit A and how Owner/Client will make payment for those services. The scope and pricing for each set of specific Services shall be agreed upon and set forth in a written work authorization for such specific Services. Consultant represents that the Services shall be carried out in a manner consistent with industry standards and good commercial practices, without negligent errors or omissions. 3. Time of Performance. The term for a particular set of Services shall be set forth in the applicable work authorization. Consultant shall commence its Services immediately upon receipt of a signed copy of this Agreement and a written work authorization and shall continue until the scope described in each work authorization is completed or until this Agreement is terminated. Consultant agrees to perform its Services continuously, diligently, and energetically, and to complete the Services in accordance with the Project schedule provided by Owner/Client. Time is of the essence of this Agreement. 4. Further Work. If, during the course of the Services, Consultant discovers any fact or condition which would lead Consultant to recommend further analysis, testing, evaluation or other services beyond the scope of the outstanding work authorizations, Consultant shall contact Owner/Client to discuss Consultant's findings and recommendations and give an estimate of the cost of such further work. Owner/Client may authorize Consultant to perform such additional work only by providing written direction to Consultant specifying the work to be performed and the maximum additional fee to be added to the amount authorized in the work authorization. Consultant shall not be responsible or liable for any costs, damages, claims or other consequences to the extent arising out of Owner/Client's decision not to accept Consultant's recommendation for further work. 5. Subconsultants; Employees. (a) Consultant shall not contract with or otherwise engage, employ or utilize any consultants, contractors, or other third Parties (any such, a "Subconsultant") in connection with any Services without Program Manager's prior written consent in each instance. Consultant shall furnish Owner/Client with a list of Subconsultants proposed to be used on the Project prior to commencing Services under a particular work authorization, and shall promptly notify Owner/Client of proposed changes to such list. Neither use of a Subconsultant by Consultant, nor Program Manager's consent thereto, shall relieve Consultant of its obligations under this Agreement. Consultant shall be responsible to Owner/Client for the acts and omissions of its employees and Subconsultants, and their agents and employees. The terms, conditions, and provisions of the Consultant's agreement with each Subconsultant shall be subject and subordinate to, and not inconsistent with, the terms, conditions and provisions of this Agreement. Nothing contained herein shall create any relationship of contract or agency between Owner/Client and any Subconsultant. Consultant's obligation to pay its Subconsultants is © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 independent from Owner/Client's obligation to pay Consultant for Services; Owner/Client shall have no obligation to pay or enforce payment to Subconsultants. For purposes of Consultant's obligations and responsibilities under this Agreement, reference to "Consultant" shall be deemed to bind every Subconsultant of any tier, unless the context specifically requires otherwise. (b) Each work authorization shall include a staffing plan from Consultant indicating the persons and corresponding titles who will perform the Services under such work authorization, together with an estimate of their hours allocated to the work authorization. Any changes to such staffing plan require advance notice to Program Manager. Consultant shall employ individuals for the Project to whom Owner/Client has no reasonable objection. In the event Owner/Client has a reasonable objection to any employee performing Services, it shall notify Consultant, which shall promptly cause the individual to be removed from the Project and replace same with an unobjectionable employee at no cost to Owner/Client. 6. Compensation; Documentation. Compensation for Consultant's performance of the Services shall be as set forth in Exhibit B and in the applicable work authorization, payable monthly in proportion to the Services performed within each phase (or subphase) of Services (if a work authorization provides for phases). Subject to amounts set forth in the work authorization, Consultant will be reimbursed for reasonable, necessary and out-of-pocket expenses (collectively, "Reimbursable Expenses"), which will be invoiced at direct cost, including but not limited to the following: (a) copying expenses, printing and plotting, and other office-related expenses; (b) long-distance telephone calls, faxes, and similar communication expenses; (c) postage, courier, and express mail costs; (d) out-of-town travel to and from Sacramento, including transportation and lodging and the per diem expenses referenced in the "Travel Policy" attached to Exhibit B; and (e) other expenses approved in writing by Program Manager prior to being incurred by Consultant. Travel expenses need to comply with the Travel Policy to be Reimbursable Expenses. Consultant shall bill Owner/Client monthly for Services performed and Reimbursable Expenses incurred. The bill shall itemize and describe the Services performed, identify personnel performing the Services and the time expended (for Services compensated on a time and expenses basis), and any Reimbursable Expenses, with appropriate documentation of all of the foregoing attached thereto. Prior to submitting invoices to Owner/Client, Consultant shall submit same to Program Manager for review. Within ten (10) calendar days after receipt of each such invoice, Program Manager shall verify the accuracy of the amounts shown on same, correct the value or values where appropriate, and notify Consultant of any changes or disagreements. Provided that Consultant delivers a properly completed, documented invoice to Program Manager, payment of undisputed amounts will be due twenty (20) days from Owner/Client's receipt of such invoice together with Program Manager's recommendation as to payment; if invoices are untimely, incomplete or improperly documented, then payment may be delayed until the thirtieth day after Program Manager receives a properly completed, documented invoice. Consultant agrees to provide any supporting documentation for each invoice which Program Manager or Owner/Client reasonably requests. If applicable and upon request, Consultant shall provide an executed statutory form of lien waiver and release with each invoice and upon receipt of final payment as a condition to payment. Any payment made hereunder prior to completion © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 and acceptance of the Services shall not be construed as evidence of acceptance of any part of Consultant's Services. For a period of four years following substantial completion of the Project, Consultant shall maintain full and accurate records and books of account necessary to document: (a) all activities undertaken by or on behalf of Consultant (including by its agents and Subconsultants) in the course of performing Services hereunder; and (b) all charges, expenses and disbursements incurred by Consultant, its agents or Subconsultants in performing Services hereunder. Consultant will promptly make such books and records available to Owner/Client during normal business hours upon prior written request. 7. Insurance. Exhibit C sets forth certain insurance requirements and is incorporated herein. However, Owner/Client is exploring the desirability of instituting a consolidated insurance program (“CIP”) for the Project in which Owner/Client and certain of its contracting parties would participate. If Owner/Client elects to institute a CIP and require Consultant's participation, the CIP will then define the terms and conditions of insurance coverage and would substitute for Exhibit C. To the extent that a CIP does not provide for certain insurance coverages necessary for the Project, the provisions of Exhibit C relating to such non-provided coverages shall apply. Consultant agrees that at all times during the life of this Agreement, it shall maintain at its own cost those insurance coverages required by this Agreement. 8. Indemnification. Consultant shall, with respect to all services which are covered by or incidental to this Agreement, indemnify, defend, and hold Owner/Client and Additional Indemnified Parties, as identified in Exhibit C, harmless from and against any and all claims, liability, loss, damage, costs or expenses, including reasonable attorneys' fees, awards, fines or judgments, resulting from death or bodily injury to persons, injury to property or other loss, damage or expense, but only to the extent caused by or arising from Consultant’s negligent provision of Services or willful misconduct. 9. Waiver of Consequential Damages. Neither Owner/Client nor Consultant shall be liable to the other for any consequential, indirect or special damages in connection with this Project. 10. Dispute Resolution. Unless otherwise agreed in writing by the Parties, no dispute shall interfere with the prompt performance of their respective obligations under this Agreement. Notwithstanding a dispute, Consultant shall continue to perform its Services, and Owner/Client shall continue to make payment of all undisputed amounts in accordance with the provisions of the Agreement. (a) In the event of a dispute regarding the scope of work or interpretation of this Agreement, or any other claims or controversy between Owner/Client and Consultant, the Parties agree to have their project representatives meet and attempt to resolve the disagreement as early and quickly as practicable. If the Parties’ project representatives are unable to resolve the dispute, either party may request a meeting of senior management representatives. Such meeting shall be commenced within seven (7) days after the meeting request for the express purpose of openly sharing information concerning the dispute and attempting in good faith to resolve the disagreement. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 (b) Any claims, disputes or controversies arising out of, or in relation to the interpretation, application or enforcement of this Agreement, and not resolved by the meetings described above, shall be submitted to non-binding mediation prior to the initiation of any suit or other litigation. The cost of the mediation shall be split equally between both Parties. This agreement to mediate shall be specifically enforceable under the laws of the State of ______________________. (c) If mediation is unsuccessful, then either party may commence legal proceedings. Any dispute between Owner/Client and Consultant pertaining to or arising out of or in connection with this Agreement or the Project shall be decided by litigation venued exclusively in a court with subject matter jurisdiction located in [Enter City, County, and State], or other mutually acceptable location. (d) The Parties agree that to the extent permitted by the contract documents, all third parties necessary to resolve a claim, dispute or controversy shall be parties to the same dispute resolution proceeding. To the extent disputes between Owner/Client and Consultant involve, in whole or in part, disputes between Owner/Client and any design professional or contractor, Owner/Client shall be entitled either to join Consultant in the proceeding commenced by or against the design professional or contractor or to a stay of any dispute resolution proceeding commenced by Consultant pending resolution of the claim with the design professional or contractor. Consultant shall specifically bind the Subconsultants to the terms of these dispute resolution provisions. 11. Default. If Consultant at any time refuses or fails to prosecute the Services in a proper or timely fashion, or is adjudicated a bankrupt, or files an arrangement proceeding, or commits any act of insolvency, or makes an assignment for the benefit of creditors without Owner/Client's written consent, or fails to make prompt payment to persons furnishing labor, equipment or materials, or becomes delinquent with respect to contributions or payments required to be made to any employee benefit program or trust, or otherwise fails to perform fully any and all of the agreements herein contained, Consultant shall be in default. If Consultant fails to cure the default within five (5) calendar days after written notice thereof, Owner/Client may, at its sole option, (a) provide any such labor, equipment and materials as may be necessary and deduct the cost thereof from any money then due or thereafter to become due to Consultant under this Agreement; or (b) terminate Consultant's right to proceed with the Services. If Owner/Client elects to terminate, Consultant will deliver to Owner/Client a complete set of the data, documents and materials previously prepared by Consultant reflecting the current state of preparation, together (if applicable) with a disc or discs containing the same and will use good faith efforts to cause an orderly transition to, and will cooperate with on a transitional basis, Owner/Client's new consulting firm (if any) for the Project engaged to provide similar services. In case of such default termination, Consultant shall not be entitled to receive any further payment under this Agreement until the Services are completely finished. At that time, if the unpaid balance of the amount to be paid under this Agreement exceeds the expenses incurred by Owner/Client in finishing the Services, such excess shall be paid by Owner/Client to Consultant; but, if such expense shall exceed such unpaid balance, then Consultant shall promptly pay to Owner/Client the difference. The expense referred to in the last sentence shall include expenses incurred by Owner/Client for furnishing materials, for finishing the Services, for reasonable attorneys' fees, for additional program management or project management expense, and for any damages © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 sustained by Owner/Client by reason of Consultant's default, plus a markup of 5% general overhead on any and all of such expenses. If it is determined by litigation, arbitration or otherwise that a termination by Owner/Client for default was unjustified hereunder, the termination shall be deemed a termination for convenience under Section 13 below and Consultant shall be limited to the remedies in Section 13. 12. Termination for Convenience. Owner/Client shall have the right to terminate this Agreement at any time in its sole discretion and with or without cause, by written notice to Consultant. Consultant shall stop work immediately upon receipt of a notice of termination and promptly deliver to Owner/Client the results of the Services to the date of termination. Owner/Client will compensate Consultant for Services performed prior to termination; if Owner/Client elects to terminate this Agreement for its convenience and without cause, Owner/Client will also reimburse Consultant for documented, reasonable and necessary out-of- pocket costs actually incurred by Consultant in connection with termination, provided that the total of all of the foregoing shall not exceed the total compensation provided under all outstanding work authorizations. Consultant shall not be entitled to any payment for so-called "lost profit". This right to terminate shall be in addition to, and not in lieu of, any other rights and remedies Owner/Client may have at law or in equity. 13. Intellectual Property. To the extent Consultant is preparing data, documents or materials which may be subject to copyright or other intellectual property rights, Owner/Client shall own such data, documents and materials and is granted those rights whether the Project is completed or not, and all work product shall be delivered to Owner/Client on the earlier of (i) the substantial completion of the Services in a work authorization, or (ii) the date of termination of this Agreement. Consultant shall be deemed to have assigned any intellectual property rights (including copyrights) in such data, documents and materials to Owner/Client. However, Consultant may retain a copy of its work product for its files and may revise portions thereof for other projects, provided that it not disclose any confidential information. 14. Notices. All notices required or permitted by this Agreement shall be in writing and may be accomplished either by personal delivery, first-class regular mail of the United States Post Office, express delivery by a reputable national carrier, or facsimile transmission with confirmation of transmission, sent to the party at the address or facsimile number shown in this Agreement. The written notice shall be effective on the date of receipt. 15. Governing Law; State Required Terms and Conditions. This Agreement shall be governed by and construed under the laws of the State of [Insert Name of State]. The State Required Terms and Conditions attached as Exhibit D (to the extent applicable to the Services) are incorporated by reference. Consultant shall perform the Services in full compliance with such terms and any other applicable federal, state and local laws and regulations in effect at the time the Services are rendered. Also, Consultant will need to comply with any Owner/Client requirements governing access to a site that is operated by Owner/Client. 16. No Third Party Obligations. Nothing contained in the Agreement shall be deemed to create a contractual relationship with, or create a cause of action in favor of, any third party against Consultant or Owner/Client. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 17. Prevailing Party Costs. If either party commences any legal proceedings under or related to this Agreement or the Services, including but not limited to proceedings in arbitration or any state, federal or bankruptcy court, the prevailing party shall be entitled to recover its attorneys’ fees, expert witness’ fees, and all costs of suit, whether or not otherwise recoverable under the Code of Civil Procedure or the Federal Rules of Civil Procedure. 18. Entire Agreement; Modification; Waiver. The exhibits attached to this Agreement are incorporated herein. This Agreement, including its exhibits, constitutes the entire agreement of the Parties and supersedes any and all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter hereof. No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by both Parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 19. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns. Consultant shall not be entitled to assign or delegate any of its rights or obligations hereunder without the prior written consent of Owner/Client. 20. Savings Clause. If any provision of this Agreement, or any part thereof, shall be held to be invalid under any applicable federal, state, municipal or other law, ruling or regulation, then such provision shall remain in effect to the extent permitted, and the remaining provisions of this Agreement shall remain in full force and effect. 21. Execution. By their signature below, each of the following represent that they have authority to execute this Agreement and to bind the party on whose behalf their execution is made. This Agreement may be signed in counterparts, each complete set of which shall constitute an original. [Owner/Client] [Consultant] By (Signature) By (Signature) Printed Name: Printed Name: Title: Title: © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 EXHIBIT A SCOPE OF SERVICES The general scope of Services are described in the Request for [Qualifications] [Proposals] dated ________ ____, 20__ (attached hereto) and below. The specific scope of Consultant's Services shall be negotiated and defined in individual work authorizations. The Project to be constructed is required to achieve a minimum of a "silver" rating from the U.S. Green Building Council's Leadership in Energy and Environmental Design rating program ("LEED"). Owner/Client has concluded that traditional design and construction delivery models are unlikely to meet its goals for speed, cost, quality and innovation. Thus, Owner/Client intends to engage integrated project delivery teams to deliver all or the major portion of the Project using integrated project delivery teams and innovative waste-minimization techniques in an effort to avoid the typical outcomes of traditional delivery models, in which design takes too long, wasteful back-and-forth occurs between designer and constructor, issues of constructability, sustainability, lifecycle cost, operational efficiency, patient and employee safety are inadequately addressed, and the project fails to keep pace with important changes in the medical and correctional environments. When and to the extent authorized in a work authorization, Consultant shall perform the following: 1. Provide all services and expertise required to systemically ensure that all systems and equipment specified by Owner/Client perform interactively according to the approved construction documents and other Owner/Client requirements. 2. Provide all services and expertise required to satisfy the commissioning requirements of the applicable LEED program for a designated building. Unless Owner/Client specifically provides otherwise in a work authorization, the LEED commissioning requirements includes only fundamental commissioning requirements. 3. Work closely and collaboratively with the integrated project delivery team(s) chosen by Owner/Client to deliver facilities under an integrated project delivery ("IPD") approach. To this end, Consultant will consult with and provide support to the IPD teams (as a consultant to Owner/Client) with respect to the commissioning of designated facilities during all phases of design and construction. Consultant shall recommend how best (in terms of cost and quality) to achieve the goals of LEED Silver (minimum), lowest operating costs and best return on investment (in cooperation with URS/BLL, IPD teams and Owner/Client) for various building systems and processes. For any projects not delivered under an IPD approach, Consultant shall work closely and collaboratively with the contractors and design professionals engaged by Owner/Client for such projects as more fully set forth in a particular work authorization. Exhibit A – Scope of Services Page 8 4. Consultant's interaction with the selected IPD team(s) will be more continuous and collaborative than in traditional delivery methods, where commissioning agents are asked to review design documents only at set milestones, with subsequent re-design by the design team for design aspects that fail to comply with appropriate commissioning standards. Under Owner/Client's IPD approach, the design proceeds with continuous input from Consultant, and not by progressing the design to a certain stage of development and then requesting that the Consultant review the design only at particular milestones. For projects delivered under an IPD approach, Consultant will provide its commissioning services continuously throughout development of the design by providing on-going commissioning guidance. 5. Develop a comprehensive "Commissioning Plan" for each building that addresses roles, responsibilities, LEED requirements, documentation, acceptance criteria, scheduling and commissioning activities. 6. Consistent with the Commissioning Plan, develop a comprehensive "Commissioning Specification" for each particular project that sets forth the responsibilities of contractors and subcontractors for, among other things, commissioning-related inspections, start- ups, testing, documentation and satisfying acceptance criteria. 7. Review relevant submittals, requests for information, field reports and change orders for any impact on commissioning and advise Program Manager of any impacts. 8. Conduct, coordinate and document commissioning coordination meetings with project participants. 9. Perform site visits as necessary to observe installation of systems and components which will be commissioned, designated tests and start-up activities, all in accordance with the approved Commissioning Plan. Consultant will need to comply with any Owner/Client requirements governing access to a site that is operated by Owner/Client. 10. Review and comment on proposed operations and maintenance manuals submitted by constructors for the systems to be commissioned. 11. Observing the functional performance tests for each system to be commissioned in accordance with the Commissioning Specifications, and tracking and reporting to Program Manager and Owner/Client any failed tests, start-ups or other commissioning issues and their subsequent resolution. 12. Assist the relevant design professional(s) in preparing and completing LEED documentation and submittals for LEED certification, including addressing audit questions from USGBC. 13. To the extent provided in the Commissioning Plan, provide or assist with operator training sessions for various building systems to be commissioned. 14. Prepare and deliver to Owner/Client a "Commissioning Report" in compliance with LEED requirements and the Commissioning Plan. 15. Consistent with the Commissioning Plan, make visits to a completed building during the warranty period to review systems & equipment operations and discuss building Exhibit A – Scope of Services Page 9 operations with facility staff. Advise Owner/Client and Program Manager as to how to best address any issues raised during such visits. Exhibit A – Scope of Services Page 10 EXHIBIT B COMPENSATION [Instruction: Describe what terms for compensation are agreed upon generally (e.g., hourly rates, markup for profit and overhead), and what will be set forth in a work authorization (e.g., not-to-exceed or lump sum amounts, staff utilized for work authorization)] Exhibit B - Compensation Page 11 TRAVEL POLICY 1.5.6 TRAVEL PROCEDURES 22.214.171.124 Travel Authorization Form Travel which can be billed to the Owner/Client, such as a trip related to recruiting a senior level individual, must be authorized by a Deputy Program Manager, prior to the first increment of travel occurring. Use the Travel Authorization Form provided as Attachment 1.5-D. Travel which is not billable to Owner/Client, but chargeable to the Project, must also be authorized by a Deputy Program Manager. Normal travel by existing team members on routine Owner/Client business do not need advance authorization by a Deputy Program Manager. 126.96.36.199 Lodging Request the current negotiated federal rate when making reservations. See Attachment 1.5- A. If unable to secure the negotiated federal rate, attempt to book lodging at a facility offering as close to the federal rate as possible. However, if the actual lodging cost exceeds the federal rate, the excess is not billable to the Program. Lodging receipts must be provided showing the expense was actually incurred, not just booked or reserved. Show each day’s lodging expenses separately. Separate billable from non-billable (in excess of per diem) lodging expenses. Show lodging tax separately for each day. Tax is fully billable, and is additional to the Federal Max Lodging Rate, regardless of amount. 188.8.131.52 Meals and Incidental Expenses Individual Meals – Meal receipts are not required for individual meals when on travel status. You may claim actual meal costs, up to the appropriate per diem limit as indicated on the Meals and Incidental Expense (MI&E) rate sheet. Alcohol is not reimbursable. Even though receipts do not need to be submitted, maintain itemized individual meal receipts to support a potential future audit which may be held to determine whether the full per diem amount is warranted. Do not submit individual meal expenses or per diem for a meal when a Group Meal was provided. Group Meals – Itemized meal receipts are required for group meals. Alcohol is not reimbursable. For group meals, you must include the following: Exhibit B - Compensation Page 12 Itemized receipt List of attendees showing affiliations Meal expense cost limits per person apply. That is, aggregate cost of the group meal cannot exceed the per diem times the number of attendees. Certain meals are reimbursable that are not travel-related. Meals brought into an office to facilitate the continuity of a business meeting are reimbursable, providing you include the following in the expense report: Itemized receipt Indicate the purpose of the business meeting List of attendees showing affiliations Meal expense cost limits per person apply. That is, aggregate cost of the group meal cannot exceed the per diem times the number of attendees. Incidental Expenses - Incidental expenses are generally personal goods such as toothpaste. These expenses are included in the federal M&IE rate. Alcohol is not reimbursable. 184.108.40.206 Mileage The current IRS rate for business use of a personal vehicle is reimbursable and billable. It can be found at http://www.irs.gov. The rate is subject to annual adjustment. Mileage between an employee’s main residence and the employee’s local project office is not reimbursable. Mileage for business use of a personal vehicle to another work location is reimbursable and billable only to the extent that the total daily mileage exceeds the employee’s normal daily personal vehicle mileage to their local office. The least-cost travel alternative should always be considered before deciding to use a personal vehicle. Rental cars with unlimited mileage are frequently less expensive than the use of a personal vehicle. 220.127.116.11 Airfare Travel shall be via the most economical mode in terms of direct expense and time away from the office. When it is necessary to fly on Owner/Client business, employees will follow their employer’s normal travel procedure, which normally includes prior written approval by their supervisor for the specific purpose and duration of the trip. When advance planning for air travel is possible, flights shall be booked sufficiently in advance of the departure date to take advantage of reduced pricing. First class flights are not reimbursable from Owner/Client. Coach class is appropriate for all Owner/Client travel. Proof of airline expense must be provided in the employee’s expense report. This proof shall be in the form of a boarding pass or other document showing that the travel actually occurred, not just that the reservation was made. Receipts from third party travel vendors Exhibit B - Compensation Page 13 such as Expedia or Travelocity are not acceptable forms of proof, therefore, because they don’t prove that travel actually occurred. 18.104.22.168 Separate Expenses Separate expenses for the Owner/Client Program from other expenses. That is, do not include non-Program expenses on the same expense report. Expense reports must be reviewed and approved by an appropriate person in the submitting firm, according to the firm’s normal business practices, prior to submittal for reimbursement. Expense reports which are submitted without the reviewer’s signature will be returned without further review. 22.214.171.124 Expense Reports Travel expenses are documented, approved and reimbursed through expense reports. Each firm working on the Owner/Client Program has a different expense report form. A sample of one firm’s form is included as Attachment 1.5-C. Employees will follow their own firm’s procedures for filling out and submitting the form. Attachment 1.5-A - Federal GSA Domestic Per Diem Rates dated 10-18-07 Attachment 1.5-B - Federal GSA Frequently Asked Questions dated 10-18-07 Attachment 1.5-C - Example Expense Report Form dated 4-30-08, 1 page Attachment 1.5-D - Travel Authorization Form dated 4-30-08, 1 page Exhibit B - Compensation Page 14 Attachment 1.5-A – Federal GSA Domestic Per Diem Rates [insert current Federal GSA Domestic Per Diem Rates www.irs.gov ] Exhibit B - Compensation Page 15 Attachment 1.5-B – Federal GSA Frequently Asked Questions [insert current Federal GSA Frequently Asked Questions www.irw.gov ] Exhibit B - Compensation Page 16 Owner/Client Project Attachment 1.5-C EXAMPLE EXPENSE REPORT FORM Employee Name: John Doe Emp No 1 Company A Project Name: Owner/Client Project Proj No 999 Destination: Anywhere USA Dates 2/25-3/04/08 Per- Auto Airline Hotel Hotel Diem Miscellaneous N N N Date Gas Rental Park Mi 0.505 Ticket o o Taxes /Meals o Amount Notes/Description 2/25 67 $33.84 285.00 219.00 30.66 59.00 1 Sacramento, CA 5.00 2 Parking - Capital Bldg 3 2/29 $0.00 219.00 30.66 59.00 4 Monterey, CA (Site visit) 5 6 7 3/1 $0.00 219.00 30.66 59.00 8 9 10 11 3/2 $0.00 109.00 13.08 59.00 12 328.00 13 Team dinner (non Reimb) 14 15 3/3 $0.00 109.00 13.08 59.00 16 17 18 19 3/4 302.43 52.50 17 59.00 20 $8.59 21 Airport to Office 35.00 22 Airport Parking 23 24 Total $0.00 $302.43 $92.50 $42.43 $285.00 $875.00 $118.14 $682.00 $0.00 Total Acct 1201 $437.36 1202 1203 1204 1205 1206 Reimbursable to Business Expenses Total $2,069.50 Non Reimbursable Business Expenses Total $328.00 Total Reimbursable Business Expenses $2,397.50 Exhibit B - Compensation Page 17 Attachment 1.5-D TRAVEL AUTHORIZATION FORM # ___________________ 1 Name of person traveling: __________________________________________________ 2 Name of person requesting authorization: ______________________________ _______________________________ Signature Date 3 Purpose of this trip: ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 4 Dates travel will occur: _______________________ and ___________________________ 5 Is travel billable to Owner/Client? Yes, provide WA or WO number ______________________________ No, charge to project overhead 6 Approval: __________________________________ _______________________ Deputy Program Manager Date 7 Distribution after approval and prior to travel occurring Accounting Manager Document Control Deputy Program Manager approving form Exhibit B - Compensation Page 18 EXHIBIT C INSURANCE [Instruction: Have insurance coverages reviewed by insurance advisor in connection with a particular project – this is a sample for California only] A. Prior to Consultant commencing performance of Services, and continuing for a period of at least three (3) years following completion of Consultant's Services, Consultant shall, at its sole cost and expense, carry and maintain the following insurance coverages with insurers with an A.M. Best rating of not less than A, VII, and reasonably acceptable to Owner/Client: .1 Workers' Compensation; Employer's Liability. Workers' compensation insurance as required by law and covering all work places involved in this Agreement. Employer's liability insurance with minimum limits of: Bodily injury by accident: $1,000,000 each accident Bodily injury by disease: $1,000,000 policy limit Bodily injury by disease: $1,000,000 each employee The workers compensation policy shall be endorsed to include coverage for USL&H benefits if the Consultant’s employees work in or about navigable waterways. .2 Commercial General Liability. Commercial general liability insurance written on ISO form CG 00 01 12 04 or an equivalent form and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and liability assumed under an insured contract including the tort liability of another assumed in a business contract, with limits of not less than: Each occurrence: $1,000,000 Products and completed operations aggregate limit: $1,000,000 Personal and advertising injury limit: $1,000,000 General aggregate limit (applicable per-project): $1,000,000 Such policy shall not exclude coverage for explosion, collapse or underground hazards. .3 Automobile. Commercial Automobile Liability insurance coverage shall be written on ISO form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or an equivalent form and shall apply to any auto including owned, hired, and nonowned autos in the sum not less than $1,000,000 per accident. Exhibit C - Insurance Page 19 .4 Umbrella Liability. Umbrella liability insurance shall be at least as broad as the underlying coverage, including but not limited to completed operations and contractual liability, and shall be written on an occurrence basis in excess of the underlying policies described in paragraphs .2 and .3 above in an amount not less than: Each occurrence: $2,000,000 Aggregate: $2,000,000 .5 Professional Liability. Professional Liability Insurance with limits of liability in amounts not less than $2,000,000 per claim and $2,000,000 aggregate, insuring Consultant and all persons for whose acts Consultant may be liable, against any and all liabilities arising out of or in connection with the negligent acts, errors or omissions of any of the foregoing in connection with the carrying out of their professional responsibilities for the Project. The services provided under this Agreement shall not be excluded from coverage under such policy and the retroactive date on such policy shall be prior to the first date upon which Consultant provided services under this Agreement. Such professional liability policy shall contain no contractual liability exclusion or limitation. B. No policy shall have a deductible of more than $50,000 in respect to any single occurrence. Except for professional liability, all policies shall be maintained on an "occurrence" basis. C. The "Additional Indemnified Parties" are Owner/Client, Program Manager, and each of their officers, directors, venturers, parents, affiliates, subsidiaries and agents, and all shareholders, officers, directors, employees and managers of same. Contractual liability insurance coverage (commercial general, umbrella, and auto liability) required to be maintained and furnished hereunder by Consultant shall include coverage in respect to the indemnification provision set forth in Section 9 of the Agreement. (If necessary, the auto policy shall be endorsed to provide contractual liability coverage equivalent to that provided in the 1990 and later editions of CA 00 01). D. Owner/Client and Program Manager (and any other party identified as an Additional Indemnified Party) shall be named as additional insureds under all insurance coverages required hereunder (except workers compensation and professional liability). The additional insured endorsement on the commercial general liability policy shall include both “on-going operations” and liability arising from “your work/completed operations” (the equivalent of ISO additional insured endorsement ISO CG 20 10 10 01 and ISO CG 20 37 10 01 (both are required). E. Consultant shall, before commencing the Services and thereafter from time to time promptly upon request of Owner/Client, deliver to Owner/Client certificates of insurance, including copies of applicable policy endorsements, indicating that Consultant is in compliance with the insurance requirements set forth herein. F. Owner/Client shall be notified in writing at least thirty (30) days prior to the effective date of any cancellation (except 10 days if cancellation is due to non-payment of premium) of or reduction in limits in any required insurance coverages. The words “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives” shall be deleted from the certificate of insurance form’s cancellation provision. Exhibit C - Insurance Page 20 G. Consultant's insurance (with the exception of workers compensation and professional liability) shall be primary, with any insurance maintained by an additional insured party being non-contributory. Each policy of liability insurance (except professional liability) shall include a waiver of any rights of subrogation by the insurer against Owner/Client and all additional insured parties and shall be endorsed to recite the name of the Project and the location of the Project Site. If the Consultant' liability policies do not contain the standard ISO separation of insureds condition, or a substantially similar clause, they shall be endorsed to provide cross-liability coverage. G. Owner/Client shall have the right to approve the form and content of Consultant's insurance policies. Owner/Client reserves the right to periodically review Consultant's insurance policies and coverages and require changes to such policies to the extent that said insurance is relevant to this Agreement. Any additional premiums or other associated costs for such changes shall be at Owner/Client's expense. H. Failure of Owner/Client to demand a certificate of insurance or other evidence of full compliance with these insurance requirements or failure of Owner/Client to identify a deficiency from evidence that is provided shall not be construed as a waiver of the Consultant’s obligation to maintain such insurance. I. Failure to maintain the required insurance may result in termination of this contract at Owner/Client’s option. If the Consultant fails to maintain the insurance as set forth herein, Owner/Client shall have the right, but not the obligation, to purchase said insurance at Consultant’s expense. J. By requiring insurance herein, Owner/Client does not represent that coverage and limits will necessarily be adequate to protect Consultant, and such coverage and limits shall not be deemed as a limitation on Consultant’s liability under the indemnities granted to Owner/Client in this Agreement. Exhibit C - Insurance Page 21 EXHIBIT D STATE REQUIRED TERMS AND CONDITIONS [INSTRUCTION: THESE SAMPLE TERMS ARE VALID IN CALIFORNIA ONLY, AND ARE USED FOR DEMONSTRATION PURPOSES ONLY] 1. AUDIT: Consultant agrees that the [insert name of Owner/Client] (“Owner/Client”), or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Consultant agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Consultant agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Consultant agrees to include a similar right of Owner/Client to audit records and interview staff in any subconsultant agreement related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896.) 2. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full, and Consultant hereby certifies that it has, unless exempted, complied with theses nondiscrimination program requirements. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. Consultant shall include the nondiscrimination and compliance provisions of this clause in all subconsultant agreements to perform work under the Agreement. 3. ANTITRUST CLAIMS: The Consultant agrees that if this Agreement was awarded by means of a competitive bid, the Consultant shall comply with the requirements of the Government Codes Sections set out below. a. For the purpose of this Section 3: 1) “Public purchase” means a purchase by means of competitive bids of goods, services, or materials by Owner/Client or the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. Exhibit C - Insurance Page 22 2) “Public purchasing body” means Owner/Client or the State or the subdivision or agency making a public purchase. (Government Code Section 4550.) b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. (Government Code Section 4552.) c. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. (Government Code Section 4553.) d. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. (See Government Code Section 4554.) 4. CHILD SUPPORT COMPLIANCE ACT: If this Agreement is in excess of $100,000, Consultant acknowledges in accordance with Public Contract Code 7110, that: a) Consultant recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and b) Consultant, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 5. PRIORITY HIRING CONSIDERATIONS: If this Agreement includes services in excess of $200,000, Consultant shall give priority consideration in filling vacancies in positions funded by the Agreement to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub. Contract Code §10353. Exhibit C - Insurance Page 23 6. DRUG-FREE WORKPLACE REQUIREMENTS: Consultant will comply with the requirements of the Drug-Free Workplace Act of 1990 and will provide a drug-free workplace by taking the following actions: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations. b. Establish a Drug-Free Awareness Program to inform employees about: 1) the dangers of drug abuse in the workplace; 2) the person’s or organization's policy of maintaining a drug-free workplace; 3) any available counseling, rehabilitation and employee assistance programs; and, 4) penalties that may be imposed upon employees for drug abuse violations. c. Every employee who works on the proposed Agreement will: 1) receive a copy of the company's drug-free workplace policy statement; and, 2) agree to abide by the terms of the company's statement as a condition of employment on the Agreement. Failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both and Consultant may be ineligible for award of any future Owner/Client or State agreements if Owner/Client or the State determine that any of the following has occurred: Consultant has made false certification, or violated the certification by failing to carry out the requirements as noted above. (Gov. Code §8350 et seq.) 7. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: Consultant certifies that no more than one (1) final unappealable finding of contempt of court by a Federal court has been issued against Consultant within the immediately preceding two-year period because of Consultant’s failure to comply with an order of a Federal court, which orders Consultant to comply with an order of the National Labor Relations Board. (Pub. Contract Code §10296.) (Not applicable to public entities.) 8. DOMESTIC PARTNERS: For contracts over $100,000, Consultant certifies that Consultant is in compliance with Public Contract Code Section 10295.3. 9. CONFLICT OF INTEREST/STATE OFFICERS OR EMPLOYEES: Consultant acknowledges its awareness of the following provisions regarding current or former state employees: a. No state officer or employee may engage in any employment, activity or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any state agency, unless the employment, activity or enterprise is required as a condition of regular state employment. (Pub. Contract Code § 10410.) Exhibit C - Insurance Page 24 b. No state officer or employee may contract on his or her own behalf as an independent Consultant with any state agency to provide goods or services. (Pub. Contract Code § 10410.) c. For the two-year period from the date he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-making process relevant to the contract while employed in any capacity by any state agency. (Pub. Contract Code §10411.) d. For the twelve-month period from the date he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in a policy-making position in the same general subject area as the proposed contract within the 12-month period prior to his or her leaving state service. (Pub. Contract Code §10411.) 10. LABOR CODE/WORKERS' COMPENSATION: Consultant acknowledges its awareness of the provisions which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with law, and Consultant agrees to comply with such provisions before commencing the performance of the work of this Agreement. (Labor Code Section 3700.) Prior to performing any work, Consultant shall sign and file the certification required by Labor Code Section 1861. 11. AMERICANS WITH DISABILITIES ACT: Consultant certifies that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) 12. AIR OR WATER POLLUTION VIOLATION: Consultant agrees that it shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to a cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. 13. TRENCHING: If the Contract Price exceeds $25,000 and involves the excavation of any trench(es) five feet or more in depth, the Consultant shall submit to Owner/Client or its designated engineer, in advance of excavation, a detailed plan showing design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer. (Labor Code Sections 6705.) 14. OTHER REQUIRED LABOR CODE CITATIONS: a. Prevailing Wages; Certified Payrolls. The project is subject to State prevailing wage and certified payroll requirements, and Consultant shall comply with the requirements of Labor Code Sections 1774 through 1776. Consultant shall pay not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. Exhibit C - Insurance Page 25 Copies of the prevailing rate of per diem wages are on file at the principal office of the Program Manager (on behalf of Owner/Client) and shall be made available to any interested party upon request. b. Eight Hour Work Day. In accordance with the provisions of Labor Code Section 1810, eight (8) hours of labor shall constitute a legal day's work upon all work done hereunder, and Consultant and any subcontractor or subconsultant employed under this Agreement shall conform to and be bound by the provisions of Labor Code Sections 1810 through 1815. c. Apprentices. Consultant and its subcontractors and subconsultants shall comply with the requirements of Labor Code Section 1777.5 regarding employment of apprentices on the project. d. Recitations in Subcontracts. In its subcontracts, Consultant shall be required to recite the following provisions of the Labor Code: Sections 1771, 1775, 1776, 1777.5, and 1815. Exhibit C - Insurance Page 26
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