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This is an agreement between a client and an architect for design services. This agreement sets forth the rights and responsibilities of each party. In addition, this agreement contains exhibits that can be customized to ensure that the understandings of the parties are properly set forth. These customizable exhibits include: the scope of services to be performed, compensation rates, insurance, and state required terms and conditions. This agreement can be used by architects, property owners, or property management companies that want to enter into an agreement for design services.
This is an agreement between a client and an architect for design services. This agreement sets forth the rights and responsibilities of each party. In addition, this agreement contains exhibits that can be customized to ensure that the understandings of the parties are properly set forth. These customizable exhibits include: the scope of services to be performed, compensation rates, insurance, and state required terms and conditions. This agreement can be used by architects, property owners, or property management companies that want to enter into an agreement for design services. DESIGN PROFESSIONAL SERVICES AGREEMENT (Short Form) AGREEMENT made as of _________ ____, 200__, BETWEEN "Owner/Client": [insert Owner/Client name and address] Telephone: Facsimile: and the "Design Professional": [insert Design Professional name and address] Telephone: Facsimile: The "Program Manager" is: [insert Program Manager name and address] Point of Contact: [insert] Telephone: Facsimile: The "Project" is: [describe Project] THIS DESIGN PROFESSIONAL SERVICES AGREEMENT ("Agreement"), effective as of the date set forth above, is between Owner/Client and Design Professional, who state and agree as follows: 1. Owner/Client; Design Professional. Owner/Client engaged Program Manager to manage certain of Owner/Client's capital projects. Owner/Client now wishes to retain Design Professional to provide services to Owner/Client in connection with the Project. Design Professional shall perform its services pursuant to this Agreement under the direction and management of Program Manager and for the benefit of Owner/Client. Design Professional is an independent contractor and not an agent, servant or representative of Owner/Client or Program Manager. Design Professional 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. 2. Scope of Services. Design Professional accepts the relationship of trust and confidence established between Owner/Client and Design Professional by this Agreement. Design Professional covenants with Owner/Client to furnish Design Professional's best skill and judgment and to cooperate with Program Manager and any contractor or other design professional also employed by Owner/Client in connection with the Project. Design Professional agrees to use its best efforts and to perform the Services in a manner at least equal to highest industry standards and good commercial practices, without negligence, errors or omissions, and in the most expeditious and economical manner consistent with the interests of Owner/Client. Exhibit A attached hereto contains the scope of the services to be performed by Design Professional under this Agreement (the "Services"). Owner/Client recognizes that any cost estimates supplied by Design Professional are professional opinions, and that Design Professional cannot control the actual bids or costs supplied by the contractors for performing the construction. 3. Changes; Additional Services; Disputes. Owner/Client, without invalidating this Agreement, may order changes in the Services, consisting of additions, deletions, or other revisions to the scope of Services (any such additions, "Additional Services"). In event of such change, Design © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 1 Professional's compensation and time for performing the Services shall be adjusted accordingly, as more particularly set forth below. All such changes in the Services, including changes in compensation and time for performing the Services, shall be authorized only by written orders signed by Owner/Client. Any Additional Services will be separately compensated at a mutually agreed lump sum fee or, failing agreement as to compensation therefor, at the hourly rates set forth in Exhibit B; provided, however, that completion of tasks that are necessary in connection with the completion of the Scope of Services under this Agreement shall not be considered Additional Services, whether or not they are specifically identified on Exhibit A. Further, making revisions in any drawings, specifications or other deliverables under this Agreement shall not constitute Additional Services when such revisions: (a) are requested before Owner/Client has finally approved the applicable phase of drawings, specifications or other deliverables unless such revisions are inconsistent with a prior written directive or approval of Owner/Client; (b) are required by reason of Design Professional's fault, inaccuracy, error or negligence; (c) are required by reason of a change that is not substantial; or (d) are initiated by Design Professional as a result of Design Professional's reevaluation of a previous design judgment, or which are minor or ministerial in nature. For purposes of (c) above, a revision is "substantial" if it requires 2 or more hours of the Design Professional's staff time. If Design Professional claims that performance of any work requested by Owner/Client entitles it to additional compensation or to an extension of the time for performance, Design Professional shall provide written notice to Program Manager of any such claim prior to undertaking such work. If Owner/Client refuses to issue an order for such work, Design Professional shall perform that work and shall submit a complete and specific claim for additional compensation or extension of the time for performance within 20 days after such work is performed. Failure to provide written notice of claim prior to undertaking such work, or failure to timely submit a complete and specific claim for additional compensation or extension of the time for performance, shall be deemed a waiver and abandonment of any such claim. No claim, dispute or controversy of any kind shall interfere with the progress or performance of the Services (including any Additional Services), and Design Professional shall proceed with the Services (including any Additional Services) as directed by Owner/Client, provided Owner/Client continues to pay any undisputed amounts in accordance with this Agreement. Failure to so proceed shall amount to a default under section 10 below. 4. Owner/Client's Responsibilities; Program Manager. To the extent applicable to the Services, Owner/Client shall furnish accurate base maps and reference plans that will show existing grades, road alignments, paved widths, building locations, utilities and easement locations, and other data in the possession of Owner/Client and requested by Design Professional. Services and information, and all documents furnished by Owner/Client or others retained by Owner/Client shall be provided at Owner/Client’s expense. Owner/Client makes no warranty as to the accuracy of any documents furnished to Design Professional, but agrees that Design Professional shall be entitled to rely, based upon its exercise of due care and caution, on the accuracy and completeness thereof. Owner/Client has designated Program Manager as its representative to act on its behalf with respect to the Project. Design Professional agrees that it shall render and furnish to Program Manager the services and materials to which Owner/Client is entitled under this Agreement, at the times when Owner/Client is entitled to the same. Program Manager shall examine the documents submitted by Design Professional and shall render decisions pertaining thereto promptly so as to avoid unreasonable delay in the progress of Design Professional’s Services. Where appropriate, Owner/Client shall provide the services of a soils engineer or other consultant to prepare reports, test borings, test pits, soil bearing studies, percolation tests, ground corrosion and resistivity tests and other necessary tests for determining subsoil or water conditions. 5. Time of Performance. Time is of the essence of this Agreement. Design Professional shall [commence its Services immediately] [or] [commence the Services upon receipt of a written notice to proceed] and shall continue until the Project is completed or until this Agreement is terminated. Design Professional agrees to perform its Services continuously, diligently, and energetically and to complete the Services in accordance with the Project schedule. Design Professional shall be entitled to a reasonable extension of time for any delay outside of Design Professional's reasonable control, provided © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 Design Professional has notified Program Manager within five days of any event or condition delaying the Services. If Design Professional fails to perform any of its obligations as required by this Agreement or by operation of law and thereby delays the Project, Design Professional shall be liable for any and all damages caused thereby, including damages caused to independent contractors. 6. Compensation; Documentation. Compensation for Design Professional's performance of the Services shall be as set forth in Exhibit B (and in section 3, in the case of Additional Services), payable monthly in proportion to the services performed within each phase (or subphase) of services (if Exhibit B provides for phases). Design Professional 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 [insert applicable location], 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 Design Professional. Travel expenses need to comply with the Travel Policy to be Reimbursable Expenses. Design Professional shall bill Owner/Client monthly for Services (including Additional Services) performed and Reimbursable Expenses incurred. The bill shall itemize and describe the Services (including Additional Services) performed, identify personnel performing the Services and the time expended, and any Reimbursable Expenses, with appropriate documentation of all of the foregoing attached thereto. Prior to submitting invoices to Owner/Client, Design Professional 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 Design Professional of any changes or disagreements. Provided that Design Professional 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. Design Professional agrees to provide any supporting documentation for each invoice which Program Manager or Owner/Client reasonably requests. As a condition to payment of any invoice, Design Professional shall provide an executed statutory form of lien waiver and release with each invoice and upon receipt of final payment. Any payment made hereunder prior to completion and acceptance of the Services shall not be construed as evidence of acceptance of any part of Design Professional's Services. For a period of four (4) years following substantial completion of the Project, Design Professional shall maintain full and accurate records and books of account necessary to document: (a) all activities undertaken by or on behalf of Design Professional (including by its agents and subconsultants) in the course of performing Services hereunder; and (b) all charges, expenses and disbursements incurred by Design Professional, its agents or subconsultants in performing Services hereunder. Design Professional will promptly make such books and records available to Owner/Client upon prior written request during normal business hours. 7. Right to Withhold Funds. Owner/Client may withhold, or on account of subsequently discovered evidence nullify, the whole or a part of any payment to Design Professional to such extent as may be necessary to protect Owner/Client from loss, including costs and attorneys' fees, on account of (a) defective work product not remedied; (b) claims filed or reasonable evidence indicating probable filing of a claim or claims; (c) failure of Design Professional to make payments properly to its employees or Subconsultants (defined below); (d) a reasonable doubt that the Services can be completed for the then unpaid balance of the contract price; or (e) failure to achieve sufficient progress with the Services such that Design Professional is unlikely to achieve timely completion. 8. Subconsultants and Employees. Design Professional will not contract with or otherwise engage, employ or use the services of any consultants, contractors or other third parties (any such, a "Subconsultant") in connection with the performance of Design Professional's obligations © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 hereunder, without Owner/Client's prior written consent in each instance. Neither use of a Subconsultant by Design Professional, nor Owner/Client's consent thereto, shall relieve Design Professional of its obligations under this Agreement. The fees of all Subconsultants are included in Exhibit B, or if not included therein, are included in Design Professional's overall fee for the Services. The hourly rates of each Subconsultant for Additional Services and the Reimbursable Expenses for each Subconsultant shall be governed by the same terms and conditions as those for Design Professional. Notwithstanding the foregoing, the fees, hourly rates and reimbursable expenses of each Subconsultant shall be subject to Owner/Client's prior written approval and, without limiting the foregoing, the terms, conditions, and provisions of the Design Professional's agreement with each Subconsultant shall be subject and subordinate to, and not inconsistent with, the terms, conditions and provisions of this Agreement. Design Professional agrees not to terminate any agreement with any Subconsultant without Owner/Client's written consent, unless such Subconsultant's poor or non-performance would adversely affect Design Professional's ability to perform under this Agreement. Design Professional agrees that Owner/Client shall have the right to direct Design Professional to terminate Design Professional's agreement with any Subconsultant, upon the same terms and conditions as would apply to a termination of this Agreement. Design Professional shall indemnify and hold harmless the Additional Indemnified Parties (defined below) from any loss, liability, lien, stop notice, claims, demands, causes of action, damage, cost, and/or expense (including reasonable attorneys' fees and expenses) which they may incur or which may be asserted against any of them by any third party claiming to be a Subconsultant or otherwise claiming by, through, or under Design Professional. Nothing contained herein shall create any relationship of contract or agency between Owner/Client and any Subconsultant, notwithstanding Owner/Client's consent to that Subconsultant. No dealings of any kind whatsoever between Owner/Client and any Subconsultant shall be deemed a waiver of the foregoing by Owner/Client unless Owner/Client (at Owner/Client's election) specifically agrees otherwise in writing. For purposes of Design Professional's obligations and responsibilities under this Agreement, reference to "Design Professional" shall be deemed to mean and include every Subconsultant, unless the context specifically requires otherwise. Design Professional understands the importance of working closely with Subconsultants so that the work product of Design Professional and Subconsultants under this Agreement shall be complete and coordinated. Design Professional agrees that Owner/Client shall be a third-party beneficiary of the obligations of Subconsultants under their respective agreements with Design Professional. Design Professional's authorized representative for the Project is [insert name]. Design Professional's authorized representative shall personally monitor the performance of all Services described in this Agreement and is authorized to bind Design Professional for all matters pertaining to the Project and/or this Agreement. No person shall be substituted for such authorized representative without Owner/Client's prior written consent. Design Professional shall employ individuals at the site to whom Owner/Client has no reasonable objection. In the event Owner/Client has a reasonable objection to any employee performing work at the Project, it shall notify Design Professional, 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. Design Professional shall be responsible to Owner/Client for the acts and omissions of its employees, subconsultants, and their agents and employees, and other persons performing any of the Services under a contract with Design Professional. 9. Construction Administration. To the extent that the Services calls for Design Professional to provide services during actual construction of the Project, Design Professional shall oversee and monitor the construction Services using its best skill and attention. Design Professional shall observe and become familiar with the general quality of construction, as well as the general construction means, methods, techniques, sequences and procedures used by the contractor, and report in writing to Owner/Client any instance where the materials or workmanship or the general quality of construction is not in conformance with the plans and specifications, building code requirements, or generally accepted industry standards of quality. Design Professional shall use its best efforts to ensure that defects and deficiencies do not occur during construction of the Project. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 10. Default. If Design Professional at any time refuses or neglects to prosecute the Services in a 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 fails in any respect to properly and diligently prosecute the Services, 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, Design Professional shall be in default. If Design Professional 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 Design Professional under this Agreement; or (b) terminate Design Professional's right to proceed with the Services. If Owner/Client elects to terminate, Design Professional will deliver to Owner/Client a complete set of the documents and materials previously prepared by Design Professional 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 design professional (if any) for the Project engaged to provide similar services. In case of such default termination, Design Professional 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 Design Professional; but, if such expense shall exceed such unpaid balance, then Design Professional shall promptly pay to Owner/Client the amount by which such expense exceeds such unpaid balance. The expense referred to in the last sentence shall include expenses incurred by Owner/Client for furnishing materials, for finishing the Services, for attorneys' fees, and for any damages sustained by Owner/Client by reason of Design Professional's default, plus a markup of 5% general overhead on any and all of such expenses. 11. Termination for Convenience. Owner/Client reserves the absolute right to terminate this Agreement, without cause, upon 7 days' prior written notice. In the event of termination without cause, Design Professional shall be entitled to payment in an amount not to exceed the contract price, which shall be calculated as follows: (a) Design Professional's actual cost for that part of the Services actually completed by Design Professional and accepted by Owner/Client; plus (b) other reasonable, documented, out-of-pocket costs actually incurred by Design Professional in connection with termination; plus (c) 5 percent of the cost referred to in clause (d) above for all overhead and profit. Design Professional shall not be entitled to any payment for so-called "lost profit". There shall be deducted from such sums as provided in this section the amount of any payments made to Design Professional prior to the date of termination of this Agreement. Design Professional shall not be entitled to any claim or lien against Owner/Client or the Project for any additional compensation or damages in the event of such termination and payment. If this Agreement is terminated by Owner/Client for default, and it is later determined that the default termination was wrongful, such termination automatically shall be converted to and treated as a termination for convenience under this section and Design Professional shall be entitled to receive only the amounts payable hereunder in the event of a termination for convenience. 12. Intellectual Property. All plans, drawings, tracings, specifications, programs, calculations, reports, models and other work product (collectively the "Documents") prepared and furnished by Design Professional under or for the Project shall be the property of Owner/Client whether the Project is completed or not, and shall be delivered to Owner/Client on the earlier of (i) the substantial completion date of the Project, or (ii) the date of termination of this Agreement for any reason prior to substantial completion of the Project. If this Agreement is terminated for any reason prior to completion of the Project, the Documents may be used by Owner/Client and its agents, employees, representatives and assigns, in whole or in part, or in modified form, for all purposes Owner/Client may deem advisable in connection with completion and maintenance of, and additions to, the Project, without further employment of, or payment of any compensation to, Design Professional; provided, however, that if this Agreement is terminated for any reason prior to completion of the Project and if under such circumstances Owner/Client uses, or engages the services of and directs another design professional to use, such documents to complete the Project, Owner/Client agrees to release Design Professional from any responsibility for the conformance of the uncompleted portions of the Project to such Documents and to hold Design Professional harmless from (and defend against) any and all liability, costs and expenses (including reasonable legal fees and disbursements), relative to claims arising out of matters and/or events which © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 occur subsequent to the termination of this Agreement as a result of causes other than the fault or negligence of Design Professional or anyone for whose acts it is responsible. 13. Insurance. Exhibit C sets forth certain insurance requirements and is incorporated herein. Design Professional agrees that at all times during the life of this Agreement, it shall maintain at its own cost those insurance coverages specified in Exhibit C. 14. Indemnification. Design Professional shall, with respect to all Services which are covered by or incidental to this Agreement, indemnify, defend, and hold the Additional Indemnified Parties harmless from and against any and 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, design defects, or other loss, damage, claim or expense, to the extent caused by, contributed to or arising from negligent errors or omissions in providing services (whether performed by Design Professional or an agent or subconsultant engaged by Design Professional), provided however that Design Professional shall not be obligated under this Agreement to indemnify any entity to the extent that the damage is caused by the active or sole negligence or willful misconduct of Owner/Client or its agents or contractors other than Design Professional. The "Additional Indemnified Parties" are set forth in Exhibit C. Moreover, Design Professional shall indemnify and hold the Additional Indemnified Parties harmless against any claim, suit or action, or any alleged violation or infringement of patent rights which may be made against Owner/Client by reason of the use in connection with or as a part of the Services or the Project, of anything which is now or may hereafter be covered by patent, copyright or trademark, and also against all expense, including attorneys' fees and expert witness’ fees, which Owner/Client may incur in defending or adjusting any such claim, suit or action. 15. 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. 16. Governing Law; State Required Terms and Conditions. This Agreement shall be governed by and construed under the laws of the State of California. The State Required Terms and Conditions attached as Exhibit D (to the extent applicable to the Services) are incorporated by reference. Design Professional 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. Among other things, Design Professional shall: give all legally required notices; obtain all permits and licenses necessary for performance of the Services; pay all local, state and federal taxes associated with the Services; and pay all benefits, insurance, taxes and contributions for Social Security and Unemployment which are measured by wages, salaries or other remunerations paid to Design Professional's employees. Upon Owner/Client's request, Design Professional shall furnish evidence satisfactory to Owner/Client that any or all of the foregoing obligations have been fulfilled. If Design Professional is required to prepare additional plans or specifications in order to satisfy the requirements of the applicable public authority, and the requirement for these additional documents is the result of changes in policy mandated after the date of this Agreement, the additional effort expended to produce documents which satisfy the public agency shall be considered Additional Services to the extent that the additional effort is not contributed to by the negligence or carelessness of Design Professional. 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. 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 © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 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 successors and assigns. Design Professional shall not be entitled to assign or delegate any of its rights or obligations hereunder without the prior written consent of Owner/Client. Owner/Client may assign this Agreement to (i) the State of California, or (ii) an affiliated entity, as that term is defined in California Corporations Code section 150, at any time and without Design Professional's consent. Owner/Client will promptly provide notice to Design Professional of any such assignment. 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] [Design Professional] By By (Signature) (Signature) Printed Name: Printed Name: Title: Title: © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 EXHIBIT A SCOPE OF SERVICES [insert scope] Exhibit A – Scope of Services Page 8 EXHIBIT B COMPENSATION [insert compensation terms] Exhibit B - Compensation Page 9 TRAVEL POLICY 1.5.6 TRAVEL PROCEDURES 5.6.1 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 Program Manager, 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. 5.6.2 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. 126.96.36.199 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: 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. Exhibit B - Compensation Page 10 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. 5.6.4 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. 188.8.131.52 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 such as Expedia or Travelocity are not acceptable forms of proof, therefore, because they don’t prove that travel actually occurred. 184.108.40.206 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. Exhibit B - Compensation Page 11 220.127.116.11 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 12 Attachment 1.5-A – Federal GSA Domestic Per Diem Rates [insert current Federal GSA Domestic Per Diem Rats www.irs.gov ] Exhibit B - Compensation Page 13 Attachment 1.5-B – Federal GSA Frequently Asked Questions [insert current Federal GSA Frequently Asked Questions www.irs.gov ] Exhibit B - Compensation Page 14 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 15 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 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 16 EXHIBIT C INSURANCE [Have insurance coverages reviewed by insurance advisor in connection with a particular project] A. Prior to Design Professional commencing performance of Services, and continuing for a period of at least three (3) years following completion of Design Professional's Services, Design Professional 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 Design Professional’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. .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 Design Professional and all persons for whose acts Design Professional 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 Exhibit C - Insurance Page 17 shall be prior to the first date upon which Design Professional 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 Design Professional shall include coverage in respect to the indemnification provision set forth in Section 14 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. Design Professional 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 Design Professional 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. G. Design Professional'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 Design Professional' 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 Design Professional's insurance policies. Owner/Client reserves the right to periodically review Design Professional'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. Exhibit C - Insurance Page 18 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 Design Professional’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 Design Professional fails to maintain the insurance as set forth herein, Owner/Client shall have the right, but not the obligation, to purchase said insurance at Design Professional’s expense. J. By requiring insurance herein, Owner/Client does not represent that coverage and limits will necessarily be adequate to protect Design Professional, and such coverage and limits shall not be deemed as a limitation on Design Professional’s liability under the indemnities granted to Owner/Client in this Agreement. Exhibit C - Insurance Page 19 EXHIBIT D STATE REQUIRED TERMS AND CONDITIONS 1. AUDIT: Design Professional agrees that the [insert full 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. Design Professional 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. Design Professional 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, Design Professional 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, Design Professional 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. Design Professional and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Design Professional 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 Design Professional hereby certifies that it has, unless exempted, complied with theses nondiscrimination program requirements. Design Professional 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. Design Professional shall include the nondiscrimination and compliance provisions of this clause in all subconsultant agreements to perform work under the Agreement. 3. ANTITRUST CLAIMS: The Design Professional agrees that if this Agreement was awarded by means of a competitive bid, the Design Professional 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 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. 2) “Public purchasing body” means Owner/Client 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 Exhibit C - Insurance Page 20 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, Design Professional acknowledges in accordance with Public Contract Code 7110, that: a) Design Professional 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) Design Professional, 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, Design Professional 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. 6. DRUG-FREE WORKPLACE REQUIREMENTS: Design Professional 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 Design Professional 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: Design Professional 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: Design Professional certifies that no more than one (1) final unappealable finding of contempt of court by a Federal court has been issued Exhibit C - Insurance Page 21 against Design Professional within the immediately preceding two-year period because of Design Professional’s failure to comply with an order of a Federal court, which orders Design Professional 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, Design Professional certifies that Design Professional is in compliance with Public Contract Code Section 10295.3. 9. CONFLICT OF INTEREST/STATE OFFICERS OR EMPLOYEES: Design Professional 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.) b. No state officer or employee may contract on his or her own behalf as an independent Design Professional 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: Design Professional 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 Design Professional agrees to comply with such provisions before commencing the performance of the work of this Agreement. (Labor Code Section 3700.) 11. AMERICANS WITH DISABILITIES ACT: Design Professional 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: Design Professional 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. Exhibit C - Insurance Page 22
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