RFQ - AS-NEEDED ASBESTOS SAMPLING LAB ANALYSIS

This agreement (“Agreement”) is made and entered into effective as of the date of the last signature on the signature page by and between the San Diego County Air Pollution Control District (“District”), a body corporate and politic and a public agency of the State of California and [# enter full corporate title, business structure (obtain from contractor - e.g. “a California corporation,” “a California limited liability company,” “a California public benefit corporation”), located at (complete address)] (“Contractor”), with reference to the following facts:

RECITALS

A. Pursuant to an agreement between the County of San Diego (“County”) and District, the County Department of Purchasing and Contracting is authorized, upon request by District, (i) to act as a Purchasing Agent for District for goods and services; and, (ii) to execute expenditure contracts, in accordance with applicable County Board of Supervisors’ policies and County ordinances. Additionally, County officers and employees, when acting for the benefit of the District, are ex officio officers and employees of the District.

B. District has requested that the County Department of Purchasing and Contracting act as a Purchasing Agent and award this contract.

C. Contractor is specially trained and possesses certain skills, experience, education, and competency to perform these services.

D. Consistent with section 703.10 of the County Charter, the Air Pollution Control Officer, as the chief administrative officer of the District, made a determination that Contractor can perform the services more economically and efficiently than the District.

E. The Agreement shall consist of:

• This document,

• Exhibit A Statement of Work,

• Exhibit B Insurance Requirements, and

• Exhibit C Payment Schedule.

F. In the event of a conflict between any provisions of this Agreement, the following order of precedence shall govern: First (1st) this document; Second (2nd) Exhibit B; Third (3rd) Exhibit A; Fourth (4th) Exhibit C;

NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

ARTICLE 1

KEY PROVISIONS

1.1 CONTRACTOR: _____

1.2 SERVICES: AS-NEEDED ASBESTOS SAMPLING LAB ANALYSIS

1.3 AGREEMENT TERM: The initial term of this Agreement shall begin on ____ __, 20__ and end on ____ __, 20__ for an Agreement period of one year (“Initial Term”).

1.4 OPTION TO EXTEND: The District shall have the option to extend the term of this Agreement for two increments of one year(s) (each an “Option Period”), for a total of two years beyond the expiration of the Initial Term, not to exceed ______ __, 20__. This option shall be automatically exercised unless District notifies Contractor in writing not less than thirty (30) days prior to an Option Period that the District does not intend to extend the Agreement.

1.5 COMPENSATION: Pursuant to Exhibit C, Article 4: Compensation, and other applicable provisions of this Agreement, District agrees to pay Contractor a sum not to exceed [#] ($######) (“Maximum Agreement Amount”). Furthermore, compensation for the Initial Term and any Option Periods shall not exceed the amounts shown for the Initial Term or that Option Period shown below.

Initial Term ##/##/#### - ##/##/#### $___________

First Option Period ##/##/#### - ##/##/#### $___________

Second Option Period ##/##/#### - ##/##/#### $___________

1.6 COR: The District designates the following individual as the Contracting Officer’s Representative (“COR”).

#Name and Title

#Address

#Address

#Phone and email

1.7 CONTRACTOR’S REPRESENTATIVE: Contractor designates the following individual as the Contractor’s Representative.

#Name and Title

#Address

#Address

#Phone and email

ARTICLE 2

PERFORMANCE OF WORK

2.1 Statement of Work. Contractor shall perform the work described in the “Statement of Work” attached as Exhibit A to this Agreement, and by this reference incorporated herein, except for any work therein designated to be performed by District.

2.1.1 Evaluation Studies. Contractor shall participate as requested by the District in research and/or evaluative studies designed to show the effectiveness and/or efficiency of Contractor services or to provide information about Contractor’s project.

2.2 Standard of Performance. Contractor shall, in good and workmanlike manner and in accordance with the highest professional standards, at its own cost and expense, furnish all of the labor, technical, administrative, professional and all other personnel, all supplies and materials, equipment, printing, transportation, training, facilities, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by District, necessary or proper to perform and complete the work and provide the services required of Contractor by this Agreement.

2.3 Contractor as Independent Contractor. Contractor is, for all purposes of this Agreement, an independent contractor. Neither Contractor nor any person engaged by Contractor to accomplish the work under this Agreement, including, without limitation, Contractor’s and its subcontractors’ employees, volunteers, officers, agents, consultants, and subcontractors (“Workforce”) shall be deemed to be employees of the District. Contractor shall perform its obligations under this Agreement according to the Contractor’s own means and methods of work, which shall be in the exclusive charge and under the control of the Contractor, and which shall not be subject to control or supervision by District except as to the results of the work. District hereby delegates to Contractor any and all responsibility for the safety of Contractor’s Workforce, which shall include inspection of property to identify potential hazards. Neither Contractor nor Contractor’s Workforce shall be entitled to any benefits to which District employees are entitled, including without limitation, overtime, retirement benefits, workers’ compensation benefits and injury leave.

2.4 Contractor’s Agents and Employees or Subcontractors. Contractor shall obtain, at Contractor’s expense, all Workforce required for Contractor to perform its duties under this Agreement, and all such services shall be performed by Contractor’s Representative, or under Contractor’s Representatives’ supervision, by persons authorized by law to perform such services. Retention by Contractor of any Workforce member shall be at Contractor’s sole cost and expense, and District shall have no obligation to pay Contractor’s Workforce to support any such person’s or entity’s claim against the Contractor; or to defend Contractor against any such claim.

In the event any subcontractor or consultant is utilized by Contractor for any portion of the project, Contractor retains the prime responsibility for carrying out all the terms of this Agreement, including the responsibility for performance and ensuring the availability and retention of records of subcontractors and consultants in accordance with this Agreement.

2.4.1 “Related Subcontract” means an agreement to furnish, or the furnishing of, supplies, materials, equipment, or services of any kind to Contractor or any higher tier subcontractor in the performance of some or all of the work in this Agreement. Related Subcontracts includes consultant agreements, which are defined as agreements for services rendered, or the rendering of services, by persons who are members of a particular profession or possess as special skill and who are not officers or employees of the Contractor. Examples include those services acquired by Contractor or a subcontractor in order to enhance their legal, economic, financial, or technical positions. Professional and consultant services are generally acquired to obtain information, advice, opinions, alternatives, conclusions, recommendations, training, or direct assistance, such as studies, analyses, evaluations, liaison with government officials, or other forms or representation. Related Subcontracts shall not include agreements for ancillary goods or services, or consulting services intended to support Contractor in a general manner not specific to the work performed under this Agreement. “Related Subcontractor” means an individual or entity holding or performing a Related Subcontract.

2.4.2 Required Subcontract Provisions: Contractor shall notify all Related Subcontractors of Contractor’s relationship to District and include in its subcontracts all provisions necessary to ensure Contractor’s and subcontractors’ compliance with this Agreement. Without limiting the foregoing, Contractor shall specifically include in its Related Subcontracts, and require Related Subcontractors’ compliance with, the applicable provisions of Articles 3: Documents and Records and Information Technology, 7: Suspension, Delay, and Termination, 9: Disentanglement, 10: District Contractor Responsibilities, 11: Conflicts of Interest; Contractor’s Conduct, 12: Compliance with Laws and Regulations, 14: (if included in this Agreement), 15: Monitoring, Audit, and Investigation, 17: Indemnity and Insurance and 18: General Provisions, and section 4.6.1 of Article 4: Compensation hereunder, altered as necessary for proper identification of the contracting parties.

2.4.3 District Approval: Any Related Subcontract that is in excess of fifty thousand dollars ($50,000) or twenty five percent (25%) of the value of this Agreement, whichever is less; or a combination of Related Subcontracts to the same individual or firm for the Agreement period, the aggregate of which exceeds fifty thousand dollars ($50,000) or twenty five percent (25%) of the value of this Agreement, whichever is less, must have prior concurrence of the COR.

2.5 Offshore Prohibition. Except where Contractor obtains the District’s prior written approval, Contractor shall perform the work of this Agreement only from or at locations within the United States. Any District approval for the performance of work outside of the United States shall be limited to the specific instance and scope of such written approval, including the types of work and locations involved. Notwithstanding the foregoing, this section shall not restrict the country or countries of origin of any assets purchased to provide the work hereunder; provided that when such assets are used to provide the work, such assets shall be used only from or at locations within the geographic boundaries of the United States.

2.6 Responsibility for Equipment. District shall not be responsible nor be held liable for any damage to persons or property consequent upon the use, misuse, or failure of any equipment used by Contractor or Contractor’s Workforce, even though such equipment may be furnished, rented, or loaned to Contractor by District. The acceptance or use of any such equipment by Contractor or Contractor’s Workforce shall be construed to mean that Contractor accepts full responsibility for and agrees to exonerate, indemnify, and hold harmless District from and against any and all claims for any damage whatsoever resulting from the use, misuse, or failure of such equipment, whether such damage be to the employee or property of Contractor, other contractors, District, or other persons. Equipment includes, but is not limited to material, computer hardware and software, tools, or other things.

2.6.1 Contractor shall repair or replace, at Contractor’s expense, all District equipment or fixed assets that are damaged or lost as a result of the actions of Contractor or Contractor’s Workforce.

2.7 Non-Expendable Property Acquisition. District retains title to all non-expendable property provided to Contractor by District, or which Contractor may acquire with funds from this Agreement if payment is on a cost reimbursement basis, including property acquired by lease purchase Agreement. Contractor may not expend funds under this Agreement for the acquisition of non-expendable property having a unit cost of $5,000 or more and a normal life expectancy of more than one year without the prior written approval of COR. Contractor shall maintain an inventory of non-expendable equipment, including dates of purchase and disposition of the property. Inventory records on non-expendable property shall be retained, and shall be made available to the District upon request, for at least three years following date of disposition. Non-expendable property that has value at the end of the Agreement (e.g. has not been depreciated so that its value is zero), and to which the District may retain title under this paragraph, shall be disposed of at the end of the Agreement as follows: At District’s option, it may: 1) have Contractor deliver to another District contractor or have another District contractor pick up the non-expendable property; 2) allow Contractor to retain the non-expendable property provided that Contractor submits to the District a written statement in the format directed by the District of how the non-expendable property will be used for the public good; or 3) direct the Contractor to return to the District the non-expendable property.

ARTICLE 3

DOCUMENTS AND RECORDS AND INFORMATION TECHNOLOGY

3.1 Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other material or properties produced under this Agreement shall be the sole and exclusive property of District. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyright, or patent right by Contractor in the United States or in any other country without the express written consent of District. District shall have unrestricted authority to publish, disclose, distribute and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement.

3.2 Confidentiality. Contractor agrees to maintain the confidentiality of, and to take industry appropriate as well as all legally required measures to prevent the unlawful disclosure of, any information that is legally required to be kept confidential. Except as otherwise allowed by local, State, or federal law or regulation, Contractor agrees to only disclose confidential records where the holder of the privilege, whether the District or a third party, provides written permission authorizing the disclosure. Further, except as may be required by law, any reports, records, data, or other information given to or prepared or assembled by Contractor under this Agreement that the District requests to be kept confidential shall not be made available to any individual or organization by the Contractor without the prior written approval of the District. Contractor shall not disclose to any individual or organization any reports, records, data, or other information received, prepared, or assembled by Contractor under this Agreement.

3.3 Public Records Act. The California Public Records Act (“CPRA”) requires District to disclose “public records” in its actual or constructive possession unless a statutory exemption applies. This generally includes contracts and related documents. If District receives a CPRA request for records relating to the Agreement, District may, at its sole discretion, either determine its response to the request without notifying Contractor or notify Contractor of the request. If District determines its response to the request without notifying Contractor, Contractor shall hold District harmless for such determination. If District notifies Contractor of the request, Contractor may request that District withhold or redact records responsive to the request by submitting to District a written request within five (5) business days after receipt of the District’s notice. Contractor’s request must identify specific records to be withheld or redacted and applicable exemptions. Upon timely receipt of Contractor’s request, District will review the request and at its sole discretion withhold and/or redact the records identified by Contractor. Contractor shall hold District harmless for District’s decision whether to withhold and/or redact pursuant to Contractor’s written request. Contractor further agrees that its defense and indemnification obligations set forth in section 17.1 of this Agreement extend to any Claim (as defined in section 17.1) against the District Parties (as defined in section 17.1) arising out of District’s withholding and/or redacting of records pursuant to Contractor’s request. Nothing in this section shall preclude Contractor from bringing a “reverse CPRA action” to prevent disclosure of records. Nothing in this section shall prevent the District or its agents or any other governmental entity from accessing any records for the purpose of audits or program reviews if that access is legally permissible under the applicable local, State, or federal laws or regulations. Similarly, District or its agent or designee may take possession of the record(s) where legally authorized to do so.

3.4 Custody of Records. Contractor shall deliver to District or its designee, at District’s request, all documentation and data related to Contractor’s work under this Agreement, including, but not limited to, District data and client files held by Contractor, at no charge to District. District, at its option, may take custody of Contractor’s client records upon Agreement termination, expiration, or at such other time as District may deem necessary. District agrees that such custody will conform to applicable confidentiality provisions of State and federal law and that retained records shall be available to Contractor for examination and inspection in accordance with applicable law. Contractor shall destroy records not turned over to District in accordance with applicable retention requirements and this Agreement. Notwithstanding the foregoing, Contractor may retain one (1) copy of the documentation and data for archival purposes or warranty support, and Contractor may maintain records that it is legally required to maintain.

ARTICLE 4

COMPENSATION

District will pay Contractor in accordance with Exhibit C Payment Schedule and this Article 4, for the work specified in Exhibit A Statement of Work (SOW), not to exceed the maximum compensation as set forth on signature page. Contractor shall employ and maintain an accounting and financial system to effectively monitor and control costs and assure accurate invoicing and performance under this Agreement.

4.1 General Principles. Contractor shall comply with generally accepted accounting principles, good business practices, San Diego County Code of Administrative Ordinances section 472, which can be viewed at https://codelibrary.amlegal.com/codes/san_diego/latest/sandiego_admin/0-0-0-33071 , and the cost principles published by the federal Office of Management and Budget (OMB), including 2 CFR 200 - UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS “The Uniform Guidance,” which can be viewed at https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title02/2cfr200_main_02.tpl . Contractor shall comply with all applicable federal, State, and other funding source requirements, including Contractor shall, at its own expense, furnish all cost items associated with this Agreement except as specifically stated herein to be furnished by District.

4.1.1 Fiscal Year. The District’s fiscal year runs from July 1 through June 30 (“District Fiscal Year”).

4.2 Compensation.

4.2.1 Contractor shall be entitled to compensation only upon completion and acceptance of a deliverable or portion of work as described in the Payment Schedule (“Services”). Services shall include any additional or as-needed services specified in the SOW and Pricing Schedule and pre-approved in writing by COR or authorized by District task order issued in accordance with this Agreement (“As-Needed Services”).

4.2.1.1 Contractor shall be entitled to reimbursement for incidental expenses associated with any such portions of the work only when specifically allowed for in the SOW and Pricing Schedule (“Reimbursable Expenses”), and only upon completion and acceptance of the Services for which they were incurred unless earlier reimbursement is otherwise authorized under this Agreement. Compensation for Reimbursable Expenses shall be at cost.

4.2.1.2 Where travel, lodging, or meal expenses (“Travel Expenses”) are allowable Reimbursable Expenses, rates must not exceed County-authorized rates set forth in San Diego County Administrative Code section 472. Should Contractor incur Travel Expenses greater than the County-authorized rates, Contractor shall not be entitled to reimbursement for the difference between the County-authorized rate for each category and the actual cost.

4.3 Invoices.

4.3.1 Contractor shall invoice monthly for completed and accepted Services performed in the prior month.

4.3.1.1 Where allowable, Contractor may invoice monthly for As-Needed Services completed and accepted within that month, or include with invoices for other completed and accepted Services.

4.3.2 Contractor shall submit invoices to the COR that are completed and submitted in accordance with written COR instructions and are in compliance with all Agreement terms.

4.3.2.1 Contractor shall provide accurate invoices with sufficient detail and supporting documentation for District verification. Invoices must reference the Agreement number (and task order, if applicable), contain a detailed listing of each deliverable or portion of work, including the pay point, target, accomplishment, unit price, percentage completion, and appropriate calculations where applicable. Invoices must include a progress report documenting the status and accomplishments of Contractor.

4.3.2.2 Contractor agrees that by submitting an invoice, Contractor certifies, under penalty of perjury under the laws of the State of California, that the deliverables and/or services invoiced were delivered and/or performed specifically for this Agreement in accordance with and compliance to all terms and conditions set forth therein.

4.3.3 Contractor requests for payment of authorized Reimbursable Expenses must be included in the invoice for the associated Services, unless previously invoiced in accordance with this Agreement.

4.4 Payments. Contractor shall be entitled to payment only upon District approval of a correct and substantiated invoice. Payment terms are, unless otherwise specified by District, thirty (30) days from the later of: (i) performance of work under the Agreement entitling Contractor to payment, (ii) District receipt of a correct and substantiated invoice, and (iii) District receipt of all substantiating information. The District at its sole discretion may issue partial payment where only a portion of an invoice is correct and substantiated. Payment shall be deemed to have been made on the date that County on behalf of the District submits electronic payment or mails a warrant or check. The District is precluded from making payments prior to receipt of services (advance payments).

4.5 Full Compensation. The compensation set forth in this Agreement shall constitute the full and complete payment for Contractor's performance of the services set forth herein. Contractor shall not be entitled to any additional payment for services rendered. Contractor shall not be entitled to any compensation, reimbursement, ancillary benefits, or other consideration for services rendered beyond that specified in Agreement.

4.6 Prompt Payment for Vendors and Subcontractors.

4.6.1 Unless otherwise set forth in this section 4.6, Contractor shall promptly pay Related Subcontractors for satisfactory performance of work required by this Agreement. Such prompt payment shall be no later than thirty (30) days after Contractor receives payment for such services from District, and Contractor shall apply such payments to the payment of the Related Subcontractor(s) that performed the work.

4.6.2 If Contractor determines that any payment otherwise due such Related Subcontractor is subject to withholding in accordance with a Related Subcontract, Contractor shall:

4.6.2.1 Provide written notice to the Related Subcontractor and COR within three (3) business days of such withholding stating the amount to be withheld, the basis for the withholding, and, if applicable, the cure required of the Related Subcontractor in order to receive payment of the amounts withheld; and

4.6.2.2 Reduce the Related Subcontractor’s payment by an amount not to exceed the amount specified in the notice furnished under paragraph 4.6.2.1 above.

4.6.3 Contractor shall not include in any invoice to the District amounts that the Contractor has withheld or intends to withhold from a Related Subcontractor for failure to satisfactorily perform work in a manner required by this Agreement. If such withholding determination is made after submitting an invoice to the District, Contractor shall submit to District a revised invoice omitting or crediting such amount. Contractor shall not include such amounts in any subsequent invoices unless the Related Subcontractor has cured the basis for withholding.

4.7 Partial Payment. Contractor shall be paid only for work performed in accordance with this Agreement. If Contractor fails to perform a portion of the work or fails to perform some or all of the work in accordance with this Agreement, District, at its sole discretion, may provide partial payment to Contractor to reflect the reasonable value of work properly performed.

4.8 Withholding of Payment. Without limiting any other provision of this Agreement, District may withhold payment, in whole or in part, if any of the following exist:

4.8.1 Missing Information. Contractor has not provided to District reports, data, audits, or other information required for Agreement administration, for reporting or auditing purposes, or by State, federal, or other funding source.

4.8.2 Misrepresentation. Contractor, with or without knowledge, made any misrepresentation of a substantial and material nature with respect to any information furnished to District.

4.8.3 Unauthorized Actions by Contractor. Contractor took any action under this Agreement that required District approval without having first received such approval.

4.8.4 Breach. In the District's determination, Contractor is, or at the time of performance was, in breach of any of the terms of this Agreement.

4.8.5 Wage Theft. Contractor has a judgment rendered against it by the California Division of Labor Standards Enforcement (DLSE), other state labor compliance body, or the U. S. Department of Labor that is unsatisfied. In such event, District may withhold payment from Contractor in the amount of such unsatisfied judgment until such judgment has been discharged.

4.9 Disallowance. District may disallow payment at any time if it determines that the basis for the payment is or was not eligible for compensation under this Agreement. If District makes payment to Contractor that is later disallowed by the County, State or federal government, or other funding source, District shall be entitled to prompt recovery of funds in accordance with Article 16: Recovery of Funds.

4.10 Maximum Price. During the performance period of this Agreement, the maximum price for the same or similar items and/or services shall not exceed the lowest price at which Contractor then offers the items and/or services to its most favored customer.

4.11 Overpayments. If Contractor becomes aware of a duplicate contract financing or invoice payment or that District has otherwise overpaid on a contract financing or invoice payment, Contractor shall immediately notify the COR and District shall be entitled to prompt recovery of funds in accordance with Article 16: Recovery of Funds.

4.12 Availability of Funding. The District’s obligation for payment under this Agreement is contingent upon the availability of funding from which payment can be made. No legal liability on the part of the District shall arise for payment beyond the end of the District Fiscal Year for which funds are designated by the District. In the event that federal, State, County, or District, or other agency funding ceases or is reduced, the District shall, in its sole discretion and without limiting any other provision of this Agreement, have the right to terminate or suspend this Agreement, or to reduce compensation and service levels proportionately.

4.13 Rate of Expense. Contractor shall control its rate of expense throughout the term of this Agreement such that it is reasonably in alignment with the progress of the Agreement, inclusive of term, achievement towards objectives, anticipated revenue, deliverables, and other applicable factors. Contractor shall provide to District, upon request, documentation sufficient to verify Contractor’s compliance with such requirements.

4.13.1 Contractor shall promptly inform the COR if its rate of expense exceeds, or is anticipated to exceed, the progress of this Agreement or would result in expenses that exceed the maximum Agreement amount or budget. In no event, however, shall Contractor’s invoiced amounts exceed the maximum Agreement amount or budget.

4.13.2 If the Agreement term, Initial Term, or any Option Period originates in one District Fiscal Year and ends in another District Fiscal Year, Contractor shall not exceed the amounts reasonably allocated to each of the District Fiscal Years based on the monthly budget or other rate of expense.

ARTICLE 5

AGREEMENT ADMINISTRATION

5.1 The County Director of the Department of Purchasing and Contracting or designated Department of Purchasing and Contracting official is the contracting officer for this Agreement (“Contracting Officer”).

5.2 District’s Agreement Administrator. The District has designated the individual identified in Article 1: Key Provisions as the Contracting Officer’s Representative (“COR”). The COR will coordinate the District’s administration of this Agreement. The District or County may, upon written notice to Contractor, change the COR designated for this Agreement.

5.2.1 The COR is designated to receive and approve Contractor invoices for payment, audit and inspect records, inspect Contractor services, and provide other technical guidance as required.

5.2.2 The COR is not authorized to make Changes to this Agreement, except for administrative adjustments, such as line-item budget changes or adjustments to the service requirements that do not change the purpose or intent of the Statement of Work, the Terms and Conditions, the Agreement Term, or the total Agreement price (“Administrative Adjustments”). Each Administrative Adjustment shall be in writing and signed by COR and Contractor.

5.3 Contractor’s Representative. The person identified as Contractor’s Representative shall ensure that Contractor’s duties under this Agreement shall be performed on behalf of the Contractor by qualified personnel; Contractor represents and warrants that (1) Contractor has fulfilled all applicable requirements of the laws of the State of California to perform the services under this Agreement and (2) Contractor’s Representative has full authority to act for Contractor hereunder. Contractor and District recognize that the services to be provided by Contractor’s Representative pursuant to this Agreement are unique: accordingly, Contractor’s Representative shall not be changed during the Term of the Agreement without District’s written consent. District reserves the right to terminate this Agreement pursuant to section 7.1 “Termination for Default” if Contractor’s Representative should leave Contractor’s employ, or if, in District’s judgment, the work hereunder is not being performed by Contractor’s Representative.

5.4 Agreement Progress. Contractor shall promptly apprise the District of problems, if any, being experienced in completing the work under this Agreement. The Contractor shall also promptly notify the Contracting Officer (in writing) of any work being performed, if any, that the Contractor considers being over and above the requirements of the Agreement.

5.5 Agreement Progress Meeting. Upon request by either party, Contractor shall meet with the COR and/or other District personnel to review the Contractor’s performance under this Agreement, with the COR or designated representative serving as meeting chair. The minutes of these meetings will be reduced to writing and signed by the COR and the Contractor. Should the Contractor not concur with the minutes, the Contractor shall set out in writing any area of disagreement within 10 days. Appropriate action will be taken to resolve any areas of disagreement.

ARTICLE 6

CHANGES

6.1 Changes. Changes to this Agreement may only be made by Administrative Adjustment, Change Order, or amendment, in accordance with this Article 6. No other modification of this Agreement shall be valid.

6.1.1 Administrative Adjustment. Changes that do not change the purpose or intent of the Statement of Work, the Terms and Conditions, the Agreement Term, or the total Agreement price of the Agreement, such as line-item budget changes or adjustments to the service requirements, (“Administrative Adjustments”) may be made if in writing and signed by COR and Contractor.

6.1.2 Change Order. The District may at any time, by written order, make Changes within the general scope of this Agreement (“Change Order”). If any Change Order causes an increase or decrease in the cost or time required for the performance of the work under this Agreement, an equitable adjustment shall be made to the price, delivery schedule, or both.

6.1.2.1 Contractor must assert any claim for equitable adjustment within thirty (30) days from the date of receipt by the Contractor of the Change Order; however, the Contracting Officer may receive and act upon any such claim asserted at any time prior to final payment under this Agreement where the facts justify such action. Where the cost of property made obsolete or excess as a result of a Change Order is included in the Contractor’s claim for equitable adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of such property. Failure to agree to any equitable adjustment shall be a dispute concerning a question of fact within the meaning of Article 8: Disputes. However, nothing in this section shall excuse the Contractor from proceeding with this Agreement as changed.

6.1.3 Amendment. The District and Contractor may modify this Agreement by written amendment signed by the Contracting Officer and Contractor.

ARTICLE 7

SUSPENSION, DELAY, AND TERMINATION

7.1 Termination for Default. In the event of Contractor’s breach of this Agreement, District shall have the right to terminate this Agreement in whole or in part.

7.1.1 Prior to termination for default, Contracting Officer will send Contractor written notice specifying the default. Contractor shall have ten (10) days from issuance (unless a different time is given in the notice) to respond to the notice as directed by District to acknowledge the default or show cause as to why Contractor is not in default. Such notice may provide Contractor the opportunity to cure the default or to demonstrate progress towards curing the default. If Contractor fails to respond, or if Contractor’s response is not satisfactory to the District, District may terminate this Agreement for default upon written notice from Contracting Officer.

7.1.2 If District determines that the default contributes to the curtailment of an essential service; poses an immediate threat to life, health, or property; or constitutes fraud or other serious misconduct, District may terminate this Agreement for default by written notice from the Contracting Officer without the notice described in section 7.1.1 above.

7.1.3 In the event of termination for default, all finished or unfinished documents, and other materials, prepared by Contractor under this Agreement shall become the sole and exclusive property of District.

7.1.4 If, after termination for default, it is determined for any reason that Contractor was not in default under this Agreement, the rights and obligations of the parties shall be the same as if terminated for convenience under section 7.5 “Termination for Convenience.”

7.2 RESERVED

7.3 Failure to Perform. Contractor shall immediately notify the COR upon learning that it has failed, or that it is reasonably foreseeable that it will fail, to perform or timely perform its obligations under this Agreement for any reason, including, but not limited to, a labor dispute, emergency, epidemic, pandemic, or supply chain shortage. In such event, Contractor shall, upon request, prepare and deliver to the COR a written mitigation plan. Nothing in this section relieves the Contractor of its obligations under this Agreement.

7.4 Reduction in Funding. In the event there is a reduction of funds made available by District to Contractor under this or subsequent agreements, the District and its officers and employees shall incur no liability to Contractor and shall be held harmless from any and all claims, demands, losses, damages, injuries, or liabilities arising directly or from such action.

7.5 Termination for Convenience. The District may, by written notice from Contracting Officer, terminate this Agreement for convenience, in whole or in part, at any time. Upon receipt of such notice, Contractor shall promptly report to District all undelivered or unaccepted work performed in accordance with this Agreement prior to termination (“Incomplete Work”). Contractor may, at District’s option, be required to complete some or all Incomplete Work during Disentanglement.

7.5.1 The District shall pay Contractor as full compensation for work performed and costs of termination:

7.5.1.1 The unit or pro rata price for any delivered and accepted portion of the work.

7.5.1.2 Actual and reasonable Contractor costs for Incomplete Work not mitigable or otherwise recoverable by Contractor. Such compensation shall not exceed the unit or pro rata price due to Contractor had the work been completed.

7.5.2 In no event shall the District be liable for any loss of profits or any other consequential damages.

7.5.3 District’s termination of this Agreement for convenience shall not preclude it from changing the termination to a default, as set forth in section 7.1 of this Agreement, nor from taking any action in law or equity against Contractor for:

7.5.3.1 Fraud, waste, or abuse of Agreement funds, or

7.5.3.2 Improperly submitted claims, or

7.5.3.3 Any failure to perform the work in accordance with the Statement of Work, or

7.5.3.4 Any breach of any term or condition of the Agreement, or

7.5.3.5 Any actions under any warranty, express or implied, or

7.5.3.6 Any claim of professional negligence, or

7.5.3.7 Any other matter arising from or related to this Agreement, whether known, knowable, or unknown before, during, or after the date of termination.

7.6 Suspension of Work. The Contracting Officer may order Contractor, in writing, to suspend, delay, or interrupt all or part of the work of this Agreement for the period of time that the Contracting Officer determines appropriate. District reserves the right to prohibit, without prior notice, Contractor and/or Contractor’s Workforce from 1) accessing District data, files, and/or electronic systems; or 2) providing any other services under this Agreement.

ARTICLE 8

DISPUTES

Notwithstanding any provision of this Agreement to the contrary, the Contracting Officer shall decide any dispute concerning a question of fact arising out of this Agreement that is not otherwise disposed of by the parties within a reasonable period of time. The decision of the Contracting Officer shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary, or so grossly erroneous as necessarily to imply bad faith. Contractor shall proceed diligently with its performance hereunder pending resolution by the Contracting Officer of any such dispute. Nothing herein shall be construed as granting the Contracting Officer or any other administrative official, representative or board authority to decide questions of law.

ARTICLE 9

DISENTANGLEMENT

9.1 General Obligations. Upon the expiration or termination of all or a portion of the services provided hereunder (“Transitioning Services,”), the District may elect to have such services, substantially similar services, or follow-on services (“Disentangled Services”) performed by District or one or more separate contractors (“Replacement Provider”). Contractor shall take all actions necessary to accomplish a complete and timely transition of the Disentangled Services (“Disentanglement”) without any material impact on the services. Contractor shall cooperate with District and otherwise take all steps reasonably required to assist District in effecting a complete and timely Disentanglement. Contractor shall provide Replacement Provider with all information regarding the services and any other information needed for Disentanglement.

Contractor shall provide for the prompt and orderly conclusion of all work required under this Agreement, as District may direct, including completion or partial completion of projects, documentation of work in process, and other measures to assure an orderly Disentanglement.

9.2 Disentanglement Process. Contractor and District shall discuss in good faith a plan for Contractor’s Disentanglement that shall not lessen in any respect Contractor’s Disentanglement obligations.

If District requires the provision of Transitioning Services after expiration or termination of the Agreement or Disentanglement work not otherwise required under this Agreement, for which additional compensation will be due, such services shall be compensated at: (i) the applicable rates in Agreement or a reasonable pro-rata of those prices, or (ii) if no applicable rates apply, no more than Contractor’s costs. Such work must be approved in writing by District approval of a written Disentanglement plan or separately in writing and is subject to the Compensation clause in Article I: Key Provisions.

Contractor’s obligation to provide Disentanglement services shall not cease until all Disentanglement obligations are completed to District’s reasonable satisfaction, including the performance by Contractor of all Specific Obligations of Contractor. District shall not require Contractor to perform Transitioning Services beyond 12 months after expiration or termination, provided that Contractor meets all Disentanglement obligations and other obligations under Agreement.

9.3 Specific Obligations. The Disentanglement shall include the performance of the following specific obligations (“Specific Obligations”):

9.3.1 No Interruption or Adverse Impact. Contractor shall cooperate with District and Replacement Provider to ensure a smooth Disentanglement, with no interruption of or adverse impact to Disentangled Services, Transitioning Services, other work required under the Agreement, or services provided by third parties.

9.3.2 Client Authorizations. Contractor shall obtain, or use best efforts to obtain, client consents or authorizations necessary to transfer client data to Replacement Provider.

9.3.3 Leases, Licenses, and Third-Party Agreements. Contractor shall procure at no charge to District all authorizations necessary to grant Replacement Provider the use and benefit of any third-party agreements pending their conveyance or assignment to Replacement Provider.

Contractor, at its expense, shall convey or assign to Replacement Provider leases, licenses, and other third-party agreements procured under this Agreement, subject to written approval of the Replacement Provider (and District, if Replacement Provider is other than District).

Without limiting any other provision of this Agreement, Contractor shall reimburse District for any losses resulting from Contractor’s failure to comply with any terms of any third-party agreements prior to the date of conveyance or assignment.

9.3.4 District Property. District non-expendable property shall be handled as set forth in section 2.7 of this Agreement.

9.3.5 Contractor Property. Contractor shall promptly remove from District’s site(s) any Contractor non-expendable property when no longer needed to provide services under this Agreement.

9.3.6 Delivery of Documentation. Notwithstanding section 3.4 of this Agreement, and without limiting Contractor's obligations thereunder, Contractor shall deliver to Replacement Provider (and/or District, if Replacement Provider is other than District), all documentation and data necessary for Disentanglement.

ARTICLE 10

DISTRICT CONTRACTOR RESPONSIBILITIES

10.1 RESERVED

10.2 RESERVED

10.3 RESERVED

10.4 Ethical Business Standards. As a material term and condition of this Agreement, Contractor shall have an ongoing responsibility to maintain internal policies and procedures established to ensure adherence to laws, regulations, Agreement terms, promote good conduct within the organization, and mitigate any identified risks associated with non-compliance to such. Contractor shall develop and implement a program and mechanism for receiving, investigating and resolving Workforce, client, or public concerns and maintain it during the term of this Agreement. In lieu of a dedicated reporting mechanism for such concerns, Contractor may choose to utilize the County of San Diego Office of Ethics and Compliance Ethics Hotline Posters to display in common work areas. Posters may be downloaded at: http://www.sandiegocounty.gov/content/sdc/cao/oec.html .

10.4.1 Contractor shall train all Workforce on their program for Ethical Business Standards annually and maintain documentation of such. Contractor shall retain this documentation in accordance with the Agreement’s provision regarding retention of records.

10.5 Financial Audit. Contractor shall annually engage an independent Certified Public Accountant licensed to perform audits and attests to conduct an annual financial audit of the organization. The results of the Financial Audit shall be provided to COR within 30 business days of completion. Contractor shall notify COR within 24 hours if notified at any time that the Financial Audit will include a disclaimer of opinion or adverse findings.

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