10-005 Service Contract 26000004 (Example).pdf

S:\PURCH PDF\0PROCFLDR\FY2026\26000004 RFP FOR CHRISTMAS TREE LIGHTING AND PARADE\SERVICE CONTRACT 26000004.DOC Revised: August 28, 2025

CITY OF MIDLAND

SERVICE CONTRACT

26000004 Live Broadcasting for Christmas Events

THIS CONTRACT, effective this _____day of _______ 2025, by and between the City of Midland, Texas

(“CITY”), and _________________. (“COMPANY”).

For and in consideration of the covenants contained herein, COMPANY and CITY hereby agree as follows:

1. COMPANY shall perform all work as set forth for the Request for Proposals for Live Broadcasting

Services related to the City of Midland 2025 Christmas Tree Lighting and Parade (the “RFP”), which are incorporated by reference as if fully set forth herein. In performing the work, COMPANY shall, at its own cost and expense furnish all the materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete said work, all of which shall be in accordance with the RFP and COMPANY’S proposal submitted in response to the RFP, which is also incorporated by reference as if fully set forth herein.

2. COMPANY shall at all times exercise reasonable precaution for the safety of employees and others on or near the work and shall comply with all applicable provisions of federal, state and municipal laws and building codes. All machinery and equipment and other physical hazards shall be guarded in accor-dance with the "Manual of Accident Prevention in Construction" of Associated General Contractors of

America, except where incompatible with federal, state or municipal laws or regulations.

3. CITY shall provide the following at no cost to COMPANY:

a. Location for COMPANY’s remote truck at the events;

b. Power to run the Live Broadcasting;

c. Audio feed; and

d. Assistance with the administration of live interviews

4. INDEMNITY: COMPANY SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND

CITY AND ALL OF CITY'S OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS,

ACTIONS, CLAIMS, DAMAGES, PERSONAL INJURIES, ACCIDENTAL DEATH, LOSSES,

PROPERTY DAMAGE AND EXPENSES OF ANY CHARACTER WHATSOEVER, INCLUDING

ATTORNEY'S FEES, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES

RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, ON ACCOUNT

OF ANY NEGLIGENT ACT OF COMPANY, IT’S AGENTS OR EMPLOYEES, OR ANY

SUBCONTRACTOR, IN THE EXECUTION, SUPERVISION AND OPERATIONS GROWING

OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OF THIS CONTRACT,

AND COMPANY WILL BE REQUIRED TO PAY ANY JUDGMENT WITH COSTS WHICH

MAY BE OBTAINED AGAINST CITY OR ANY OF ITS OFFICERS, AGENTS OR

EMPLOYEES, INCLUDING ATTORNEY'S FEES. THE OBLIGATIONS CONTAINED IN THIS

SECTION 4 SHALL SURVIVE THE TERMINATION OF THIS CONTRACT.

4.1. COMPANY SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND CITY AND

ALL OF CITY'S OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS,

CLAIMS, DAMAGES, PERSONAL INJURIES, ACCIDENTAL DEATH, PROPERTY DAMAGE,

LOSSES, AND EXPENSES OF ANY CHARACTER WHATSOEVER INCLUDING ATTORNEY'S

FEES, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES RECEIVED OR

SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, ON ACCOUNT OF ANY

NEGLIGENT ACT OF CITY, CITY'S OFFICERS, AGENTS AND EMPLOYEES, WHETHER

SUCH NEGLIGENT ACT WAS THE SOLE PROXIMATE CAUSE OF THE INJURY OR

DAMAGE OR A PROXIMATE CAUSE JOINTLY AND CONCURRENTLY WITH COMPANY

OR COMPANY'S EMPLOYEES, AGENTS OR SUBCONTRACTORS NEGLIGENCE IN THE

EXECUTION, SUPERVISION AND OPERATIONS GROWING OUT OF OR IN ANY WAY

CONNECTED WITH THE PERFORMANCE OF THIS CONTRACT, AND COMPANY WILL BE

REQUIRED TO PAY ANY JUDGMENT WITH COSTS WHICH MAY BE OBTAINED AGAINST

CITY OR ANY OF ITS OFFICERS, AGENTS OR EMPLOYEES, INCLUDING ATTORNEY'S

FEES. THE OBLIGATIONS CONTAINED IN THIS SECTION 4.1 SHALL SURVIVE THE

TERMINATION OF THIS CONTRACT.

4.2. COMPANY AGREES THAT IT WILL INDEMNIFY AND SAVE CITY HARMLESS FROM

ALL CLAIMS GROWING OUT OF ANY DEMANDS OF SUBCONTRACTORS, LABORERS,

WORKMEN, MECHANICS, MATERIALMEN, AND FURNISHERS OF MACHINERY AND

PARTS THEREOF, EQUIPMENT, POWER TOOLS AND ALL SUPPLIES, INCURRED IN THE

FURTHERANCE OF THE PERFORMANCE OF THIS CONTRACT. WHEN CITY SO DESIRES,

COMPANY SHALL FURNISH SATISFACTORY EVIDENCE THAT ALL OBLIGATIONS OF

THE NATURE HEREINABOVE DESIGNATED HAVE BEEN PAID, DISCHARGED OR

WAIVED. COMPANY, ITS SURETIES AND INSURANCE CARRIERS SHALL DEFEND,

INDEMNIFY AND SAVE HARMLESS CITY AND ALL OF ITS OFFICERS, AGENTS AND

EMPLOYEES FROM ALL SUITS, ACTIONS, OR CLAIMS OF ANY CHARACTER

WHATSOEVER, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES

RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, ARISING FROM

ANY ACT OF COMPANY OR ANY SUBCONTRACTOR, THEIR AGENTS OR EMPLOYEES, IN

THE EXECUTION AND SUPERVISION OF THIS CONTRACT, AND WILL BE REQUIRED TO

PAY ANY JUDGMENT WITH COSTS WHICH MAY BE OBTAINED AGAINST CITY OR ANY

OF ITS OFFICERS, AGENTS, OR EMPLOYEES INCLUDING ATTORNEY'S FEES. THE

OBLIGATIONS CONTAINED IN THIS SECTION 4.2 SHALL SURVIVE THE TERMINATION

OF THIS CONTRACT.

5. COMPANY hereby waives all rights to the recovery of any attorney’s fees awarded as a result of any action brought under the Texas Declaratory Judgment Act relating to this Contract and:

a. damage to other work or CITY's property or equipment; or

b. default of COMPANY in performance of this Contract.

6. The term of this Contract shall be for a period commencing on October ______, 2025 and terminating on December 31, 2025, unless sooner terminated as provided herein.

7. COMPANY shall:

a. comply with all applicable laws, rules, codes and regulations of Local, State and U.S.

Governments;

b. have a designated supervisor on the job site at all times work is in progress;

c. make no changes in the scheduled work without written authorization from CITY;

d. permit and facilitate inspection of the work in progress by CITY;

e. not willfully discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex or national origin;

f. be responsible for any damage caused by COMPANY to CITY property and repair such damage at his own cost;

In the event COMPANY is in noncompliance with any of the covenants or provisions of this

Contract, and such noncompliance is not cured within five (5) days after receipt of written notice from

CITY, CITY may terminate this Contract at the end of said five-day period, and may seek such other remedies as may be available in law or equity.

8. Failure of CITY to declare any default immediately upon occurrence thereof, or delay in taking any action in connection therewith, shall not waive COMPANY's responsibility to rectify such default, but

CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity.

9. Any notice which may or shall be given under the terms of this Contract shall, unless otherwise provided herein, be in writing and shall be either delivered by hand or sent by United States Registered or

Certified Mail, postage prepaid:

To CITY:

(If mailed) P. O. Box 1152

Midland, Texas 79702

(If hand delivered) 300 North Loraine

Suite 220

Midland, Texas 79701

To COMPANY.

The above addresses may be changed at any time by providing written notice to the other party.

10. GOVERNING LAW AND VENUE: This Contract shall be governed by the laws of the State of

Texas. All performances made pursuant to this Contract shall be deemed to have occurred in Midland

County, Texas. The obligations and undertakings of each of the parties to this Agreement shall be deemed to have occurred in Midland County, Texas. Exclusive venue for any claims, suits or any other action arising from or connected in any way to this Contract or the performance of this Contract shall be in

Midland County, Texas.

11. This obligation and undertakings of each of the parties to this Contract shall be performed in

Midland County, Texas.

12. This Contract may not be altered, changed or amended, except by an instrument in writing signed by all parties hereto.

13. This Contract and all incorporated documents referenced herein constitute the entire agreement among CITY and COMPANY; no prior written or contemporaneous oral promises or representations shall be binding.

14. RELEASE: NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN,

COMPANY HEREBY RELEASES, ACQUITS, RELINQUISHES AND FOREVER DISCHARGES

CITY AND CITY’S COUNCIL MEMBERS, EMPLOYEES, AND OFFICERS FROM ANY AND

ALL DEMANDS, CLAIMS, DAMAGES OR CAUSES OF ACTION OF ANY KIND

WHATSOEVER THAT COMPANY HAS OR MIGHT HAVE IN THE FUTURE, INCLUDING,

BUT NOT LIMITED TO, BREACH OF CONTRACT, QUANTUM MERUIT, CLAIMS UNDER

THE DUE PROCESS AND TAKINGS CLAUSES OF THE TEXAS AND UNITED STATES

CONSTITUTIONS, TORT CLAIMS, OR CITY’S NEGLIGENCE. THE OBLIGATIONS

CONTAINED IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS

CONTRACT.

15. WAIVER OF ATTORNEY FEES: BY EXECUTING THIS CONTRACT, COMPANY

AGREES TO WAIVE AND DOES HEREBY KNOWINGLY, CONCLUSIVELY, VOLUNTARILY

AND INTENTIONALLY WAIVE ANY CLAIM IT HAS OR MAY HAVE IN THE FUTURE

AGAINST CITY REGARDING THE AWARD OR ATTORNEY’S FEES, WHICH ARE IN ANY

WAY RELATED TO THIS CONTRACT, OR THE CONSTRUCTION, INTERPRETATION OR

BREACH OF THIS CONTRACT. COMPANY SPECIFICALLY AGREES THAT IF COMPANY

BRINGS OR COMMENCES ANY LEGAL ACTION OR PROCEEDING RELATED TO THIS

CONTRACT, THE CONSTRUCTION, INTERPRETATION, VALIDITY OR BREACH OF THIS

CONTRACT, INCLUDING, BUT NOT LIMITED TO, ANY ACTION PURSUANT TO THE

PROVISIONS OF THE TEXAS UNIFORM DECLARATORY JUDGMENTS ACT (TEXAS CIVIL

PRACTICE AND REMEDIES CODE SECTION 37.001, ET SEQ., AS AMENDED), OR

CHAPTER 271 OF THE TEXAS LOCAL GOVERNMENT CODE, COMPANY AGREES TO

ABANDON, WAIVE AND RELINQUISH ANY AND ALL RIGHTS TO THE RECOVERY OF

ATTORNEY’S FEES TO WHICH COMPANY MIGHT OTHERWISE BE ENTITLED.

COMPANY AGREES THAT THIS IS THE VOLUNTARY AND INTENTIONAL

RELINQUISHMENT AND ABANDONMENT OF A PRESENTLY-EXISTING KNOWN RIGHT.

COMPANY ACKNOWLEDGES THAT IT UNDERSTANDS ALL TERMS AND CONDITIONS

OF THIS CONTRACT. COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT

THERE WAS AND IS NO DISPARITY OF BARGAINING POWER BETWEEN CITY AND

COMPANY. THIS SECTION SHALL NOT BE CONSTRUED OR INTERPRETED AS A

WAIVER OR GOVERNMENTAL IMMUNITY AND SHALL SURVIVE THE TERMINATION

OF THIS CONTRACT.

COMPANY IS RELYING ON ITS OWN JUDGMENT. COMPANY HAD THE

OPPORTUNITY TO DISCUSS THIS CONTRACT WITH COMPETENT LEGAL COUNSEL

PRIOR TO ITS EXECUTION.

16. NOTICE OF ALLEGED BREACH; STATUTORY PREREQUISITES: As a condition precedent to filing suit for alleged damages incurred by an alleged breach of an express or implied provision of this Contract, COMPANY or its legal representative, shall give the City Manager, or any other reasonable official of CITY, notice in writing (consisting of one (1) original and seven (7) copies of notice attached to a copy of this Contract) of such damages, duly verified, within one hundred twenty (120) days after the same has been sustained. The discovery rule does not apply to the giving of this notice. The notice shall include when, where and how the damages occurred, the apparent extent thereof, the amount of damages sustained, the amount for which COMPANY shall settle, the physical and mailing addresses of

COMPANY at the time and date the claim was presented and the physical and mailing addresses of

COMPANY for the six (6) months immediately preceding the occurrence of such damages, and the names and addresses of the witnesses upon whom COMPANY relies to establish its claim; and a failure to provide such written notification within the time and manner provided herein shall exonerate, excuse and except CITY from any liability whatsoever. CITY is under no obligation to provide notice to COMPANY that COMPANY’s notice is insufficient. CITY reserves the right to request additional information regarding the claim. Said additional information shall be supplied within thirty (30) days after receipt of notice.

The statutory prerequisites outlined herein constitute jurisdictional requirements pursuant to

Section 271.154 of the Texas Local Government Code and Section 311.034 of the Texas Government

Code. Notwithstanding any other provision to the contrary, COMPANY’s failure to comply with the requirements of this Section shall perpetually bar COMPANY’s claim for damages under Chapter 271 of the Texas Local Government Code, and Section 311.034 of the Texas Government Code, regardless if

CITY has actual or constructive notice or knowledge of said claim or alleged damages. COMPANY agrees that the requirements of this entire Contract are reasonable. The provisions and obligations of this

Section shall survive the termination of this Contract.

17. GOVERNMENTAL IMMUNITY: By executing this Contract CITY is not waiving its right of governmental immunity. CITY is retaining its immunity from suit. CITY is not granting consent to be sued by legislative resolution or action.

THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY.

18. ASSIGNMENTS: COMPANY shall not, either directly or indirectly assign all or any part of this

Contract or any interest, right, or privilege herein, without the prior consent of CITY. The issue on whether or not to grant consent to an assignment is in the sole discretion of CITY.

19. THIRD-PARTY BENEFICIARY: CITY’s approval of this Contract does not create a third-party beneficiary. There is no third-party beneficiary to this Contract. No person or entity who is not a party to this Contract shall have any third-party beneficiary or other rights hereunder.

20. INDEPENDENT CONTRACTOR: COMPANY shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant, or employee of CITY.

COMPANY shall have exclusive control of, and the exclusive right to control the details of the services and work to be performed hereunder, and all persons performing the same. COMPANY shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors and the doctrine of respondent superior shall not apply as between CITY and COMPANY, its officers, agents, employees, contractors and subcontractors. Nothing in this Contract shall be construed as creating a partnership or joint enterprise between CITY and COMPANY. No person performing any of the work and services described hereunder by COMPANY shall be considered an officer, agent, servant or employee of

CITY. Further, it is specifically understood and agreed that nothing in this Contract is intended or construed as creating a “Community of Pecuniary Interest” or an “Equal Right of Control” which would give rise to vicarious liability.

21. CONIDERATION: The terms of this Contract are supported by good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties named herein.

22. INSURANCE: COMPANY shall at all times during the term of this Contract maintain and keep in full force and effect insurance in the following types and minimum amounts with companies authorized to do business in the State of Texas:

Commercial General Liability (including Contractual liability):

-Personal Injury: $1,000,000.00 per person

$1,000,000.00 per occurrence

-Property Damage: $500,000.00 per occurrence

Business Automobile Liability: $250,000.00 combined single limit -

Personal Injury and Property Damage

Worker’s Compensation: Statutory limits

Employers’ Liability: $500,000.00 per accident or occurrence

The Commercial General Liability shall be on a per project aggregate, including completed operations, and shall be on an occurrence basis.

The Business Automobile Liability insurance provided by COMPANY shall cover any auto for bodily injury and property damage, including owned vehicles, hired and non-city vehicles, and employee non-ownership, and the amount of such policy shall be a minimum of $250,000.00 covering any vehicle used for the execution of the work that is the subject of this Contract.

The Workers’ Compensation coverage provided by COMPANY shall inure to the benefit of employees injured during the course and scope of their employment by COMPANY pursuant to this

Contract. All insurance required pursuant to this Contract shall provide for a waiver of subrogation in favor of CITY. All insurance required pursuant to this Contract, except for Worker’s Compensation

Insurance, shall name CITY as an additional insured on a claims occurred basis. CITY shall be provided the notice by COMPANY’s insurance provider not later than thirty (30) days prior to any reduction or termination of such coverage.

COMPANY shall contractually require all contractors, subcontractors, and sub-subcontractors that work on any portion of the work that is the subject of this Contract to obtain insurance coverage that meets or exceeds the policy requirements and minimum amounts specified herein. All contractors, subcontractors, and sub-subcontractors shall obtain insurance policies that provide blanket waivers of subrogation in favor of CITY of Midland and policies that name CITY of Midland as an additional insured on a claims occurred basis (except workers compensation).

The parties agree that, prior to the execution of the Contract, COMPANY shall provide one or more certificates of insurance specifically stating that these requirements have been met and subject to the approval of CITY. CITY shall not be required to provide any insurance whatsoever pursuant to this

Contract.

COMPANY certifies that the certificate of insurance provided as required herein complies with the requirements of Chapter 1811 of the Texas Insurance Code.

23. COMPLIANCE: COMPANY agrees that it shall comply with Texas Government Code Section

2252.908, et seq., as amended. COMPANY agrees that it shall comply with Texas Local Government

Code Section 176.006, et seq., as amended.

24. To the extent that Sections 2271.002 and 2274.002 of the Texas Government Code (collectively, the “Anti-Boycott Statutes”) apply to this Contract, Company hereby verifies:

that Company does not boycott Israel and will not boycott Israel during the term of this Contract;

that Company does not boycott energy companies and will not boycott energy companies during the term of this Contract; and that Company does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and will not discriminate during the term of this Contract against a firearm entity or firearm trade association.

To the extent that the Anti-Boycott Statutes do not apply to this Contract, such verification is not required, and Company shall be deemed to have not made such verification.

25. RECORDS RETENTION AND PRODUCTION OF INFORMATION: To the extent that this

Contract constitutes a contract described by Section 552.371 of the Texas Government Code, COMPANY shall: (i) preserve all contracting information related to this Contract as provided by the records retention requirements applicable to CITY for the duration of this Contract; (ii) promptly provide to CITY any contracting information related to the Contract that is in the custody or possession of COMPANY on request of CITY; and (iii) on completion of the Contract, either: (a) provide at no cost to CITY all contracting information related to the Contract that is in the custody or possession of COMPANY; or (b) preserve the contracting information related to the Contract as provided by the records retention requirements applicable to CITY.

26. PUBLIC INFORMATION: To the extent that this Contract is a contract described by Section

552.371 of the Texas Government Code, COMPANY agrees as follows in accordance with Section

552.372(b) of the Texas Government Code: The requirements of Subchapter J, Chapter 552, Government

Code, may apply to this Contract, and COMPANY agrees that the Contract can be terminated if

COMPANY knowingly or intentionally fails to comply with a requirement of that subchapter.

27. CONFLICT OF TERMS: If a conflict of terms or language exists between: (i) any of the provisions of this Contract and (ii) any of the provisions contained in any exhibit(s) attached to this

Contract, precedence shall be given to the provisions of this Contract. For the avoidance of any doubt, the provisions contained in this Contract shall supersede any and all conflicting provisions contained in any exhibit(s) attached hereto. Furthermore, the parties acknowledge and agree that any provision contained in an exhibit(s) attached to this Contract that imposes an additional express or implied obligation on CITY is hereby made void and of no force or effect. CITY’s sole and exclusive obligations under this Contract are contained in the provisions of this Contract that precede the signature page(s), which evidences the parties’ execution.

EXECUTED IN DUPLICATE the day and year first above mentioned.

THE CITY OF MIDLAND, TEXAS

Tommy Gonzalez, City Manager

ATTEST

Marcia Bentley-German, City Governance Officer/City Secretary

APPROVED ONLY AS TO FORM

Nicholas Toulet, Interim City Attorney

COMPANY:

By: ____________________________________

Name: ____________________________

Title: __________________________________

STATE OF_______________§

COUNTY OF_____________§

BEFORE ME, the undersigned authority, on this ____ day of __________, 2025 personally appeared, , an officer of ________________, known to me to be the person and official whose name is subscribed to the forgoing instrument, and acknowledged to me that he executed the same as the act and deed of said corporation, for the purposes and consideration therein expressed, and in the capacity therein stated.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 2025.

Notary Public, State of _________________________