2-003 Professional Collection Services Agreement 26004296 (Example).pdf

PROFESSIONAL COLLECTION SERVICES AGREEMENT

26004296

THIS AGREEMENT is made and effective the _____ day of __________20__, by and between the CITY OF MIDLAND, TEXAS (“CITY”), a home-rule municipal corporation, and

_______________________________________ (“COMPANY”). CITY and COMPANY are at times individually referred to as a “Party” and collectively referred to as the “Parties.”

ARTICLE I. PURPOSE

The purpose of this Agreement is to state the terms and conditions under which

COMPANY shall perform professional legal services for CITY concerning the collection of delinquent Municipal Court fines, fees, court costs, restitution, debts and accounts receivable, and other amounts in accordance with Article 103.0031, Texas Code of Criminal Procedure

(hereinafter referred to as “Fines and Fees”). Said services shall include, but not be limited to, recommendations and legal advice to CITY to take legal enforcement action, representing CITY in any dispute or legal challenge to authority to collect Fines and Fees, defending CITY in litigation or challenges of its collection authority, and representing CITY in collection interests in bankruptcy matters as determined by COMPANY or CITY.

ARTICLE II. SERVICES TO BE PERFORMED

1. COMPANY shall provide those services described in Article I and Exhibit ‘A’ which is attached hereto and incorporated herein for all purposes. CITY authorizes COMPANY to execute all legal documents reasonably necessary to facilitate the services and pursue the collection of

CITY’s claims in connection with the collection of Fines and Fees.

2. To facilitate COMPANY’s performance of the services, all Fines and Fees shall be referred to COMPANY when determined to be delinquent as provided for in Article 103.0031, Code of Criminal Procedure. At least once each month, on a date or dates agreed upon by the

Parties, CITY will provide COMPANY with copies of, or access to, the information and documentation necessary to collect the Fines and Fees subject to this Agreement. CITY shall furnish the information to COMPANY by electronic transmission or magnetic medium.

3. COMPANY shall perform all the services under this Agreement consistent with the same level of skill and care as others in approximately the same region at approximately the same point in time and for

PSA_Revised 1.7.22 Page 2 of 14 the same types of projects. COMPANY represents that any employee who performs services under this

Agreement shall be fully qualified and competent to perform the services described in Exhibit “A”.

4. CITY recognizes and acknowledges that COMPANY owns all rights, title, and interest in certain proprietary software that COMPANY may utilize in conjunction with performing the services provided in the Agreement. CITY agrees and hereby grants to COMPANY the right to use and incorporate any information provided by CITY (“Case or Defendant Information”) to update the databases in this proprietary software, and, notwithstanding that the Case or Defendant

Information has been or shall be used to update the databases in this proprietary software, further stipulates and agrees that CITY shall have no rights or ownership whatsoever in and to the software or the data contained therein, except that CITY shall be entitled to obtain a copy of such data that directly relates to CITY’s accounts at any time. COMPANY agrees that it shall not share or disclose any specific confidential Case or Defendant Information with any other company, individual, organization, or agency without the prior written consent of CITY, except as may be required by law or where such information is otherwise publicly available. It is agreed that

COMPANY shall have the right to use Case or Defendant Information for internal analysis, improve the proprietary software and database, and generate aggregate data and statistics that may inherently contain Case or Defendant Information. These aggregate statistics are owned solely by

COMPANY and will generally be used internally. However, these aggregate statistics may be shared with COMPANY’s affiliates, partners, or other third parties to improve COMPANY’s software and services. COMPANY reserves the right to return to CITY all accounts not collected within one (1) year of referral by CITY or identified as being in bankruptcy. Upon return of these accounts, neither Party will have any obligation to the other Party to this Agreement.

ARTICLE III. FINANCIAL CONSIDERATIONS

The compensation is based on a revenue sharing model. CITY agrees to pay COMPANY as specified in the Request for Qualifications for the professional services, which is incorporated herein by reference. The City Manager must approve all additional expenses and reimbursable expenses in advance of such expenses being incurred by COMPANY.

COMPANY shall forward to CITY all cashier’s checks or money orders received by

COMPANY made payable to CITY and any correspondence from the defendants. Cashier’s checks or money orders received by COMPANY, payable to COMPANY, will be deposited daily

PSA_Revised 1.7.22 Page 3 of 14 into COMPANY’s Trust Account. COMPANY may collect the amount due from the defendant by credit card or electronic draft, the funds of which shall be deposited into COMPANY’s Trust

Account. COMPANY shall remit to CITY, weekly, all funds deposited into COMPANY’s Trust

Account, along with an invoice detailing the docket number, name of the defendant, the amount paid by the defendant to COMPANY or directly to CITY, and COMPANY’s fee percentage and fees earned for each case. The remittance from COMPANY to CITY shall include the fees earned by COMPANY on the fines and fees collected. CITY shall be responsible for posting to CITY’s records the payment of all fines and fees and accounts receivable collected pursuant to this

Agreement.

All compensation due to COMPANY shall become the property of COMPANY at the time of payment of the fines and fees by the defendant. CITY shall pay to COMPANY monthly by check all other compensation due to COMPANY arising from cashier’s checks or money orders received by COMPANY made payable to CITY.

ARTICLE IV. TERM

The initial term of this Agreement shall be for five (5) years from ________________ until

_________________________, unless all work under this Agreement is completed sooner or the

Agreement is terminated as provided below. The Agreement shall automatically renew on the anniversary date and continue in full force and effect thereafter from year to year for additional twelve month terms on the same terms and conditions unless either Party delivers written “Notice of

Termination of Agreement” to the other Party of its intent to terminate this contract at least sixty (60) days prior to each anniversary date of this contract.

ARTICLE V. TERMINATION AT WILL

CITY may terminate this Agreement at will, for any or no reason, upon giving COMPANY at least one hundred eighty (180) days’ written notice thereof. The Parties understand and agree that it is in CITY'S sole and absolute discretion to cancel this Agreement during any term set forth in Article IV without penalty to CITY. COMPANY has no expectation and has received no guarantees that this Agreement will not be terminated during the Agreement’s term. The Parties have bargained for the flexibility of terminating this Agreement upon tender of the requisite notice at any time during this Agreement’s term. All work and services under the Agreement shall be suspended upon termination of the Agreement becoming effective.

PSA_Revised 1.7.22 Page 4 of 14

ARTICLE VI. ASSIGNMENT

COMPANY shall not, either directly or indirectly, assign all or any part of this Agreement, or any interest, right or privilege herein, without obtaining CITY’s prior written consent. The issue of whether to grant such consent shall be in the sole and absolute discretion of CITY.

ARTICLE VII. OWNERSHIP AND CONFIDENTIALITY OF DOCUMENTS AND

OTHER WORK PRODUCT

All reports, information and other data (“Instruments of Service”) given to, prepared or assembled by COMPANY under this Agreement, and any other related document or item shall become the sole and exclusive property of CITY. The Instruments of Service shall be promptly delivered, without restriction, to CITY and such other persons or entities as CITY may designate;

provided, however, that COMPANY may make copies of the Instruments of Service for its files.

ARTICLE VIII. INDEPENDENT CONTRACTOR

COMPANY shall perform the Services 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 all persons performing the same. COMPANY shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The Parties acknowledge and agree that the doctrine of respondeat superior shall not apply as between CITY and COMPANY, its officers, agents, employees, contractors and subcontractors. Nothing in this Agreement shall be construed as creating a partnership or joint enterprise between CITY and COMPANY. No person performing the Services shall be considered an officer, agent, servant or employee of CITY. Further, it is specifically understood and agreed that nothing in this Agreement is intended nor shall be construed as creating a “Community of

Pecuniary Interest” or “An Equal Right of Control” that would give rise to vicarious liability.

COMPANY is an independent contractor under this Agreement and shall assume all rights, obligations, and liabilities applicable to it as an independent contractor. CITY does not have the power to direct the order in which the services are performed. CITY shall not have the right to control the means, methods or details of COMPANY’S work. COMPANY shall assume exclusive responsibility for performing the Services, and is entirely free to perorm the Services in its own way.

PSA_Revised 1.7.22 Page 5 of 14

ARTICLE IX. INSURANCE

COMPANY shall at all times during the term of this Agreement 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

Workers’ 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 a claims-occurred basis. This insurance shall name CITY as an additional insured and waive subrogation in favor of CITY.

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 Agreement. This insurance shall name CITY as an additional insured and waive subrogation in favor of CITY.

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 Agreement. The Workers’ Compensation shall waive all rights of subrogation in favor of

CITY.

All insurance required pursuant to this Agreement shall provide for a waiver of subrogation in favor of CITY. All insurance required pursuant to this Agreement, except for Workers’

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 Agreement to obtain

PSA_Revised 1.7.22 Page 6 of 14 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 the City of Midland and policies that name the

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 Agreement, 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 Agreement.

COMPANY certifies that the certificate of insurance provided as required herein complies with the requirements of Chapter 1811 of the Texas Insurance Code. COMPANY shall not use an unapproved certificate of insurance or insert inappropriate language on a certificate. Compliance with state law is the sole responsibility of COMPANY.

Notwithstanding any contrary provision contained herein, the City Manager, in his/her sole and absolute discretion, may modify the insurance requirements contained in this Article.

ARTICLE X. ATTORNEY FEES

BY EXECUTING THIS AGREEMENT, 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 OF ATTORNEY FEES, WHICH ARE IN

ANY WAY RELATED TO THIS AGREEMENT OR THE CONSTRUCTION,

INTERPRETATION, OR BREACH OF THIS AGREEMENT. COMPANY

SPECIFICALLY AGREES THAT IF COMPANY BRINGS OR COMMENCES ANY

LEGAL ACTION OR PROCEEDING RELATED TO THIS AGREEMENT, THE

CONSTRUCTION, INTERPRETATION, VALIDITY OR BREACH OF THIS

AGREEMENT (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 FEES TO WHICH COMPANY MIGHT

PSA_Revised 1.7.22 Page 7 of 14

OTHERWISE BE ENTITLED.

COMPANY AGREES THAT THIS IS A VOLUNTARY AND INTENTIONAL

RELINQUISHMENT AND ABANDONMENT OF A PRESENTLY-EXISTING KNOWN

RIGHT. COMPANY ACKNOWLEDGES THAT IT UNDERSTANDS ALL TERMS AND

CONDITIONS OF THIS AGREEMENT. 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 OF GOVERNMENTAL IMMUNITY.

COMPANY IS RELYING ON ITS OWN JUDGMENT AND HAD THE

OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH COMPETENT LEGAL

COUNSEL PRIOR TO ITS EXECUTION. THE PROVISIONS OF THIS ARTICLE

SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

ARTICLE XI. GOVERNMENTAL IMMUNITY

By executing this Agreement, 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.

ARTICLE XII. NO THIRD-PARTY BENEFICIARY

CITY’s approval of this Agreement does not create a third-party beneficiary. There is no third-party beneficiary to this Agreement. No person or entity who is not a Party to this Agreement shall have any third-party beneficiary or other rights hereunder.

ARTICLE XIII. RELEASE

NOTWITHSTANDING ANY CONTRARY PROVISION CONTAINED HEREIN,

COMPANY HEREBY RELEASES, ACQUITS, RELINQUISHES AND FOREVER

DISCHARGES CITY AND ITS AGENTS, COUNCIL MEMBERS, EMPLOYEES, AND

OFFICERS FROM ANY AND ALL DEMANDS, CLAIMS, DAMAGES, OR CAUSES OF

ACTION OF ANY KIND WHATSOEVER WHICH COMPANY HAS OR MIGHT HAVE

IN THE FUTURE, INCLUDING BUT NOT LIMITED TO BREACH OF AGREEMENT,

QUANTUM MERUIT, CLAIMS UNDER THE DUE PROCESS AND TAKINGS

CLAUSES OF THE TEXAS AND UNITED STATES CONSTITUTIONS, TORT CLAIMS,

PSA_Revised 1.7.22 Page 8 of 14

OR CITY’S NEGLIGENCE. THE PROVISIONS OF THIS ARTICLE SHALL SURVIVE

THE TERMINATION OF THIS AGREEMENT.

ARTICLE XIV. GENERAL PROVISIONS

A. Waiver. No waiver by CITY of a breach of any covenant, condition, or restriction of this Agreement shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other covenant, condition, or restriction contained in this Agreement.

B. Governing Law and Venue. The laws of the State of Texas shall govern, construe and enforce all rights and duties of the Parties, including, but not limited to, tort claims and any contractual claims or disputes arising from or relating in any way to the subject matter of this

Agreement, without regard to conflict of laws and rules that would direct application of the laws of another jurisdiction. All performance and payment made pursuant to this Agreement shall be deemed to have occurred in Midland County, Texas. The obligations and undertakings of the

Parties shall be deemed to have occurred in Midland County, Texas. Exclusive venue for any claim, suit, or other action arising from or connected in any way to this Agreement shall be in

Midland County, Texas.

C. Notice. Any notice or demand made regarding this Agreement shall be made in writing and delivered, either in person or by certified or registered mail, at the addresses provided below.

Notice by mail shall be complete upon deposit of the paper, postage prepaid, in a post office or official depository under the care and custody of the United States Postal Service.

If to CITY: City Manager's Office P.O. Box 1152

Midland, Texas 79702

If to COMPANY: ________________________________

The parties hereto may change the above-designated addresses by giving notice pursuant to the terms of this Section.

D. Severability. If one or more of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if

PSA_Revised 1.7.22 Page 9 of 14 the invalid, illegal, or unenforceable provision were never contained herein.

E. Use of Language. Words in the singular shall be held to include the plural, unless the context otherwise requires.

F. Amendments, Modifications, Alterations. No amendment, modification, or alteration of this Agreement shall be binding unless such is evidenced in writing, dated subsequent to the date of this Agreement, and duly executed by the Parties.

G. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed as original, and all of which shall constitute one and the same instrument.

H. Federal Wage Requirements. If applicable, the Davis-Bacon Act, 29 CFR 5.5, and any related acts or regulations are hereby incorporated by reference and made a part of this Agreement, and all terms and requirements under said statutes and regulations are made terms and conditions of this Agreement, to which the Parties have agreed to be bound.

I. 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

Agreement, COMPANY or its legal representative shall give the City Manager, or any other reasonable official of CITY, written notice (consisting of one (1) original and seven (7) copies of such notice attached to a copy of this Agreement) of such duly-verified damages within one hundred fifty (150) days after the same has been sustained. The discovery rule does not apply to the giving of such 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 will settle, the physical and mailing addresses of COMPANY at the time and date the claim was presented, 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. COMPANY’s failure to so notify the City Manager 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

COMPANY’s receipt of such 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

PSA_Revised 1.7.22 Page 10 of 14

Government Code. Notwithstanding any contrary provision contained herein, COMPANY’s failure to comply with the requirements herein 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 of whether CITY has actual or constructive notice or knowledge of said claim or alleged damages. COMPANY agrees that the requirements of this entire Agreement are reasonable.

J. Prompt Pay Act. The Parties agree that Texas Government Code, Chapter 2251, Payment for Goods and Services does not waive the CITY’s governmental immunity.

K. Compliance. COMPANY shall comply with Texas Government Code § 2252.908, et seq., as amended, and Texas Local Government Code § 176.006, et seq., as amended.

L. Anti-Boycott Statutes. To the extent that Tex. Gov’t Code §§ 2271.002, 2274.002 and

2276.002 apply to this Agreement, COMPANY hereby verifies:

COMPANY does not boycott Israel and will not boycott Israel during the term of this Agreement;

COMPANY does not boycott energy companies and will not boycott energy companies during the term of this Agreement; and

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 Agreement against any firearm entity or firearm trade association.

If Tex. Gov’t Code § 2270.002 does not apply to this Agreement, such verification is not required, and COMPANY shall be deemed to have not made such verification.

M. Records Retention and Production of Information. To the extent that this Agreement is a contract described by Tex. Gov’t Code § 552.371, COMPANY shall: (i) preserve all contracting information related to the Agreement as provided by the records retention requirements applicable to CITY for the duration of the contract; (ii) promptly provide to CITY any contracting information related to the Agreement that is in the custody or possession of COMPANY on request of CITY;

and (iii) on completion of the Agreement, either (a) provide at no cost to CITY all contracting information related to the Agreement that is in the custody or possession of COMPANY, or (b) preserve the contracting information related to the Agreement as provided by the records retention requirements applicable to CITY.

PSA_Revised 1.7.22 Page 11 of 14

N. Public Information. To the extent that this Agreement is a contract described by Tex.

Gov’t Code § 552.371, COMPANY agrees as follows in accordance with Tex. Gov’t Code §

552.372(b): The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract, and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter.

O. Conflict of Terms. If a conflict of terms or language exists between: (i) any of the provisions of this Agreement; and (ii) any of the provisions contained in any exhibit(s) attached to this Agreement, precedence shall be given to the provisions of this Agreement. For the avoidance of any doubt, the provisions contained in this Agreement 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 Agreement 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 Agreement are contained in the provisions of this

Agreement that precede the signature page(s), which evidences the Parties’ execution and acceptance hereof.

P. Iron or Steel Products Statute. Company agrees that all iron or steel products produced through a manufacturing process and used in the project that is the subject of this Agreement shall be produced in the United States in accordance with Government Code § 2252.202, et seq., as amended.

Q. Interpretation. By executing this Agreement, the Parties acknowledge and agree that this Agreement shall not be interpreted or construed against any Party solely because such Party or its legal counsel drafted this Agreement. The Parties have read, understood, and approve of the language and terms set forth herein.

ARTICLE XV. 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

PSA_Revised 1.7.22 Page 12 of 14

OF COMPANY, THEIR 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 AGREEMENT, 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.

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

AGREEMENT, 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.

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 AGREEMENT. WHEN CITY SO DESIRES, COMPANY

SHALL FURNISH SATISFACTORY EVIDENCE THAT ALL OBLIGATIONS OF THE

NATURE HEREINABOVE DESIGNATED HAVE BEEN PAID, DISCHARGED OR

PSA_Revised 1.7.22 Page 13 of 14

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 AGREEMENT, 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 XV SHALL SURVIVE THE TERMINATION OF THIS

AGREEMENT.

[Signature Page(s) Follows]

PSA_Revised 1.7.22 Page 14 of 14

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 AS TO FORM ONLY:

Nicholas Toulet, City Attorney

COMPANY:

By: _____________________________________

Name:_____________________________

Title: ____________________________________

STATE OF ______________ §

COUNTY OF ____________ §

BEFORE ME, the undersigned authority, on this ____ day of __________, 20____ 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 , 20____.

Notary Public, State of Texas