2-Attachment A Standard Terms and Conditions SERVICES .docx

ATTACHMENT A

SNYDERVILLE BASIN CEMETERY DISTRICT

STANDARD TERMS AND CONDITIONS FOR SERVICES

This is for a contract for services (including professional services) meaning the furnishing of labor, time, or effort by a contractor.

1. DEFINITIONS: The following terms shall have the meanings set forth below:

2. GOVERNING LAW AND VENUE: This Contract has been and shall be construed as having been made and delivered within the State of Utah, and it is agreed by each Party hereto that this Contract shall be governed by the laws, rules, and regulations of Summit County and the State of Utah, both as to interpretation and performance. Any action of law, suit in equity or judicial proceeding arising from this Contract shall be brought in a court of competent jurisdiction in the State of Utah. Venue shall be in Summit County, the Silver Summit District Court, Third Judicial District.

3. LAWS AND REGULATIONS: At all times during this Contract, Contractor and all procurement Items delivered and/or performed under this Contract will comply with all applicable Summit County, state and federal constitutions, laws, rules, ordinances, codes, orders, and regulations, including applicable licensure and certification requirements. If this Contract is funded by federal funds, either in whole or in part, then any federal regulation related to the federal funding, including CFR Appendix II to Part 200, will supersede this Attachment A.

4. RECORDS ADMINISTRATION: Contractor shall maintain or supervise the maintenance of all Records and shall maintain such accounting procedures and practices as may be necessary to assure proper accounting of all funds paid pursuant to this Contract. These Records shall be retained by Contractor for at least six (6) years after final payment, or until all audits initiated within the six (6) years have been completed, whichever is later. Contractor shall, at such times and in such form as the District may require, make available for examination by the District, its authorized representatives, the State Auditor, Federal Auditors or other governmental officials authorized by law to monitor this Contract, all such Records. The District may, at its discretion, conduct an audit at its expense, using its own or outside auditors, of the Contractor’s activities, which relate directly or indirectly to this Contract.

5. CERTIFY REGISTRATION AND USE OF EMPLOYMENT “STATUS VERIFICATION SYSTEM”: The Status Verification System, also referred to as “E-verify,” applies to contracts issued through a request for proposal process and to sole source contracts.

6. CONFLICT OF INTEREST: Contractor represents that none of its officers or employees are officers or employees of the District, unless disclosure has been made to the District.

7. INDEPENDENT CONTRACTOR:

8. INDEMNITY:

9. EMPLOYMENT PRACTICES: Contractor agrees to abide by the Summit County Code, Title 1, Chapter 15B and federal and state employment laws, including: (a) Title VI and VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), which prohibits discrimination against any employee or applicant for employment or any applicant or recipient of services, on the basis of race, religion, color, or national origin; (b) Executive Order No. 11246, as amended, which prohibits discrimination on the basis of sex; (c) 45 CFR 90, which prohibits discrimination on the basis of age; and (d) Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disabilities. Contractor further agrees to abide by any other laws, regulations, or orders that prohibit the discrimination of any kind by any of Contractor’s employees. If any assignment or subcontracting has been authorized by the District, said assignment or subcontract shall include appropriate safeguards against discrimination. Contractor shall take such action as may be required to ensure full compliance with the provisions of this section.

10. AMENDMENTS: This Contract may only be amended by the mutual written agreement of the Parties, which amendment will be attached to this Contract. Automatic renewals will not apply to this Contract, even if listed elsewhere in this Contract.

11. DEBARMENT: Contractor certifies that it is not presently nor has ever been debarred, suspended, or proposed for debarment by any governmental department or agency, whether international, national, state, or local. Contractor must notify the District within thirty (30) days if debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any contract by any governmental entity during this Contract.

12. TERMINATION:

13. NONAPPROPRIATION OF FUNDS, REDUCTION OF FUNDS, OR CHANGES IN LAW:

14. MODIFICATIONS TO TASKS: All work proposed by Contractor is based on current government ordinances and fees in effect as of the date of this Contract. Any changes to current government ordinances and fees which affect the scope or cost of the services proposed may be billed as an “extra costs” or deleted from the scope, at the option of the District.

15. SUSPENSION OF WORK: Should circumstances arise which would cause the District to suspend Contractor’s responsibilities under this Contract, but not terminate this Contract, this will be done by written notice. Contractor’s responsibilities may be reinstated upon advance formal written notice from the District.

16. SALES TAX EXEMPTION: The Services under this Contract will be paid for from the District’s funds and used in the exercise of the District’s essential functions as a political subdivision of the State of Utah. Upon request, the District will provide Contractor with its sales tax exemption number. It is Contractor’s responsibility to request the District’s sales tax exemption number. It is also Contractor’s responsibility to ascertain whether any tax deduction or benefits apply to any aspect of this Contract.

17. CONTRACTOR’S INSURANCE RESPONSIBILITY: The Contractor shall maintain the following insurance coverage:

· Consulting;

· Data Processing;

· Programming;

· System Integration;

· Hardware or Software Development;

· Installation;

· Distribution or Maintenance;

· Systems Analysis or Design;

· Training; and

· Staffing or Other Support Services.

This policy shall include coverage for third Party fidelity, including cyber theft.

18. PUBLIC INFORMATION: Contractor agrees that this Contract, related purchase orders, related pricing documents, and invoices will be public documents and may be available for public and private distribution in accordance with the State of Utah Government Records Access and Management Act (GRAMA), Utah Code Title 63G, Chapter 2, as amended. Contractor gives the District express permission to make copies of this Contract, related sales orders, related pricing documents, and invoices in accordance with GRAMA. Except for sections identified in writing by Contractor and expressly approved by the District, Contractor also agrees that the Contractor’s Proposal to the Solicitation will be a public document, and copies may be given to the public as permitted under GRAMA. The District is not obligated to inform Contractor of any GRAMA requests for disclosure of this Contract, related purchase orders, related pricing documents, or invoices.

19. DELIVERY: All deliveries under this Contract will be F.O.B. destination with all transportation and handling charges paid for by Contractor. Responsibility and liability for loss or damage will remain with Contractor until final inspection and acceptance when responsibility will pass to the District, except as to latent defects or fraud. Contractor shall strictly adhere to the delivery and completion schedules specified in this Contract.

20. ACCEPTANCE AND REJECTION:

21. INVOICING: Contractor will submit invoices within thirty (30) days of Contractor’s performance of the Services to the District. The Contract number shall be listed on all invoices, freight tickets, and correspondence relating to this Contract. The prices paid by the District will be those prices listed in this Contract, unless Contractor offers a prompt payment discount within its Proposal or on its invoice. The District has the right to adjust or return any invoice reflecting incorrect pricing.

22. PAYMENT: Payments are to be made within thirty (30) days after a correct invoice is received. All payments to Contractor will be remitted by mail, electronic funds transfer, or District (major credit card). If payment has not been made after sixty (60) days from the date a correct invoice is received by the District, then interest may be added by Contractor as prescribed in the Utah Prompt Payment Act. The acceptance by Contractor of final payment, without a written protest filed with the District within ten (10) business days of receipt of final payment, shall release the District from all claims and liability to the Contractor. The District’s payment for the Services shall not be deemed an acceptance of the Services and is without prejudice to any and all claims that the District may have against Contractor. The District will not allow the Contractor to charge end users electronic payment fees of any kind.

23. TIME IS OF THE ESSENCE: The Services shall be completed by any applicable deadline stated in this Contract. For all Services, time is of the essence. Contractor shall be liable for all reasonable damages to the District, and anyone for whom the District may be liable as a result of Contractor’s failure to timely perform the Services required under this Contract.

24. CHANGES IN SCOPE: Any changes in the scope of the Services to be performed under this Contract shall be in the form of a written amendment to this Contract, mutually agreed to and signed by both Parties, specifying any such changes, fee adjustments, any adjustment in time of performance, or any other significant factors arising from the changes in the scope of Services.

25. PERFORMANCE EVALUATION: The District may conduct a performance evaluation of Contractor’s Services, including Contractor’s Subcontractors. Results of any evaluation may be made available to Contractor upon request.

26. STANDARD OF CARE AND WARRANTIES: The Services of Contractor and its Subcontractors shall be performed in accordance with the standard of care exercised by licensed members of their respective professions having substantial experience providing similar services which similarities include the type, magnitude, and complexity of the Services that are the subject of this Contract. Contractor shall be liable to the District for claims, liabilities, additional burdens, penalties, damages, or third-party claims (e.g., another Contractor’s claim against the District) by wrongful acts, errors, or omissions that do not meet this standard of care.

27. REVIEWS: The District reserves the right to perform plan checks, plan reviews, other reviews, and/or comment upon the Services of Contractor. Such reviews do not waive the requirement of Contractor to meet all of the terms and conditions of this Contract.

28. ASSIGNMENT: Contractor may not assign, sell, transfer, subcontract or sublet rights, or delegate any right or obligation under this Contract, in whole or in part, without the prior written approval of the District. It is further agreed that said approval must be sought in writing by the Contractor not less than thirty (30) days prior to the date of any proposed assignment or subcontract. Any assignment or subcontract made without the prior express written approval of the District shall be deemed null and void.

29. REMEDIES: Any of the following events will constitute cause for the District to declare Contractor in default of this Contract: (a) Contractor’s non-performance of its contractual requirements and obligations under this Contract; or (b) Contractor’s material breach of any term or condition of this Contract. The District may issue a Default Notice providing a ten (10) day period in which Contractor will have an opportunity to cure. Time allowed for cure will not diminish or eliminate Contractor's liability for damages. If the default remains after Contractor has been provided the opportunity to cure, the District may do one or more of the following: (i) exercise any remedy provided by law or equity; (ii) terminate this Contract by giving a Termination Notice; (iii) impose liquidated damages, if liquidated damages are listed in this Contract; (iv) debar/suspend Contractor from receiving future contracts from the District; or (v) demand a full refund of any payment that the District has made to Contractor under this Contract for Services that do not conform to this Contract.

30. FORCE MAJEURE: Neither Party to this Contract will be held responsible for delay or default caused by fire, riot, act of God, and/or war which is beyond that Party's reasonable control. The District may terminate this Contract after determining such delay will prevent successful performance of this Contract.

31. CONFIDENTIALITY:

32. PUBLICITY: Contractor shall submit to the District for written approval all advertising and publicity matters relating to this Contract. It is within the District’s sole discretion whether to provide approval, which must be done in writing.

33. INDEMNIFICATION RELATING TO INTELLECTUAL PROPERTY: Contractor will indemnify and hold the District harmless from and against any and all damages, expenses (including reasonable attorneys' fees), claims, judgments, liabilities, and costs in any action or claim brought against the District for infringement of a third party’s copyright, trademark, trade secret, or other proprietary right. The Parties agree that if there are any limitations of Contractor’s liability, such limitations of liability will not apply to this section.

34. OWNERSHIP IN CUSTOM DELIVERABLES: In the event that Contractor provides Custom Deliverables to the District, pursuant to this Contract, Contractor grants the ownership in Custom Deliverables, which have been developed and delivered by Contractor exclusively for the District and are specifically within the framework of fulfilling Contractor’s contractual obligations under this Contract. Custom Deliverables shall be deemed work made for hire, such that all intellectual property rights, title and interest in the Custom Deliverables shall pass to the District, to the extent that the Custom Deliverables are not recognized as work made for hire, Contractor hereby assigns to the District any and all copyrights in and to the Custom Deliverables, subject to the following:

Custom Deliverables, not including Contractor’s Intellectual Property Rights, Background IP, and Residual IP, may not be marketed or distributed without written approval by the District.

Contractor agrees to grant to the District a perpetual, irrevocable, royalty-free license to use Contractor’s Background IP, Utilities, and Residual IP, as defined above, solely for the District to use the Custom Deliverables. The District reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use and to authorize others to use, for the District’s internal purposes, such Custom Deliverables. For the goods delivered that consist of Contractor’s scripts and code and are not considered Custom Deliverables or Work Product, for any reason whatsoever, Contractor grants the District a non-exclusive, non- transferable, irrevocable, perpetual right to use, copy, and create derivative works from such, without the right to sublicense, for the District’s internal business operation under this Contract. The District may not participate in the transfer or sale of, create derivative works from, or in any way exploit Contractor’s Intellectual Property Rights, in whole or in part.

35. OWNERSHIP IN INTELLECTUAL PROPERTY: The District and Contractor agree that each has no right, title, interest, proprietary or otherwise in the intellectual property owned or licensed by the other, unless otherwise agreed upon by the Parties in writing. All deliverables, documents, records, programs, data, articles, memoranda, and other materials not developed or licensed by Contractor prior to the execution of this Contract, but specifically created or manufactured under this Contract shall be considered work made for hire, and Contractor shall transfer any ownership claim to the District.

36. WAIVER: No failure of the Parties to exercise any power given to it under this Contract, or to insist upon strict compliance by the other Party with any obligation, responsibility, or condition under it, and no custom or practice of the Parties at variance with its terms shall constitute a waiver of that Party's right to demand exact compliance with those terms upon any subsequent default. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving Party.

37. PROCUREMENT ETHICS:

38. MISCELLANEOUS PROVISIONS: The District shall make provision for access to the property and/or project and adjacent properties, if necessary for performing the agreed upon services.

39. DISPUTE RESOLUTION: Prior to either Party filing a judicial proceeding, the Parties agree to participate in the mediation of any dispute. The District, after consultation with the Contractor, may appoint an expert or panel of experts to assist in the resolution of a dispute. If the District appoints such an expert or panel, the District and Contractor agree to cooperate in good faith in providing information and documents to the expert or panel in an effort to resolve the dispute.

40. GOVERNMENTAL IMMUNITY: The District is a body corporate and politic of the State of Utah, subject to the Governmental Immunity Act of Utah (the “Act”), Utah Code §§ 63G-7-101, et. seq., as amended. The Parties agree that the District shall only be liable within the parameters of the Governmental Immunity Act. Nothing contained in this Contract shall be construed in any way, to modify the limits of liability set forth in that Act or the basis for liability as established in the Act.

41. NOTICE TO RETIREES OF UTAH RETIREMENT SYSTEMS (URS): The District may become a URS “participating employer.” Entering into this Contract with the District may affect a URS retiree’s retirement benefits including, but not limited to, cancellation of the retiree’s “retirement allowance” due to “reemployment” with a “participating employer” pursuant to Utah Code § 49-11-504-505, as amended. In addition, Contractor is required to immediately notify the District if a retiree of URS is the Contractor; or an owner, operator, or principal of the Contractor.

42. INTERPRETATION; NOTICES:

43. CONTRACTOR EMPLOYEES: The District may, at its sole discretion, require the Contractor to remove an employee(s), agent(s), or representative(s) from employment on the Work Product. The Contractor may, however, employ that (those) individual(s) on other non-District related projects.

44. NO THIRD-PARTY BENEFICIARIES: No term or provision of this Contract or the attachments hereto is intended to be, nor shall any such term or provision be construed to be, for the benefit of any person, firm, corporation, or other entity not a party hereto, and no such other person, firm, corporation, or entity shall have any right or cause of action hereunder.

45. SUCCESSORS AND ASSIGNS: This Contract shall inure to the benefit of, and will be binding upon, the Parties hereto and their respective successors and assigns.

46. ORDER OF PRECEDENCE: In the event of any conflict in the terms and conditions in this Contract, the order of precedence shall be: (a) this Attachment A; (b) Contract Cover and Signature page(s); (c) the District’s additional terms and conditions, if any; (d) any other attachments listed on the Contract Cover and Signature Page(s); and (e) Contractor’s terms and conditions that are attached to this Contract, if any. Any provision attempting to limit the liability of Contractor or limit the rights of the District must be in writing and attached to this Contract or it is rendered null and void.

47. SURVIVAL OF TERMS: Termination or expiration of this Contract shall not extinguish or prejudice the District’s right to enforce this Contract with respect to any default of this Contract or defect in the Good(s) that has not been cured.

48. SEVERABILITY:

49. ENTIRE AGREEMENT: This Contract constitutes the entire agreement between the Parties and supersedes any and all other prior and contemporaneous agreements and understandings between the Parties, whether oral or written.

50. ECONOMIC BOYCOTT: Contractor shall not engage in economic boycott activities for purposes that are solely related to furthering social, political or ideological interests as set forth in Utah Code §63G-27-201, or successor law (“Economic Boycott”). Further, if after entering into a Contract with the District, Contractor engages in an Economic Boycott, Contractor shall immediately notify the District in writing of such. The Contractor’s notice may be grounds for termination of this Contract as the sole discretion of the District.