Sample_Agreement.docx

Sample Agreement

AGREEMENT BETWEEN THE CITY OF ST. CLOUD, FLORIDA

AND

THIS AGREEMENT, made this day of 20 , between the City of St. Cloud, a Municipal Corporation of the State of Florida (hereinafter referred to as the “CITY”), 1300 9th Street, St. Cloud, Florida 34769 and (hereinafter referred to as “CONTRACTOR”), (insert address) who, in consideration of the covenants, representations and agreements herein contained, agree as follows:

1. SCOPE OF SERVICES: CONTRACTOR agrees to furnish all labor, materials, equipment, machinery, tools, apparatus, and transportation to provide said services set forth in ITB No.), attached hereto and incorporated herein as Attachment ‘A.’ In the event of conflict, the terms and conditions of this contract shall prevail. CONTRACTOR agrees to perform the assigned responsibilities and duties faithfully, intelligently, and to the best of its ability, and in the best interest of CITY during the term of this agreement. All services provided shall be performed in accordance with this agreement and with any and all applicable law, professional standards and guidelines.

2. AUTHORIZATION TO PROVIDE SERVICES: CONTRACTOR shall not be authorized to provide any services as set forth in Attachment ‘A’ until such time as CONTRACTOR has received written authorization from the City Manager, or his designee, to perform the specific tasks set forth in bid. CONTRACTOR shall commence work as provided in written Notice to Proceed or Purchase Order. In the event that CONTRACTOR commences any such services without such authorization, CONTRACTOR expressly acknowledges that it shall not be entitled to compensation of any kind related to said services.

3. COMPENSATION: Payments shall be made pursuant to Florida Statute Section 218.70, the Prompt Payment Act, and all City Policies promulgated thereby. The preferred method of payment by the City of St. Cloud is via electronic funds transfer (EFT) per Florida Statute 215 or by P-card.

a. CONTRACTOR shall be compensated in an amount and in accordance with the compensation schedule set forth in Attachment ‘A.’

b. As a condition precedent to receiving payment, CONTRACTOR shall have been authorized to proceed by CITY, shall not be in default of any of the terms and conditions of this agreement, and shall provide to CITY an invoice. The invoice shall be forwarded to CITY, upon completion of work contemplated herein, and signed by an authorized representative of CONTRACTOR. The invoice shall include a statement identifying the period for which it applies and the sub-tasks or portions thereof, completed by CONTRACTOR in accordance with Attachment ‘A.’

c. CITY shall pay all valid, approved and undisputed invoices pursuant to Florida Statute Section 218.70, the Prompt Payment Act. In the event that CITY disputes any invoice submitted, it shall advise CONTRACTOR in writing and said invoice shall not be deemed due and payable under this agreement. Neither the CITY’S review approval or acceptance of, nor payment for, any services provided hereunder shall be construed to operate as a waiver of any rights under this agreement and CONTRACTOR shall be liable to CITY for any and all damages to CITY caused by the CONTRACTOR’S negligent or wrongful performance of any of the services furnished under this agreement.

The acceptance of final payment by CONTRACTOR shall constitute a waiver of all claims by CONTRACTOR except those previously made in writing and identified by CONTRACTOR as unsettled at the time of a request for final payment.

4. TERM. This Agreement shall become effective upon execution by both parties and shall remain in effect for three (3) years, unless terminated as provided for herein. Additionally, the parties agree that the term may be extended, upon mutual agreement, for two (2) additional one-year periods. Requests for a price increase shall be submitted by the CONTRACTOR for review by the CITY sixty (60) days prior to the expiration date. Price increase requests shall be accompanied by the applicable supporting documentation. Any change in price, terms, or conditions shall be accomplished by written amendment to this Agreement.

5. TERMINATION/CANCELLATION OF AGREEMENT. The CITY reserves the right to cancel the agreement without cause with a minimum 30-day written notice. Termination or cancellation of the agreement will not relieve the CONTRACTOR of any obligations or liabilities resulting from any acts committed by the CONTRACTOR prior to the termination of the contract.

The CONTRACTOR may cancel the resulting agreement with ninety (90) days of written notice to the CITY. Failure to provide proper notice to the CITY may result in the CONTRACTOR being barred from future business with the CITY.

Termination for Default. The CITY shall notify, in writing, the CONTRACTOR of deficiencies or default in the performance of its duties under the Agreement. Three separate documented instances of deficiency or failure to perform in accordance with the specifications contained herein shall constitute cause for termination for default. It shall be at the CITY’s discretion whether to exercise the right to terminate. CONTRACTOR shall not be found in default for events arising due to acts of God.

Termination for City’s Convenience. The performance of work under this agreement may be terminated for convenience should the CITY determine it is in the best interest of the CITY. Any such termination shall be effected by the delivery to the CONTRACTOR of a Notice of Termination specifying the extent to which performance of work under the agreement is terminated and the date upon which such termination becomes effective. Upon such termination for convenience, CONTRACTOR shall be entitled to payment, in accordance with the payment provisions, for services rendered up to the termination date and the CITY shall have no other obligations to CONTRACTOR. CONTRACTOR shall be obligated to continue performance of agreement services, in accordance with the agreement, until the termination date and shall have no further obligation to perform services after the termination date.

Termination for Contracting with Scrutinized Companies City may terminate this contract at any time in accordance with Section 238.135 Florida Statutes, as may be amended.

6. WARRANTY OF CONTRACTOR. CONTRACTOR does hereby expressly warrant and guarantee the services provided hereunder from any and all defects, failures, faulty construction, inconsistency with plans, or damage, other than that resulting from reasonable wear and tear or actions of third parties, for a period of one year from the acceptance of the work by CITY. In the event that such a claim occurs, CONTRACTOR shall immediately act to repair, replace, and restore the damaged work, or, if applicable, reconstruct the work to make it completely and strictly comply with the agreement documents. All warranty services provided hereunder shall be performed at CONTRACTOR’S sole expense, including materials and labor. It is expressly agreed and understood that this warranty shall not apply to materials and equipment normally expected to deteriorate or wear out or become subject to normal repair and replacement before their condition is discovered. Additionally, CONTRACTOR shall not be required to do normal maintenance work under this provision. Failure of the CONTRACTOR to substantially act within thirty (30) days of notice of a claim hereunder, shall entitle CITY, at its sole option, to replace or repair the subject defect and to recover the reasonable costs of said repair from CONTRACTOR. The enforcement of the warranty provision shall not be deemed a waiver of any rights that CITY may have to declare CONTRACTOR in breach of the terms of this agreement and to pursue any and all available legal remedies.

7. AUTHORIZED REPRESENTATIVE OF THE CITY. During the term of this agreement, CITY shall designate a representative authorized to act on behalf of the CITY, as provided by law, with respect to the project.

8. INSURANCE PROVIDED BY CONTRACTOR. (See attached Sample ACORD form and City Insurance Requirements sheet)

a. Insurance. Except as otherwise specified in this agreement, the CONTRACTOR and all subcontractors of any tier shall be required at their sole cost and expense to maintain in effect at all times during the performance of the work, insurance coverage with limits not less than those set forth below with insurers and under forms of policies satisfactory to the CITY. It shall be the responsibility of the CONTRACTOR and all his subcontractors to maintain adequate insurance coverage and it shall also be the responsibility of the CONTRACTOR to assure and evidence that subcontractors are adequately insured at all times. Failure of the CONTRACTOR and his subcontractors to maintain adequate coverage shall not relieve the CONTRACTOR of any contractual responsibility or obligation.

b. The CONTRACTOR and his subcontractors shall furnish to the CITY such certificates of insurance or endorsements required by the provisions set forth herein. It shall be the responsibility of the CONTRACTOR to maintain adequate insurance coverage and to assure that subcontractors are adequately insured at all times. Failure of the CONTRACTOR and his subcontractors to maintain adequate coverage shall not relieve the CONTRACTOR of any contractual responsibility or obligation. A verification form of such insurance policy shall be filed with the City of St. Cloud within ten (10) days of the execution of the agreement. The certificate of insurance shall list the CITY as additional insured.

c. Certificate of Insurance. At the time of the execution of this agreement and each subcontract, but in any event, prior to commencing work at the job site, the CONTRACTOR and his subcontractors shall furnish the City of St. Cloud with certificates of insurance as evidence that the policies providing the required coverage and limits of insurance are in full force and effect. The certificates shall provide that any company issuing an insurance policy for the work under this agreement shall provide not less than thirty (30) days of advance written notice of cancellation, non-renewal, or material change in the policy of insurance. In addition, the CONTRACTOR shall immediately provide written notice to the CITY upon receipt of notice of cancellation of an insurance policy or a decision to terminate or alter any insurance policy. CITY may deem cancellation or termination of any insurance policy a material breach on the part of the CONTRACTOR and the CONTRACTOR may be held to be in default of his agreement with CITY at the CITY’S option. All certificates of insurance shall clearly state that all applicable requirements have been satisfied including certification that the policies are of the “occurrence” type. Certificates of insurance for the CONTRACTOR and the subcontractors’ furnished insurance and notices of any cancellation, terminations, or alterations of such policies shall be mailed to Procurement Services City of St. Cloud, and 1300 9th Street, St. Cloud, FL 34769.

d. Additional Insured. All insurance furnished under this agreement shall designate the City of St. Cloud as additional insured.

e. All policies shall contain a “cross-liability” or “severability of interest” clause or endorsement. Notwithstanding any other provision of these policies, the insurance afforded shall apply separately to each insured, named insured, or additional insured with respect to any claim, suit or judgment made or brought by or for any other insured, named insured or additional insured with respect to any claim, suit or judgment made or brought by or for any other insured, named insured or additional insured as though a separate policy had been issued to each.

f. Waivers of Subrogation: The CONTRACTOR and his subcontractors shall require their insurance carrier, with respect to all insurance policies, to waive all rights of subrogation against the City of St. Cloud, its Council members, partners, officials, directors, officers, agents, and employees.

g. Comprehensive General Liability. This insurance shall be an occurrence type policy written in comprehensive form and shall protect the CONTRACTOR and his subcontractors and the additional insured against any and all claims arising from bodily injury, sickness, disease or death of any person other than the CONTRACTOR’S employees or damage to property of the CITY or others arising directly or indirectly from or out of the act of omission of the CONTRACTOR or his subcontractors or their agents, employees or subcontractors. This policy shall also include protection against claims insured by usual personal injury liability coverage, a (protective liability) endorsement to ensure the contractual liability assumed by the CONTRACTOR and its subcontractors under the article entitled indemnification and completed operations, products liability, contractual liability, broad form property coverage, XCU, premises/operations, and independent CONTRACTORS (to remain in force for two years after final payment).

h. Worker’s Compensation Insurance. The CONTRACTOR shall take out and maintain during the life of this agreement, workers compensation insurance for all of his employees connected with the work of this project and in case any work is sublet, the CONTRACTOR shall require the subcontractor similarly to provide workers compensation insurance for all of the latter’s employees unless such employees are covered by the protection afforded by the CONTRACTOR. Such insurance shall comply fully with the Florida Workers Compensation Law. In case any class of employees engaged in hazardous work under this agreement at the site of the project is not protected under the workers compensation statute, the CONTRACTOR shall provide adequate insurance, and cause such subcontractor to provide adequate insurance, satisfactory to the owner, for the protection of his employees not otherwise protected.

The insurance companies providing coverage must be rated through the A.M. Best rating guide or internet site at ambest.com. Proof of the carrier’s FSC rate (must be a 7 or better) and proof of the carrier’s best rating (must be A- or better) must be submitted with the Certificate of Insurance.

The City of St. Cloud must be listed as additional insured. You must show the work/event and the dates of the project (both beginning and end dates) along with City of St. Cloud, 1300 9th Street, St. Cloud, FL 34769 for description of operations.

i. General Liability limits are required as follows:

j. Automobile Liability with the following minimum limits:

(If vendor/contractor vehicles will be on City property) $1,000,000

k. Garage Liability with the following minimum limits:

(If work is to be performed on City vehicle at Vendor facility) $1,000,000

l. Excess Liability: (Contractor’s)

This amount may be greater depending on the award of contract amount.

m. Workers Compensation:

1) Liquor Liability – must also include a hold harmless agreement and authorization by the City Council. (if applicable)

2) Builder’s Risk Insurance per project amounts (if applicable)

3) Environmental Insurance (if applicable)

4) Errors and Omissions if Consultant Services (if applicable) Insurance Coverage Not Limitation of Liability: The maintenance of insurance coverage as provided herein shall not be construed to limit nor have the effect of limiting contractor’s liability to city under the provision of any clause or paragraph contained in this agreement.

Public Entities / Municipalities: Sovereign immunity standard should appear in Description of Operations with $100,000 / $200,000 limits. If self funded, rating requirement is waved.

9. INDEMNIFICATION. CONTRACTOR agrees to hold harmless and indemnify, including attorney fees, CITY, its officers, employees and agents against any and all claims, losses, damages or lawsuits for damages or threat thereof, arising from or related to negligent acts, errors or omissions of the CONTRACTOR.

10. INDEPENDENT CONTRACTOR. It is agreed by the parties that at all times and for all purposes within the scope of this agreement, the relationship of CONTRACTOR and CITY is that of an independent contractor.

11. NOTICES. All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended.

CITY: City Manager City of St. Cloud 1300 9th Street St. Cloud, Florida 34769

12. GENERAL PROVISIONS.

A. Attorneys’ Fees. In the event a suit or action is instituted to enforce or interpret any provision of this agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys’ fees at trial or on any appeal, in addition to all other sums provided by law.

B. Waiver. The waiver by CITY of breach of any provision of this agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this agreement.

C. Severability. If any provision of this agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the agreement valid and enforceable under applicable law, the remainder of this agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this agreement shall be valid and enforceable to the fullest extent permitted by applicable law.

D. Amendment. Except for as otherwise provided herein, this agreement may not be modified or amended except by an agreement in writing signed by both parties.

E. Entire Agreement. This agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous agreements between the parties with respect to the performance of services by CONTRACTOR.

F. No Exclusive Contract. Contractor agrees and understands that the contract shall not be construed as an exclusive arrangement and further agrees that the City may, at any time, secure similar or identical products/services at its sole option.

G. Availability of Funds. The obligations of the City of St. Cloud under this agreement are subject to the availability of funds lawfully appropriated for its purpose. All purchases are contingent upon available City of St. Cloud funding.

H. Assignment. This agreement is personal to the parties hereto and may not be assigned by CONTRACTOR, in whole or in part, without the prior written consent of CITY.

I. Venue. The parties agree that the sole and exclusive venue for any cause of action arising out of this agreement shall be Osceola County, Florida.

J. Applicable Law. This agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida.

K. E-VERIFY

1) Definitions:

“Contractor” means a person or entity that has entered or is attempting to enter into a contract with a public employer to provide labor, supplies, or services to such employer in exchange for salary, wages, or other remuneration.

“Subcontractor” means a person or entity that provides labor, supplies, or services to or for a contractor or another subcontractor in exchange for salary, wages, or other remuneration.

2) Effective January 1, 2021, public and private employers, contractors and subcontractors will begin required registration with, and use of the E-verify system in order to verify the work authorization status of all newly hired employees. Vendor/Consultant/Contractor acknowledges and agrees to utilize the U.S. Department of Homeland Security’s E-Verify System to verify the employment eligibility of:

a) All persons employed by Vendor/Consultant/Contractor to perform employment duties within Florida during the term of the contract; and

b) All persons (including subvendors/subconsultants/subcontractors) assigned by Vendor/Consultant/Contractor to perform work pursuant to the contract with the Department. The Vendor/Consultant/Contractor acknowledges and agrees that use of the U.S. Department of Homeland Security’s E-Verify System during the term of the contract is a condition of the contract with the City of Coconut Creek; and

c) By entering into this Contract, the Contractor becomes obligated to comply with the provisions of Section 448.095, Fla. Stat., "Employment Eligibility," as amended from time to time. This includes but is not limited to utilization of the E-Verify System to verify the work authorization status of all newly hired employees, and requiring all subcontractors to provide an affidavit attesting that the subcontractor does not employ, contract with, or subcontract with, an unauthorized alien. The contractor shall maintain a copy of such affidavit for the duration of the contract. Failure to comply will lead to termination of this Contract, or if a subcontractor knowingly violates the statute, the subcontract must be terminated immediately. Any challenge to termination under this provision must be filed in the Circuit Court no later than 20 calendar days after the date of termination. If this contract is terminated for a violation of the statute by the Contractor, the Contractor may not be awarded a public contract for a period of 1 year after the date of termination.

L. Records. CONTRACTOR expressly understands records associated with this project are public records and agrees to comply with Florida’s Public Records law, to include:

1. Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein.

1. Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Florida’s Public Records law or as otherwise provided by law.

1. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

1. Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of the CONTRACTOR upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY.

1. IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTRACTOR SHALL CONTACT THE CITY’S CUSTODIAN OF PUBLIC RECORDS AT CITY CLERK’S OFFICE, 1300 9th STREET, ST. CLOUD, FLORIDA 34769, TELEPHONE 407-957-7300, EMAIL CITYCLERK@STCLOUDFL.GOV.

IN WITNESS WHEREOF, the parties hereto have made and executed this agreement for the purposes herein expressed on the date first above written.

CITY OF ST. CLOUD, FLORIDA (COMPANY NAME)

BY: BY:

City Manager

Print Name/Title

Date: Date:

Print Name/Title

Date: Date: