Sample Service Contract.pdf

SERVICES AGREEMENT

THIS SERVICES AGREEMENT (“Agreement”) is made as of this __ day of ______, 20_ (“Effective Date”), by and between _____________, a ___________ (“Contractor”), with its principal address at _____________, and the CITY OF LARGO, FLORIDA, a municipal corporation (“the City”), whose address is 201 Highland Avenue, Largo, FL 33770 (collectively, “the Parties”).

RECITALS

WHEREAS, the City requested proposals pursuant to RFP # ______(“RFP”) for _____________________ services; and

WHEREAS, Contractor timely submitted an offer in response to the RFP (“Contractor’s Proposal”); and

WHEREAS, based upon the City’s assessment of Contractor’s Proposal and the proposals of other proposers, the City selected Contractor to provide the Services as defined herein; and

WHEREAS, the Contractor represents that it has the experience, expertise and capacity to perform the Services in accordance with the City’s needs and schedule and as set forth in the RFP.

NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

1. RECITALS. The above recitals are true and correct and incorporated herein by reference.

2. DEFINITIONS. All terms not defined herein, shall have the meaning set forth in the RFP.

3. CONTRACT DOCUMENTS. The “Contract Documents” shall mean and refer to this Agreement, including all exhibits attached hereto, the RFP, including all exhibits attached thereto, including any and all duly executed and issued addenda, and Contractor’s Proposal.

All of the foregoing are incorporated herein by reference and are made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities or conflicts between this Agreement, with the Exhibits, and the RFP or Contractor’s Proposal, this Agreement takes precedence over the RFP and the Contractor’s Proposal and any inconsistency between the Contract Documents will further be resolved in the following order:

1. RFP

2. Contractor’s Proposal

4. SERVICES

A. Services. Contractor shall furnish to the City the scope or work described in the RFP (the “Services”) in accordance with this Agreement, the RFP and Contractor’s Proposal. It is the sole responsibility of the Contractor to read the scope of work and any specifications and understand them.

SAMPLE

B. Services Requiring Prior Approval. Contractor shall not commence work on any Services requiring prior written authorization as set forth in the RFP without approval from the City.

C. Additional Services. From the Effective Date and for the duration of this Agreement, the City may elect to have Contractor perform services that are not specifically described in the RFP but are related to the Services (“Additional Services”). In such event, Contractor shall perform such Additional Services for the compensation as determined by mutual written agreement of both Parties.

D. De-scoping of Services. The City reserves the right, in its sole discretion, to de-scope Services upon written notification to the Contractor. Upon issuance and receipt of the notification, the Contractor and the City shall enter into a written amendment reducing the Contractor’s compensation for the impacted Services by a sum equal to the amount associated with the de-scoped Services, if applicable, or as determined by mutual written consent of both Parties based upon the scope of work performed prior to issuance of notification.

5. EFFECTIVE DATE AND TERM OF AGREEMENT. This Agreement shall become effective and commence on the Effective Date and shall remain in effect until the Services are completed to the City’s satisfaction, unless terminated earlier pursuant to the terms of the Contract Documents.

6. TERMS OF PERFORMANCE

A. Representatives. Prior to the start of any work under this Agreement, Consultant shall designate a primary and alternate representative, who will have management responsibility for the Services and who have authority to act on technical matters and resolve problems with the Services and the Contract Documents, to the City in writing. Such designation shall include the contact information (including phone numbers) of Consultant’s representatives.

B. Non-exclusive Contract. The City specifically reserves the right to contract with other entities for the services described in the Contract Documents or for similar services if it deems, in its sole discretion, such action to be in the City’s best interest.

C. Status Reports. Contractor shall submit monthly written status reports to the City outlining the status of the Contractor’s work on the Services throughout the term of this Agreement. Each status report shall be a concise narrative description of activities to date and planned activities until the next status report. A final report, one (1) original and two copies, shall be submitted by Contractor to the City, along with all deliverables. If a monthly schedule submitted by the Contractor includes changes affecting the achievement of deliverables based on circumstances the Contractor believes to be a delay caused by the City, the Contractor should clearly identify those changes.

D. Reviews. Throughout this Agreement, Contractor shall allow representatives of the City to visit the offices and other places of Contractor’s work periodically without prior notice to monitor Contractor’s work completed or progress.

E. Contractor Responsibility. Contractor shall provide services of first quality, and the workmanship must be in accordance with customary standards of the various trades and professionals involved in the Services. The Services and the work associated therewith shall be high-quality in all respects. No advantage will be taken by Contractor in the omission of any part or detail of the Services. Contractor hereby assumes responsibility for all work, materials, equipment, and processes used in the Services, whether the same is manufactured by Contractor; performed by a subcontractor, or purchased readymade from a source outside Contractor’s company.

F. Compliance with Laws. Contractor shall comply with all federal, state, county, and local laws, rules and/or regulations, and lawful orders of public authorities including those set forth in this Agreement and that, in any manner, could bear on the provision of the Services under the Contract Documents. Omission of any applicable laws, ordinances, rules, regulations, standards or orders by the City in the Contract Documents shall be construed as an oversight and shall not relieve Contractor of its obligations to comply with such laws fully and completely. Upon request, Contractor shall furnish to the City certificates of compliance with all such laws, orders and regulations. Contractor shall be responsible for obtaining all necessary permits and licenses required for performance under the Contract Documents.

7. COMPENSATION

A. In consideration of Contractor’s faithful performance of the Services in accordance with the Contract Documents, the City agrees to pay Contractor pursuant to the prices and hourly rates as set forth in Contractor’s Proposal. However, all payments to Contractor individually and in the aggregate shall not exceed the maximum price set forth in the Total Contract Price, as provided in the City’s contract award, as further defined in the RFP. Payment shall be made only for work, which is actually performed and approved by the City. Contractor shall submit invoices to the City no later than the fifteenth (15th) day of the month immediately following the month in which the Services are completed. The City will make payment in accordance with the Florida Prompt Payment Act, Section 218.72, et. seq., Florida Statutes.

B. All invoices shall be submitted in accordance with the Florida Prompt Payment Act, Section 218.72, et. seq., Florida Statutes, with all details prescribed by the City in the RFP, and delivered to the following address:

City of Largo, Florida Attention:_____________

201 N. Highland Ave.

Largo, FL 33770

C. In the event of a disputed invoice, only that portion so contested will be withheld from payment and the undisputed portion will be paid.

8. TERMINATION

A. The City may terminate this Agreement with cause at any time immediately upon written notice to Contractor, if: (a) Contractor fails to fulfill or abide by any of the terms or conditions specified in the Contract Documents; (b) Contractor fails to perform in the manner called for in this Agreement; or (c) Contractor does not provide services in accordance with the requirements of the specifications or scope of work in the Contract Documents. In its sole discretion, the City may allow Contractor an appropriately short period of time in which to cure a defect in performance or non-performance. In such case, the City’s written notice of termination to Contractor shall state the time period in which cure is permitted and other appropriate conditions, if applicable.

B. The City may terminate the Agreement, without cause, by giving thirty (30) days’ advance written notice to the Contractor of its election to terminate this Agreement pursuant to this provision.

C. The Contractor may terminate this Agreement with cause at any time upon written notice to the City, after providing a notice to cure as set forth below, if the City is in material breach of the Contract Documents. If Contractor believes that the City is in material breach of the Contract Documents, Contractor shall give the City at least fifteen (15) days or more if reasonably necessary, to cure any such alleged breach. If the City does not cure said breach, Contractor may then terminate this Agreement upon providing written notice to the City.

9. WARRANTIES AND COVENANTS

A. Patent, Trademark, Copyright, and Trade Secret. Contractor warrants that the Services, and all goods and work associated therewith do not infringe on any patent, trademark, copyright or trade secret of any third parties and agrees to defend, indemnify and hold the City, its officers, agents, employees, trustees and its successors and assigns, harmless from and against any and all liabilities, loss, damage or expense, including, without limitation, court costs and reasonable attorneys’ fees, arising out of any infringement or claims of infringement of any patent, trade name, trademark, copyright or trade secret by reason of the sale or use of any goods or services purchased under this Agreement. The City shall promptly notify Contractor of any such claim. The City makes no warranty that the production, sale or use of goods or services under this Agreement will not give rise to any such claim and the City shall not be liable to Contractor for any such claim brought against Contractor. If any invention, improvement, or discovery of the

Contractor is conceived or first actually reduced to practice in the course of providing the Services under this Agreement, and that invention, improvement, or discovery is patentable under the laws of the United States of America or any foreign country, the Contractor agrees to notify the City immediately and provide a detailed report. The rights and responsibilities of the Contractor and the City with respect to such invention, improvement, or discovery will be determined in accordance with applicable Federal laws, regulations, policies, and any waiver thereof.

B. Covenants Against Gratuities. Contractor warrants that it has not offered or given gratuities (in the form of entertainment, gifts, or otherwise) to any official or employee of the City with a view toward securing favorable treatment in the awarding, amending, or evaluating performance of this Agreement.

C. E-Verify. Contractor shall utilize the U.S. Department of Homeland Security’s E- Verify System to verify the employment eligibility of: (a) all persons employed by Contractor throughout the term of this Agreement; and (b) all persons, including subcontractors, retained or hired by Contractor, regardless of compensation, to perform work on the services provided pursuant to the Contract Documents.

10. DELAY IN PERFORMANCE/FORCE MAJEURE

A. Time is of the Essence. The timely receipt of Services to the City is essential. If any Services are not performed on time, the City may cancel the unfilled portion of this Agreement for cause, contract for the Services elsewhere, and recover from Contractor any increased costs and damages thereby incurred by the City.

B. Unavoidable Delay. If performance of the Services, and all deliverables thereunder, is unavoidably delayed, the City may, in its sole and absolute discretion, extend the time for completion for a determined number of days of excusable delay.

A delay is unavoidable only if the delay was not reasonably expected to occur in connection with or during Contractor’s performance; was not caused directly or substantially by negligent errors, omissions, or mistakes of Contractor, its subcontractors, or its suppliers or their agents; was substantial; and, in fact, caused Contractor to miss delivery dates and could not adequately have been guarded against by contractual or legal means.

C. No Damages for Delay. Contractor shall not be entitled to any claim for damages on account of hindrances or delays in the work from any cause whatsoever, including any delays or hindrances caused by the City. This paragraph shall include, but not be limited to, any actions which result in delays in scheduling, substantial changes in scope of the Project or substantial increases in the costs of performing the work under the Contract Documents.

D. Notification. Contractor shall notify the City as soon as Contractor has, or should have had, knowledge that an event has occurred which will delay completion of the

Services. Within five (5) working days, Contractor will confirm such notice in writing, furnishing as much detail as is available and including any request for extension of time. Contractor shall supply, as soon as such data is available, any reasonable proofs that are required by the City to make a decision on any request for extension. The City will examine the request and any documents supplied by Contractor and will determine if Contractor is entitled to an extension and the duration of such extension. The City will notify Contractor of its decision in writing. It is expressly understood and agreed that Contractor will not be entitled to any extension and the granting of such extension is in the sole discretion of the City. It is further expressly understood that Contractor shall not be entitled to any damages or compensation, and will not be reimbursed for any losses, on account of delays resulting from any cause.

11. INSURANCE. Contractor shall comply with the insurance requirements set forth in the

RFP.

12. INDEMNIFICATION

A. As a supplement to the RFP’s Hold Harmless provision, Contractor shall assume control of the defense of any claim asserted by a third party against the City arising from or in any way related to this Agreement and, in connection with such defenses, shall appoint lead counsel, in each case at Contractor’s expense. Contractor shall have the right, at its option, to participate in the defense of any third party claim, without relieving Contractor of any of its obligations hereunder. If Contractor assumes control of the defense of any third party claim in accordance with this paragraph, Contractor shall obtain the prior written consent of the City before entering into any settlement of such claim. Notwithstanding anything to the contrary in this provision, Contractor shall not assume or maintain control of the defense of any third party claim, but shall pay the fees of counsel retained by the City and all expenses including experts’ fees, if (i) an adverse determination with respect to the third party claim would, in the good faith judgment of the City, be detrimental in any material respect of the City’s reputation; (ii) the third party claim seeks an injunction or equitable relief against the City; or (iii) Contractor has failed or is failing to prosecute or defend vigorously the third party claim. Each party shall cooperate, and cause its agents to cooperate, in the defense or prosecution of any third party claim and shall furnish or cause to be furnished such records and information, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in connection therewith.

B. If this is a contract for or in connection with any construction, alteration, repair or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith, then, in addition to the terms set forth in the RFP’s Hold Harmless provision, the monetary limitation on the extent of indemnification provided for in the RFP shall not be less than $1 million per occurrence, unless otherwise agreed by the Parties.

13. Funding. It is understood that this Agreement does not create any obligation to appropriate or make monies available for the purpose of the Agreement beyond the fiscal year in which the Agreement is executed. No liability shall be incurred by the City beyond the monies budgeted and available for this purpose. If funds are not appropriated by the City for any or all of this Agreement, the City shall not be obligated to pay any sums provided pursuant to this Agreement beyond the portion for which funds are appropriated. The City agrees to promptly notify Contractor in writing of such failure of appropriation, and upon receipt of such notice, this Agreement, and all rights and obligations contained herein, shall terminate without liability or penalty to the City.

14. ACCEPTANCE OF SERVICES. For all Services deliverables that require City acceptance as provided in the RFP the City will have ten (10) calendar days to review the deliverable(s) after receipt or completion of same by Contractor, and either accept or reject the deliverable(s) by written notice to the Contractor. If a deliverable is rejected, the written notice from the City will specify any required changes, deficiencies, and/or additions necessary. Contractor shall then have seven (7) calendar days to revise the deliverable(s) to resubmit and/or complete the deliverable(s) for review and approval by the City, who will then have seven (7) calendar days to review and approve, or reject the deliverable(s).

Upon final acceptance of the deliverable(s), the City will accept the deliverable(s) in writing.

15. CHANGE ORDERS. Except in an emergency, no change in the work or services shall be made by the Contractor unless authorized by a prior written, duly executed Change Order.

The Contractor shall submit the proposed Change Order to the City and the Change Order must be approved and signed by both the City’s authorized representative, and the Contractor. If the Contractor proceeds with additional work or services prior to approval and execution of a Change Order, the Contractor waives any claim to and shall not receive any compensation for such work.

In the event of an emergency, the Contractor shall inform the City of the circumstances immediately. The City may authorize the Contractor to proceed with the work to resolve the emergency only. However, the contract price may be changed only by a duly authorized Change Order signed by the City’s authorized representative.

16. DISPUTES, BREACHES, DEFAULTS, OR OTHER LITIGATION.

A. Claims for Damages. Should Contractor suffer injury or damage to person or property because of any act or omission of the City or of any of its employees, agents or others for whose acts the City is legally liable, a claim for damages therefore shall be made in writing to the City within five (5) days of when Contractor knew or should have known of such injury or damage. The claim shall be specify in the reference line or title of the document, in all capitalized, bolded letters that it is a notice of a claim for damages. The failure to provide timely notice of such claim in accordance with this provision shall constitute a waiver of such claim.

B. Rights and Remedies. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City or Contractor shall constitute a waiver of any right or duty afforded any of them under this Agreement, except as provided in this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

C. Attorneys’ Fees. In the event of legal action or other proceeding arising under this Agreement, the City shall be entitled to recover from Contractor all its reasonable attorneys’ fees and cost incurred by the City in the prosecution or defense of such action, or in any post-judgment or collection proceedings and whether incurred before suit, at the trial level or at the appellate level. This shall include any bankruptcy proceedings filed by or against Contractor. The City also shall be entitled to recover any reasonable attorneys’ fees and costs incurred in litigating the entitlement to attorneys’ fees and costs, as well as in determining the amount of attorneys’ fees and costs due to the City. The reasonable costs to which the City will be entitled include costs that are taxable under any applicable statute, rule, or guideline, as well as costs of investigation, copying costs, electronic discovery costs, mailing and delivery charges, costs of conducting legal research, consultant and expert witness fees, travel expenses, court reporter fees and mediator fees, regardless of whether such costs are taxable under any applicable statue, rule or guideline.

17. LIABILITY

A. Neither the City nor the Contractor shall make any express or implied agreements, guaranties or representations, or incur any debt, in the name of or on behalf of the other Party. Neither the City nor the Contractor shall be obligated by or have any liability under any agreements or representations made by the other that are not expressly authorized under this Agreement. The City shall have no liability or obligation for any damages to any person or property directly or indirectly arising out of the operation by Contractor of its business, whether caused by Contractor’s negligence or willful action or failure to act.

B. The City will have no liability for any sales, service, value added, use, excise, gross receipts, property, workers’ compensation, unemployment compensation, withholding or other taxes, whether levied upon Contractor or Contractor’s assets, or upon the City in connection with Services performed or business conducted by Contractor. Payment of all such taxes and liabilities shall be the responsibility of Contractor.

18. RIGHT TO OWNERSHIP. All work created, originated, and/or prepared by Contractor in performing Services pursuant to the Agreement, including all records, tracings, plans, specifications, maps, evaluations, reports, technical data, working papers, and other documentation or improvements related thereto, to the extent that such work, products, documentation, materials or information are described in or required by the Services, shall be the City’s property when the applicable Services are completed and accepted, if acceptance is required under this Agreement, and the City has made payment of the sums due therefore. The ideas, concepts, know-how or techniques developed during the course of this Agreement by the Contractor or jointly by Contractor and the City may be used by the City without obligation of notice or accounting to the Contractor. Any data, information or other materials furnished by the City for use by Contractor under this Agreement shall remain the property of the City.

19. MISCELLANEOUS PROVISIONS

A. Entire Agreement. The Contract Documents, including all exhibits, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous written or oral negotiations, agreements, proposals, and/or understandings. There are no representations or warranties unless set forth in the Contract Documents.

B. Notices. All notices required or made pursuant to this Agreement shall be made in writing and sent by certified U.S. mail, return receipt requested, addressed to the following:

To Contractor:

To the City:

City of Largo, Florida Attn: ______________ 201 N. Highland Ave.

Largo, FL 33770

With required copy to:

Alan S. Zimmet, B.C.S.

Bryant Miller Olive P.A.

400 North Tampa Street, Suite 1600 Tampa, FL 33602

Either Party may change its above noted address by giving written notice to the other Party in accordance with the requirements of this Agreement.

C. Waiver of Remedies for any Breach. In the event that the City elects to waive its remedies for any breach by Contractor of any covenant, term, or condition of this Agreement, such waiver by the City shall only be valid if set forth in writing and shall not limit the City’s remedies for any succeeding breach of that or of any other term, covenant, or condition of this Agreement.

D. Assignment. The terms and provisions of this Agreement shall be binding upon the Parties and their respective partners, successors, heirs, executors, administrators, assigns and legal representatives. Notwithstanding the foregoing, a party’s rights and obligations under this Agreement may only be transferred, assigned, sublet, subcontracted, mortgaged, pledged or otherwise disposed of or encumbered in any way with the other party’s prior written consent.

E. Modification. The Contract Documents may not be amended or altered without prior written approval by the City. Contractor shall be liable for all costs resulting from and/or for satisfactorily correcting any specification change not properly ordered by written modification to the Contract Documents and signed by the City.

F. Controlling Law and Venue. This Agreement shall be construed by and controlled under the laws of the State of Florida. The Parties consent to jurisdiction over them in the State of Florida and agree that venue for any state action arising under this Agreement shall lie solely in the courts located in Pinellas County, Florida, and for any federal action shall lie solely in the United States District Court, Middle District of Florida, Tampa Division.

G. No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and shall not be construed as a benefit to any third parties, including but not limited to the general public, constituents or citizens of the City, nor shall it be construed as enforceable by any third parties

H. Headings and Section References. The headings and section references in this Agreement are inserted only for the purpose of convenience and shall not be construed to expand or limit the provisions contained in such sections.

I. Authorization. The Parties to this Agreement represent and warrant that they are authorized to enter into this Agreement without the consent and joinder of any other party and that the parties executing this Agreement have full power and authority to bind their respective parties to the terms hereof.

J. Electronic Signatures. This Agreement may be executed by electronic signature technology and such electronic signature shall act as the Parties’ legal signatures on this Agreement and shall be treated in all respects as an original handwritten signature.

K. Severability. If any one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby and this Agreement shall be treated as though the invalidated portion(s) had never been a part hereof.

L. Foreign Country of Concern Disclosure. Pursuant to section 286,101, Florida Statutes, the Contractor shall disclose any current or prior interest of, any contract with, or any grant or gift received from a Foreign Country of Concern, as defined below, if such interest, contract, or grant or gift has a value of $50,000 or more and such interest existed at any time or such contract or gran of gift was received or in force at any time during the previous five (5) years.

For purposes of this section, “Foreign Country of Concern” means the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Maduro, or the Syrian Arab Republic, including any agency of or any other entity under significant control of such foreign country of concern.

M. Mutual Drafting. This Agreement is the product of mutual drafting, each party having the opportunity to be represented by counsel, and therefore shall not be construed against either party.

IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed on the date first above written.

____________________ CITY OF LARGO, FLORIDA

“CONTRACTOR” “THE CITY”

By: ______ By:_________________________________ Name:_______________________________ Title:________________________________ Duly Authorized Designee

WITNESS/ATTEST: Attest:

By:__________________________________ ____________________________________ City Clerk

Name:_________________________________

Reviewed and Approved:

By:

Alan S. Zimmet, City Attorney